Florida Injury Attorney Blawg

October 11, 2024

Jeffrey P. Gale, P.A. // Prohibited Florida Workers’ Compensation Balance Billing

A medical provider authorized by an employer or workers’ compensation insurance carrier to furnish care to an injured worker is paid based on a fee schedule. (Section 440.13(b), Florida Statutes allows for deviations by agreement.)

Fee schedule payment amounts are always below the provider’s usual and customary charge. However, balance billing by the provider, i.e., an effort to collect from the employee an amount in excess of the fee schedule, is prohibited under Chapter 440 and section 559.72(9), Florida Statutes. In fact, 559.77 creates a civil remedy against medical providers who engage in such balance billing.

In Sun Bank/South Florida, N.A. v Baker, 632 So.2d 669 (Fla. 4th DCA 1994) and Freshwater v Baker, 707 So.2d 937 (Fla. rd DCA 1998), workers’ compensation authorized medical providers brought suit against injured workers to recover amounts above what they accepted in payment from the workers’ compensation carriers. In each case, the injured worker had made a separate recovery from a third party responsible for causing the accident. (It is not uncommon for an employee hurt in the course and scope of his or her employment to also have a cause of action against a third-party, i.e., an entity other than the employer.) In Sun Bank, the injured worker even signed an agreement with the doctor promising to pay any part of the bill not paid by an insurer and containing an acknowledgment that the agreement “constitutes a lien against any recovery for any liability from any source whatsoever.”

September 20, 2024

Jeffrey P. Gale, P.A. // Medicare Set-Aside (MSA) Issues in Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

Medicare is a taxpayer-funded federal health insurance program that pays some health insurance costs. People are eligible for Medicare when they turn 65 years old. In addition, Medicare is automatically available 24 months after becoming entitled to Social Security Disability Income (SSDI). (Date of entitlement is the date of disability plus a five month waiting period. For example, if the date of disability is June 1, 2024, the date of entitlement is November 1, 2024, meaning that the earliest the applicant will qualify for Medicare is November 1, 2026 — there are exceptions to this rule if the disabling diagnosis is End Stage Renal Disease or ALS.)

Medicare will not pay the medical expenses associated with a job accident while the workers’ compensation carrier is paying for the care. This is simple and straightforward. Matters become more complicated when a settlement of the workers’ compensation case is contemplated.

While the workers’ compensation carrier will not pay for medical care after a settlement, Medicare places conditions on paying for post-settlement accident-related medical services. Before it begins paying, Medicare requires that a portion of the settlement proceeds be depleted on accident-related medical expenses.

This requirement does not apply in every instance. It is only triggered under these circumstances:

The total workers’ compensation settlement amount is over $25,000 and the claimant is a Medicare beneficiary.
The claimant is not a Medicare beneficiary, but expects to enroll within 30 months of the settlement date, and the total settlement amount is over $250,000.

When the requirement is triggered, Medicare should be presented with a proposed amount to be paid from the workers’ compensation settlement before the settlement becomes binding. While the settlement does not have to be made contingent on Medicare’s approval, the workers’ compensation insurance carrier will insist on it. In most cases, it’s also a good idea for the claimant. The proposal is called a Medicare Set-Aside (MSA).

August 28, 2024

Jeffrey P. Gale, P.A. // Releasing Active Tortfeasors Does Not Release Vicariously Liable Tortfeasors

by Jeffrey P. Gale, P.A.

Active tortfeasors become legally liable for engaging in negligent conduct. Passive tortfeasors become liable for the negligent conduct of active tortfeasors through the legal principle known as vicarious liability. Examples include owners of motor vehicles whose permissive drivers cause crashes and employers for the acts of their employees.

Nowadays, active tortfeasors can be released from cases, even before a lawsuit is brought, without sacrificing the case against the passive tortfeasors. It wasn’t always this way in Florida.

Common law used to reason that settling with the active tortfeasor discharged the liability of the passive tortfeasor. “At common law and before the enactment of statutes to the contrary, a release of one joint tortfeasor released the other, Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914).” Safecare Health Corp. v. Rimer, 620 So. 2d 161, 164 (Fla. 1993)(McDonald, J. dissenting).

In modern times, at least, the Florida Legislature has, for the most part, not been friendly to Plaintiffs. It has crafted statutes making it harder to gain access to the courthouse and to obtain just compensation for serious injuries once inside. An exception to this history concerns statutory changes that paved the way to the present state of the law regarding settlements with active tortfeasors.

The first statutory change was enacted in 1957. It provided that

A release or covenant not to sue as to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.

In Hertz Corp. v Hellens, 140 So. 2d 73 (Fla. 2d DCA 1962), the court interpreted the statute as applying “to all tort-feasors, whether joint or several, including vicarious tortfeasors.”

Subsequent Florida statutes — 46.015, 768.041, and 768.31 — and case law — e.g., Stephen Bodzo Realty, Inc. v. Willits International Corp., 428 So. 2d 225 (Fla. 1983), Florida TomatoPackers, Inc. v. Wilson, 296 So. 2d 536, 538 (Fla. 3d DCA 1974), JFK Medical Center, Inc. v. Price, 647 So. 2d 833 (Fla. 1994), Crosby v. Jones, 705 So. 2d 1356, (Fla. 1998) — have brought us to the present state where it is safe to settle with, and dismiss, actively liable tortfeasors. However, while this may be true, caution must still be exercised with the settlement release.

First and foremost, avoid any language that could be construed as releasing other defendants, including vicariously liable tortfeasors. As further protection, add language to the release making it clear that it does not apply to any other defendants including but not limited to vicariously liable defendants.

Advantages of settling with the active tortfeasor include gaining access to funds and, in some instances, getting the active tortfeasor to feel friendlier to the plaintiff’s side.

August 1, 2024

Jeffrey P. Gale, P.A. // Volunteer Immunity in Florida for Simple Negligence

by Jeffrey P. Gale, P.A.

Some states exempt charities from liability for damages caused by their servants. Florida does not. Nicholson v. Good Samaritan Hospital, 199 So. 344 (Fla. 1940). This is consistent with the legal doctrine known as respondeat superior, which holds employers liable for the negligent or purposeful acts of their employees. See Valeo v. East Coast Furniture Co., 95 So. 3d 921, 925 (Fla. 4th DCA 2012) (negligence of employee imputed to employer when employee “committed the negligent act: (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer.”). This liability, also known as vicarious liability, applies even if the employer has done nothing wrong.

Most jurisdictions, either by state or federal law, exempt volunteers from all liability for injuries caused by negligence. This is an exception to the general rule that employees are liable for their negligence.

Congress enacted the “Volunteer Protection Act of 1997”

“to promote the interests of social service program beneficiaries and taxpayers and to sustain the availability of programs, nonprofit organizations, and governmental entities that depend on volunteer contributions by reforming the laws to provide certain protections from liability abuses related to volunteers serving nonprofit organizations and governmental entities.”

42 USC 14501 Sec. 2(b)

The Act preempts state law unless the state law provides greater protections to volunteers. Interestingly, it also authorizes states to enact laws under certain prescribed circumstances allowing civil suits against volunteers. Section 3(b).

July 21, 2024

Jeffrey P. Gale, P.A. // Comparative Fault Not Part of Manfredo Formula Equation

by Jeffrey P. Gale, P.A.

Not infrequently, both a workers’ compensation case and a personal injury liability case will arise from the same accident. For example, a construction site supervisor involved in a motor vehicle crash while traveling to Home Depot for supplies can pursue workers’ compensation benefits from the employer and civil liability damages from the at-fault party.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

June 12, 2024

Jeffrey P. Gale, P.A. // Sovereign Immunity Strikes Again — Not Good!!!

by Jeffrey P. Gale, P.A.

We just received a telephone call from a heartbroken mother whose 47-year old daughter died a few years ago after falling into a diabetic coma. A well-being, or safety check, call was made to the local police department a day after the young woman phoned to inform her employer that she wasn’t feeling well. A law enforcement officer went to her home that day, but her parents believe that the officer failed to take appropriate actions as her car was in the driveway and the windows of her home were open even though it was raining. The officer did not make contact with the woman or attempt to go into the home. She was found deceased in her home two days later. The mother believes her daughter was incapacitated but alive at the time of the safety call and could have been rescued if she had been discovered then and emergency care rendered.

June 5, 2024

Jeffrey P. Gale, P.A. // Positive Course Correction in Florida Workers’ Compensation Law

by Jeffrey P. Gale, P.A.

I have railed for years against various aspects of Florida’s workers’ compensation system. One of my main targets has been section 440.13(9)(c), Florida Statutes, covered under the section of the statute dealing with “Expert Medical Advisors.” What bothered me about the law is that it excluded workers’ compensation judges, known as judges of compensation claims (JCC), from being able to perform an important job function.

Before the 2023 Florida legislative session, when there was a “disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work,” the JCC was mandated by 440.13(9)(c) to order the injured employee to be evaluated by an expert medical advisor whose opinion was presumed to be correct unless clear and convincing evidence demonstrated otherwise. Rarely did a JCC rule against the presumption.

May 2, 2024

Jeffrey P. Gale, P.A. // Gamesmanship Practiced by Florida Workers’ Compensation Doctors

by Jeffrey P. Gale, P.A.

Florida law authorizes employers and their workers’ compensation insurance carriers (“E/C”) to choose every one of an injured worker’s treating doctors. See, sections 440.13(2)(a) & (f), Florida Statutes. They pick medical providers, sometimes called “The Usual Suspects,” from whom they can expect to receive favorable opinions. Because the doctors like the steady and easy income, they play along. So much for honoring the Hippocratic Oath.

To receive workers’ compensation wage loss benefits, also known as indemnity benefits (see, sections 440.13(2)&(4), Florida Statutes), the burden is on the injured worker (a/k/a, Claimant) to establish a connection between the work-related injuries and any wage loss. In 2024, the weekly wage loss benefit can be as much as $1,260.

Medical providers authorized by the E/C are required to complete form DWC-25 after each appointment. Section IV of the form addresses the injured worker’s “Functional Limitations and Restrictions.” It contains three paragraphs (numbers 21, 22, and 23) for this purpose with corresponding boxes for the provider to check. Paragraph 21 indicates that the Claimant does not have any functional limitations. Paragraph 22 provides that the Claimant’s injuries are of such severity he cannot work. Paragraph 23 says that the Claimant can work with restrictions.

April 29, 2024

Jeffrey P. Gale, P.A. // Florida Fails Again at Mandating Bodily Injury Insurance Coverage

by Jeffrey P. Gale, P.A.

For the eighth year in a row, the Florida Legislature has considered but failed to make bodily injury (BI) insurance coverage mandatory for every owner or operator of a motor vehicle required to be registered in this state. The two bills proposed for this reason during the recently concluded legislative session failed to receive a committee hearing.

Florida and New Hampshire are the only two states in the Union that do not require all drivers to carry BI coverage.

What Florida does require is personal injury protection or PIP and property damage (PD) liability coverage in the amount of $10,000 because of damage or destruction to the property of others in a crash.

Three years ago, Florida’s Legislature passed a bipartisan bill that would have required BI coverage. Pressured by the insurance industry, Gov. Ron DeSantis vetoed the bill. This year’s proposed bills addressed some of the concerns expressed by Gov. DeSantis when he vetoed the bill. Nevertheless, the insurance industry kept the bills from gaining traction.

April 28, 2024

Jeffrey P. Gale, P.A. // Denial of Florida Workers’ Compensation Temporary Partial Disability Benefits Based on Voluntary Limitation of Income and Termination for Cause

by Jeffrey P. Gale, P.A.

We have a case in the office where our client, an injured worker, is being denied temporary partial disabililty (TPD/440.15(4)) benefits based on two defenses. The defenses, voluntary limitation of income and termination for cause, are at odds with one another.

Voluntary Limitation of Income Defense

Our client was fired from her job. She did not resign or refuse employment. In Carcamo v. Business Representation Internation & North River Ins. Co., 37 So. 3d 901 (Fla. 1st DCA 2010), the injured worker voluntarily resigned from suitable employment. The employer/carrier (E/C) denied her claim for TPD benefits. The judge of compensation claims (JCC) sided with E/C. The First DCA disagreed with the JCC and remanded the case for further factual findings.

The appellate court pointed out that a voluntary resignation does not alone support the denial of TPD benefits. Carcamo at 901. What must be taken into account is whether the claimant’s refusal was justifiable, section 440.15(6), Florida Statutes, and the continued availability of the job. See Moore v. Servicemaster Commercial Servs., 19 So.3d 1147 (Fla. 1st DCA 2009) (although employer not required to continually reoffer job to avail itself of statutory defenses based on unjustified voluntary limitation of income, employer must establish continued availability of job for each applicable period to obtain continued benefit of defense).

Our client, a single mother with sole custody of a young child, sustained a significant injury that required extensive surgical repair. After a lengthy recovery period, she was offered light duty work by the same employer. At the time of the job offer, our client and her daughter were living at her mother’s home in Georgia. Due to logistical issues, our client, who otherwise had an exemplary work history, showed up for work one week late. She was fired a few days later. She has not been contacted since by the employer to return to work.

FLORIDA INJURY ATTORNEY BLAWG