Florida Injury Attorney Blawg

June 5, 2025

Jeffrey P. Gale, P.A. /// Debunking a Florida Workers’ Compensation Religious Doctrine

The belief that a physician’s prescription must accompany every petition for benefits seeking authorization of medical care has taken on religious doctrine status. This blog attempts to debunk the doctrine.

A petition for benefits is the workers’ compensation equivalent of a complaint in the civil law arena. It is the vehicle used to initiate litigation against the employer and its insurance carrier (E/C).

Section 440.192, Florida Statutes outlines the information that must be identified or itemized in every petition for benefits. Its purpose is to enable E/C to make informed decisions.

Section 440.192(2)(i) is the section on which the misguided doctrine is based. It reads as follows:

The type or nature of treatment care or attendance sought and the justification for such treatment. If the employee is under the care of a physician for an injury identified under paragraph (c), a copy of the physician’s request, authorization, or recommendation for treatment, care, or attendance must accompany the petition.

Practitioners and judges have come to interpret this section as requiring a doctor’s written request with every claim for medical care. They interpret the two sentences as being intertwined. E/C will file a Motion to Dismiss every time a claim for medical benefits is filed without a physician’s written request.

I disagree with this commonly accepted interpretation. I believe that each sentence stands alone and applies to different scenarios without any overlapping application to the other.

May 30, 2025

Jeffrey P. Gale, P.A. // Florida PIP Payments in Uber Crashes

by Jeffrey P. Gale, P.A.

Despite having many potential sources of payment for medical expenses in ride share-related crashes, Uber riders sometimes end up holding the bag.

The most common payment sources are PIP, MedPay, health insurance, Medicare, Medicaid, and bodily injury liability insurance.

With a few exceptions, every owner or registrant of a motor vehicle required to be registered and licensed in Florida must maintain PIP insurance. See Florida Statute 627.733. PIP, which applies without regard to fault, covers medical expenses and lost wages. Most Florida policies limit PIP coverage to $10,000 and apply deductibles.

One of the benefits of the ride share industry is that people can go without owning a vehicle. However, PIP is not automatically available to those PIP passengers who live in Florida and do not reside with a relative who maintains PIP insurance. Likewise, other medical insurance may not be available.

May 7, 2025

Jeffrey P. Gale, P.A. /// Interplay Between Florida’s Workers’ Compensation Lien Law (FS 440.39) and UM/UIM Insurance (FS 627.727)

by Jeffrey P. Gale, P.A.

It is not unusual for employees to be injured in motor vehicle crashes while in the course and scope of performing their job duties. Such incidents implicate various types of insurance coverage.

Regardless of fault, i.e., whether or not the employee caused the crash, injured employees should be covered by workers’ compensation, PIP, and health insurance (including Medicare). Workers’ compensation and PIP are primary over Medicare, meaning Medicare will expect workers’ compensation and PIP to pay before it does, and if it does pay, to be repaid from the proceeds of a workers’ compensation or personal injury settlement.

If the injured employee is not at-fault, he or she can pursue a civil remedy for damages against the at-fault driver and the vehicle owner if different than the driver. The funds for the recovery would come from the liable party’s bodily injury (BI) insurance coverage and/or personal assets.

In some instances, the liable party may not maintain bodily injury insurance or the BI coverage limits may not be enough to pay the full measure of damages. Florida offers an optional type of insurance coverage to protect the injured party under those situations. The type of coverage is known as uninsured and underinsured vehicle coverage (UM/UIM). The purpose of the insurance is “for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.” Section 627.727(1), Florida Statutes (2025). Basically, UM and UIM substitute for the inadequacies in coverage of the at-fault party.

April 30, 2025

Jeffrey P. Gale, P.A. /// Uber Drivers and Passengers, Beware!

by Jeffrey P. Gale, P.A.

Much has been written about the type of insurance coverage available to Uber passengers and other third parties for accidents caused by Uber drivers. Less has been written about the coverage available to Uber drivers and their passengers for injuries caused by third parties such as other drivers.

Currently, we are handling a case for an Uber driver who was hurt through the negligence of another driver. Our client’s passenger was also hurt.

Florida motor vehicle insurance policies offer a variety of coverages. For individuals, only Property Damage Liability and PIP are mandatory. The other available coverages are Uninsured Motorist/Underinsured Motorist (UM/UIM), Comprehensive, Collision, and Medical Payments. A premium is charged for each type of coverage.

Uber maintains insurance coverage in Florida with Progressive. We received a copy of the policy applicable to our accident. The available coverages are:

Liability to Others – Bodily Injury and Property Damage Liability – $1,000,000 combined single limit
Comprehensive – $2,500
Collision – $2,500
Medical Payments – $5,000 each person

Uber rejected UM/UIM. PIP was not an option.

April 29, 2025

Jeffrey P. Gale, P.A. /// Personal Injury Liability Cases — The Perils of Ignoring Medicare’s Future Interest

by Jeffrey P. Gale, P.A.

Our law firm handles both workers’ compensation and personal injury cases, claimant’s/plaintiff’s side only. For years we have been dealing with Medicare Set-Asides (MSA) in our workers’ compensation cases. We have not been doing it in our personal injury cases. It may be time to start.

A Medicare Set-Aside is a legal device used to make sure Medicare covers future medical expenses associated with accident-related injuries.

When Medicare began in 1966, it was the primary payor for all claims except for those covered by Workers’ Compensation, Federal Black Lung benefits, and Veteran’s Administration (VA) benefits. In 1980, Congress passed legislation to expand the exception list to include the following plans:

Liability insurance plans (automobile, premises)
No Fault (PIP)
Self-Insured

All of these plans, rather than Medicare, are considered primary payors of medical expenses covered by the respective policies. In 2007, Congress passed legislation imposing reporting requirements on primary payors. The requirements, which involve furnishing Medicare with claim-related information, are laid out in section 111 of the Medicare, Medicaid, and Schip Extension Act of 2007. The purpose of the requirements is to keep Medicare from paying for medical care that is otherwise the responsibility of primary payors. Congress has decided that Medicare, which is a taxpayer-funded program, should not bear primary responsibility for medical expenses covered by insurance policies and self-insureds.

April 18, 2025

Jeffrey P. Gale, P.A. /// Premises Liability: Landlord’s Post-possession Duty to Repair Dangerous Defective Conditions

by Jeffrey P. Gale, P.A.

Our law firm receives a steady stream of inquiries from tenants, mostly residential, regarding dangerous conditions inside of their units. If someone has been injured, we ask if the landlord or maintenance company had notice of the dangerous condition in advance of the incident. If nobody has yet been injured, we instruct the callers to notify their landlord and maintenance company in writing (email will do).

The reason for this is because landlords and maintenance companies have a continuing duty to repair dangerous conditions upon notice of their existence, unless waived by the tenant. Mansur v. Eubanks, 401 So. 2d 1328, 1330 (Fla. 1981 and § 83.51(1), Fla. Stat. (2021).

March 25, 2025

Jeffrey P. Gale, P.A. /// Florida Workers’ Compensation Permanent Total Disability (PTD) Benefits

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system, outlined in Chapter 440 of Florida’s statutes, allows four different types of wage loss benefits divided into two categories. The categories are temporary and permanent indemnity benefits.

There are two types of temporary indemnity benefits, Temporary Total Disability (TTD) and Temporary Partial Disability (TPD). Section 440.15(2)(a) describes TTD as being a “disability total in quality but temporary in quality….,” while TPD, described in section 440.15(4)(a), is the monetary benefit paid when the person’s disability is less than total, meaning the injured employee is capable of performing some type of physical work activity.

TTD is paid at 2/3 of the injured employee’s average weekly wage (AWW), while TPD is “80 percent of the difference between 80 percent of the employee’s average weekly wage and the salary, wages, and other remuneration the employee is able to earn postinjury….” For example, if AWW is $1,000, the TTD and TPD payments are $666.70 and $640.00, respectively. The good news is that workers’ compensation indemnity benefits are not taxable.

Temporary indemnity benefits end once the injured employee is placed at maximum medical improvement (MMI), defined in 440.02(10) as follows: “‘Date of maximum medical improvement’ means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” (Temporary benefits also end as a matter of law after 260 weeks of payments. Typically, MMI is reached well before 260 weeks, or 5 years, of temporary payments are made.)

Fights often ensue over disability status, partial and total, and MMI. Because the insurance carriers get to select the treating doctors, those handpicked doctors typically offer opinions in these areas, among others, that are helpful to the carriers. While there are ways to fight back, the options are limited by the system’s decided slant in favor of employers and carriers on most points.

March 18, 2025

Jeffrey P. Gale, P.A. /// Practice Pointer: Keep Your Eye On the Ball

by Jeffrey P. Gale, P.A.

Everyone is familiar with the idiom, “Keep your eye on the ball.” What it means, quite simply, is to keep one’s attention focused on the matter at hand. Lawyers must remember this during intense situations.

Last week we experienced just such an intense situation. In a case involving severe personal injuries sustained by our client, we attended a hearing on the Defendant’s motion for summary judgment. The corporate defendant was asking the court to enter a judgment that it was not vicariously liable for the negligence of its agent. In other words, Defendant was asking the court to throw out the case against it. Serious stuff.

Defendant’s motion was brought under Florida Rule of Civil Procedure 1.510, which reads in pertinent part as follows:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (bold added for emphasis).

The burden is on the moving party (in our case, the Defendant) to demonstrate the absence of genuine material facts, that no material issues remain for trial, and that the movant is entitled to judgment as a matter of law. See, Florida Rule of Civil Procedure 1.510(a). “An issue is genuine if ‘a reasonable trier of fact could return judgment for the non-moving party,’ and ‘[a] fact is material if it might affect the outcome of the suit under the governing law.’” Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11^th Cir. 2008) and Anderson v. Liberty Lobby, Inc., 477 U.S. 22, 247-48 (1986).

January 16, 2025

Jeffrey P. Gale, P.A. /// Don’t Underestimate the Potency of Florida Workers’ Compensation Statute 440.39

by Jeffrey P. Gale, P.A.

It is not uncommon for a personal injury case and a workers’ compensation case to arise out of the same accident. This is often the case when an employee is hurt in the course and scope of his job through the negligence of a third-party. Our law firm handles both types of cases.

Florida Statute 440.39 gives the employer or its workers’ compensation insurance carrier, as the case may be, lien rights in the proceeds of any recovery made in the personal injury liability case. In consideration of this right, the employer and carrier have a “duty to cooperate” with the employee in prosecuting claims and potential claims against third-party tortfeasors. See sec. 440.39(7).

The court in Shaw v. Cambridge Integrated Servs. Group, Inc., 888 So.2d 58, 64 (Fla. 4th DCA 2004), declared that the duty to cooperate found in section 440.39(7) is “[o]ne of the most important rules and conditions stated in the Workers Compensation statute.” For example, an employer/carrier’s failure to cooperate can have adverse consequences on their lien rights. 440.39(3)(a) provides that

the failure by the employer or carrier to comply with the duty to cooperate imposed by subsection (7) may be taken into account by the trial court in determining the amount of the employer’s or carrier’s recovery, and such recovery may be reduced, as the court deems equitable and appropriate under the circumstances, including as a mitigating factor whether a claim or potential claim against a third party is likely to impose liability upon the party whose cooperation is sought, if it finds such a failure has occurred.

A violation of 440.39 can also subject the employer/carrier to a spoliation claim for failing to preserve evidence. This cause of action is not barred by the employer’s workers’ compensation immunity outlined in section 440.11, Florida Statutes. See General Cinema Beverages of Miami v. Mortimer, 689 So.2d 276, 278 (Fla. 3d DCA 1995).

January 9, 2025

Jeffrey P. Gale, P.A. /// Scrutinize Workers’ Compensation Carrier’s Paylog to Reduce WC Lien Amount

by Jeffrey P. Gale, P.A.

It is not uncommon for an individual hurt in a work-related accident, for which workers’ compensation benefits are due, to also have a liability case against a negligent third party. Where compensation is recovered in both cases, the injured party may have to give some of the third-party recovery to the workers’ compensation insurance carrier to satisfy its workers’ compensation lien. See section 440.39(2), Florida Statutes.

There is a formula, commonly referred to as the Manfredo Formula, used for establishing the amount of the lien recovery. However, before getting to the formula, it is necessary to determine the amount of recoverable expenditures to plug into the formula.

FLORIDA INJURY ATTORNEY BLAWG