Month: February 2015

Florida Workers’ Comp in The Year of the Supreme Court

Christopher Smith had the pleasure of moderating a judicial panel on ethical practices at The Florida Workers’ Comp in the Year of the Supreme Court program presented by Chief Judge Langham and the Office of the Judges of Compensation Claims on Friday, February 6, 2015. The event was held at the First District Court of Appeal in Tallahassee. The panel discussed ethical behavior in the context of attorney’s fees, motion to tax costs, motions to enforce, motion for sanctions, among other topics.

Christopher Smith is pictured here, along with other claimant attorneys and past presidents of Florida Workers’ Advocates who were in attendance at the prorgam, Brian Sganga (top left), Ray Malca (top right), and Rosemary Eure (bottom right).

social media bar opinion

Bar Ethics Opinion Offers Advice on Social Media

This question is now commonly posed to an injured worker during his or her deposition: do you use Facebook? As social media becomes more integral to our every day lives, it also has become more integral to litigation, which can pose issues in terms of deleting information. Social media presence is a subject that every Florida work comp lawyer should discuss with a client at the initial consultation. However, discussing social media is a matter that attorneys must handle very carefully. On one hand, an attorney cannot advise clients to “clean up” their Facebook page because it may be viewed as destruction of evidence. [1] On the other, discussing the way posts and information can be viewed by an adversarial party is an absolute must.

There is a notorious case from Virginia that ended up with an attorney being sanctioned over half a million dollars for a discovery violation related to Facebook and the destruction of evidence after litigation had commenced. With infamous stories like that, this subject is touchy among practitioners. Due to the complex nature of this subject, a member of the bar recently posed the following four questions to the ethics committee:

  • Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are related directly to the incident for which the lawyer is retained?
  • Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are not related directly to the incident for which the lawyer is retained?
  • Pre-litigation, may a lawyer advise a client to change social media pages/accounts privacy settings to remove the pages/accounts from public view?
  • Pre-litigation, must a lawyer advise a client not to remove posts, photos, videos and information whether or not directly related to the litigation if the lawyer has advised the client to set privacy settings to not allow public access?

The ethics opinion issued in response to the questions above last month. The proposed opinion addresses the issues in detail, and can be viewed here. However, the relevant points are as follows:

  • A lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. [2]
  • Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.[3]

While this opinion does provide lawyers with some direction on how to advise clients, there is still much gray area and relevant considerations that will come up on a case-by-case basis.

Christopher J. Smith P.A. is an injury-focused law firm in Tampa, Florida. If you have a question regarding an injury or other question for a workers comp attorney in Tampa, Fl, please do not hesitate to contact us. We offer free consultations, and there is never a fee if we don’t recover benefits on your behalf.

[1] “In the disciplinary context, at least one lawyer has been suspended for 5 67 years for advising a client to clean up Facebook page, causing the removal of photographs and 68 other material after a request for production had been made. In the Matter of Matthew B. 69 Murray, 2013 WL 5630414, VSB Docket Nos. 11-070-088405 and 11-070-088422 (Virginia 70 State Bar Disciplinary Board July 17, 2013).”  Professional Ethics of The Florida Bar, Proposed Advisory Opinion 14-1.

[2] Professional Ethics of The Florida Bar, Proposed Advisory Opinion 14-1.

[3] Id.

One-Time Change; The Five Day Controversy

The Florida Workers’ Compensation Act gives an injured worker the right, once during the life of their case, to make a request for a one-time change in treating physicians. However, except in very unusual circumstances, the carrier retains the right to select the one-time change physician. The only exception to this general rule of a carrier’s right to select is if the carrier does not respond to the claimant’s request for a one-time change physician within five days. Under that circumstance, the individual would be permitted to select his or her own physician.

Five days seems fairly straight forward. However, the most obvious question is does that mean five calendar days or business days? In the Hinzman case decided in 2013, the Judge of Compensation Claims (JCC) ruled that the “5 days” in section 440.13(2)(f), Florida Statutes (2011), meant business days rather than calendar days. [1] The First District Court of Appeal did not agree, and held the five days listed in the statute means five calendar days rather than business days.  The court explained:

“Seen another way, because the Legislature specified “business days” elsewhere in section 440.13, canons of statutory interpretation (particularly the presumption of consistent usage) dictate that the Legislature’s use of the unmodified term “days” here refers to consecutive or calendar days. Although the Legislature used the terms “calendar days” and “consecutive days” in other sections of chapter 440, the wording of those statutes, unrelated to the topic of this statute (permitting injured employees to request “one change of physician during the course of treatment for any one accident” regardless of medical necessity for such), does not affect the analysis of the statute in question here. Policy concerns asserted by the Employer/Carrier here are more properly directed to the Legislature, to address or not, as it would choose.”

[1] Hinzman v. Winter Haven Facility Operations LLC, 109 So. 3d 256 (Fla. App., 2013).

If you have questions about a one-time change in treating physician issue, or have questions for a workers comp attorney in Tampa, Fl, please do not hesitate to contact us to speak with an experienced Tampa work comp lawyer today. We offer free consultations, and there is never a fee if we don’t recover benefits on your behalf.