Articles Posted in Miscellaneous

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The anterior cruciate ligament (ACL) is one of the most frequently injured ligaments in the human body. The typical mechanism of the injury is a non-contact twisting movement, usually due to abrupt deceleration and change of direction. Side-stepping (cutting), pivoting and landing from a jump are examples of events that may cause an ACL tear.

ACL tears can be partial or complete. A complete tear of the ACL has minimal ability to heal and often requires surgical reconstruction, as most patients suffer from functional problems, like giving way and instability, and significant pain. To a lesser extent, partial tears also produce pain and instability. There is serious debate within the medical and workers’ compensation communities about the need for surgical intervention for partial tears.

ACL reconstruction involves replacing the torn ligament, usually with the middle third patellar tendon or hamstring tendon graft. Although most people benefit from ACL reconstruction in functional terms, approximately 10% of patients require a second operation, mainly because of the loss of motion, further meniscal injury and graft failure. ACL reconstructions are not very successful in the long-run in people with chronic meniscal and chondral deficiency.

As ACL injuries typically occur in the context of physical activity, it is a common injury among manual laborers, individuals whose job duties include signficant amounts of climbing, lifting, squatting, and carrying.

Due to instability and pain associated with complete tears, manual laborers with any hope of returning to the work force will almost always require surgery and comprehensive post-surgical rehabilitation. Even then, a successful return to long-term gainful employment is not assured. Repetitive trauma associated with hours of manual labor on a daily basis can lead to pain and hasten the need for additional surgery.
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Anyone who lives in South Florida knows that the population of road bikers has exploded in recent years. With Lance Armstrong’s exploits and the availability of relatively inexpensive high performance bicycles, it is not uncommon, especially on weekend mornings, to see a countless number of road bikers of all shapes and sizes challenging themselves in their spandex shorts and colorful helmets on the streets and highways.

Even without having to contend with cars and trucks, road biking is a dangerous activity. Potholes, debris, and other bicycles can send a rider to the unforgiving cement in the blink of an eye. Eyes on the road and hands on the handlebars is Rule #1.

South Florida has experienced a rash of highly publicized serious and sometimes fatal motor vehicle vs. bicycle accidents in recent years. With the volume of traffic, motor vehicles and bicycles, on the roadways, one can safely assume that the frequency of such accidents far exceeds the publicized accounts.

This blog will address the points of Florida law dealing with the rights and obligations of road bikers on our roads.

The primary Florida Statute dealing with these issues is 316.2065. Section 316.2065 addresses everything from helmet requirements to carrying children, much of which is beyond the scope of this blog, making it important reading for all bike enthusiasts.

Section (1) of 316.2065 contains the sweeping pronouncement that bicyclists and motor vehicle operators have the same rights and duties. One might conclude this means that bicycle riders can take up entire lanes of traffic without regard to the conditions. This conclusion would be far from correct.

Further in Section (1) is language that qualifies the broad pronouncement, while Section (5)(a) provides the simple details of the limitations. (5)(a) instructs that bicycle riders who are unable to to travel at the normal speed under the conditions at the time “shall” ride as close as practicable to the right-hand curb or edge of the roadway. As the typical lone rider travels at an average of 14-18 mph, and a pack (or pelaton) of strong riders around 5 mph faster than that, most road bikers will always be traveling slower than the speed limit. This means that most of the time, most riders should be riding at the edge of the roadway.

There are exceptions to this rule, also contained within Section (5)(a). Under the following circumstances, riders may leave the right-hand curb of the roadway:

  • When overtaking another bicycle or vehicle proceeding in the same direction
  • when preparing to make a left turn (see, also, 316.151(c))
  • To avoid any condition, such as parked cars, debris in the roadway, and a pedestrian.

Also included as an exception within section (5)(a) is one relating to roads of “substandard-width,” meaning roads not wide enough to safely accomodate a bicycle and a vehicle traveling side by side. For bikers, motorists, law enforcement officers, and the courts, this provision may be the most controversial within Florida Statute 316.2065.

What is a road of “substandard-width?” Arguably, the answer is any road that is less than 14 feet wide.

The Florida Department of Transportation’s Manual of Uniform Minimum Standards recommends an outside lane width of 14 feet as the “minimum width that will allow passenger cars to safely pass bicyclists within a single lane,” i.e., without the need for passing motorists to use part of the next lane. A typical passenger vehicle is from 5.5 feet (car) to 7 feet (SUV) wide. This means that you need at least 8 feet of lane width for a car. (That’s the narrowest parking lane width allowed).

Florida Statute 316.083 states that motorists must pass bicycles at least 3 feet away. Add another 3 feet for the width of a bicycle and its rider, and 14 feet (8 + 3 + 3) is the narrowist width a road should be for bicyclists and automobiles to safely travel side by side. (This minimum does not account for commercial vehicles and utility trailers which are 8.5 ft wide and can have mirrors extending to 10 feet. Those vehicles MUST use part of another lane to pass safely.)
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Individuals and companies sued in Florida on debts (real & fabricated) and delinquent mortgages are not without legal defenses or affirmative relief. Here is a checklist of some of the available legal principles:

  • Estoppel – Equitable, Promissory and Collateral.
  • The action is barred by the statute of limitations applicable to such actions.
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In my view, one of the most important decisions in the history of Florida workers’ compensation jurisprudence is Aguilera v. Inservices, Inc., 905 So.2d. 84 (Fla. 2005). In a nutshell, Aguilera authorized civil lawsuits against insurance carriers and their adjusters “for harm caused subsequent to and distinct from the original workplace injury.”

The Supreme Court opinion provides a great amount of detail about the harm to Mr. Aguillera caused by the insurance carrier’s adjuster, which I will not outline here. For purposes of this blog, suffice it to say that the adjuster made arbitrary, mean-spirited, baseless, and egregious decisions about medical matters which put Mr. Aguillera’s life at risk.

As a result, the insurance company and the adjuster were sued for civil damages in an action separate and apart from Mr. Aguillera’s workers’ compensation case. They defended by arguing that they were immune from being sued civilly, pursuant to Section 440.11, Florida Statutes, that any complaints about how the workers’ compensation claim was being handled must be addressed through the workers’ compensation case itself.

Although the 3rd District Court of Appeal agreed with the civil defendants, the Florida Supreme Court did not.

The Florida Supreme Court was careful to point out that its decision was not authorizing civil actions in cases involving simple claim delay or simple termination of workers’ compensation benefits. The court recognized that the workers’ compensation system had appropriate remedies for these situations. In other words, the civil remedy established by the court is limited to egregious and outrageous claims handling.

The importance of the decision is that carriers and adjusters know there is a line beyond which they cross at their own risk. This has induced them to handle claims very carefully and with due regard for the health of injured workers.
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Personal injury claims of individuals under the age of 18 present unique procedural demands for the legal practioner. For starters, the attorney represents the minor through the minor’s legal guardian, typically one parent or both. This is because minors cannot pursue claims through the court system or settle them, pre- or post-suit, on their own.

Whether or not any other procedural requirements must be met depends on the gross amount of the settlement. The chart below sets forth the standards for these other requirements.

POTENTIAL ADDITIONAL REQUIREMENTS:

Court Approval of Settlement Required:

  • Gross Settlement is $15,000 or less – No, unless a lawsuit has been filed, then yes. Sections 744.301(2) & 744.387(3)(a) Florida Statutes.

    Court approval is obtained by filing a Petition for Approval of Minor’s Settlement with the Court. The Petition should contain details of the case, including the issues of liability and damages, the amount of the settlement, and the amount of attorneys’ fees and costs. In many instances, the Court will approve the settlement without a hearing.

  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes. Section 744.387(3)(a).
  • Gross Settlement in excess of $50,000 – Yes. Section 744.387.

Need Legal Guardianship/Guardian of the Property Appointed:

  • Gross Settlement is $15,000 or less – No.
  • Gross Settlement is greater than $15,000, but less than $50,000 – Yes, but only if the Net settlement (after gross settlement is reduced by attorney’s fees and costs) exceeds $15,000. Section 744.387(2).
  • Gross Settlement in excess of $50,000 – Yes, but only if the Net settlement exceeds $15,000. Section 744.387(2).

It is not unusual for the legal guardian and the guardian of the property to be the same individual or individuals. This person will be charged with collecting the amount of the minor’s net judgment and executing all necessary releases. However, the court will retain sole jurisdiction to determine the allocation and use of the minor’s net settlement, oftentimes insisting that it be put into a conservative account for safekeeping until the minor reaches majority. Until majority, whenever the legal guardian wishes to use the minor’s money, court approval must be obtained. The Court’s determination will be based on what is in the minor’s best interest.
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History was made today by the Florida Legislature. After remaining at the same level for 30 years, Florida’s sovereign immunity limits – i.e., the maximum amount government entities can be forced to pay to victims in personal injury cases* – were increased by the 2010 Florida Legislature from $100,000 per person/$200,000 per incident, to $200,000/$300,000. It’s about time! (See this previous blog for a further discussion on sovereign immunity laws.)

The bill awaits Governor Charlie Crist’s signature. If adopted, it will become effective in October 2011.

Although these arbitrary limits remain unreasonably low – in my opinion, there should be no arbitrary caps at all … cause the damage, pay the full price. Period. – the legislation is a move in the right direction. Kudos to the Florida Legislature. (Shock of all shocks, I never thought that I would be complimenting any legislative body controlled by Republicans, but credit should be given when due.)
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Our law firm was recently hired by a military veteran who claims to have been infected with the liver disease Hepatitis C by equipment used to perform colonoscopies at the Veterans Administration (VA) hospital in Miami, Florida.

Last year the VA acknowledged contamination issues with endoscopic equipment used to perform colonoscopies in its Miami facility between 2004 and 2009. It has notified more than 3000 patients of the potential for infection and recommended testing, one of whom is our client. To her great disappointment, she tested positive for Hepatitis C.

Although the VA admits to the contamination problem, it does not so readily admit to it being the cause of infection in every veteran who has been tested positive for the virus (or HIV; there have been reported cases of HIV infection). Because Hepatitis C, among serious and sometimes fatal medical conditions, is relatively easy to contract, the refusal of the VA to take responsibility for every case of infection is understandable. (However, shouldn’t there be a rebutable presumption in favor of the veterans that the virus was caused by the VA?)

We expect the government to conduct comprehensive discovery in our case in an effort to establish other risk factors, such as intravenous drug use, blood transfusions, promiscuous sex, etc. From past experience, we know that the government’s lawyers and even the FBI will attempt to look into every relevant aspect of our client’s history for evidence to blame for the infecton other than its contaminated equipment.
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In my 25 years of representing accident victims, I have found rotator cuff injuries to be about the most debilitating of all traumatic injuires for those employed as manual laborers. Unfortunately, it is a very common injury – for example, shoulder pain is second to back pain as the bases for workers’ compensation claims.

The rotator cuff is made up of 4 tendons, and they cover the top of the humerus. A rotator cuff injury involves a tear to one or more of these tendons. Tears can be full or partial thickness.

Tears can be acute, when a sudden force is applied to the shoulder, or chronic, which is deterioration over a long period of time. Common symptoms of acute tears include a tearing sensation, sudden pain, and sudden weakness. The symptoms of chronic tearing include gradual progression of shoulder pain and weakness, and difficulty sleeping on the affected side.

Rotator cuff tears are diagnosed clinically, by the orthopedist through examination, and by MRI. The best type of MRI to accurately diagnose the presence of a rotator cuff tear is the MRI arthrogram.

Treatment for rotator cuff injuries includes conservative care and surgery. Conservative care includes rest, non-steroidal anti-inflammatory medication (Motrin, Aleve, Celebrex) and physical therapy, and sometimes proves valuable with partial tears. Complete tears and partial tears that have not responded well to conservative care, usually will require surgery.
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Compensation for pain and suffering is available in most types of accident cases. It is not available in Florida workers’ compensation cases.

Florida’s workers’ compensation system was instituted so that employees injured at work would not have to prove fault in order to receive benefits. Entitlement to compensation was to be as simple as proving that injuries resulted from an accident that occurred in the course and scope of one’s employment. In theory, at least, the system remains in place today.

In exchange for the creation of this no-fault system, injured employees lost the right to be compensated for pain and suffering. Injured workers’ are entitled to lost wages and medical benefits, but not compensation for pain and suffering.

Understandably so, this is a difficult concept for most lay people to comprehend. It is a concept that I must explain again and again to my workers’ compensation clients.

It is such a difficult issue, in fact, that I have devised an exercise to make the point. I begin by asking my clients, ‘how much money do you expect to receive in your workers’ compensation case for pain & suffering?’ Invariably, the answer is, “I don’t know.” I then ask them to close their eyes. Once this is done, I ask the question, “What do you see?” When the answer is “Nothing,” I tell them that nothing is exactly how much they will receive as compensation for pain and suffering in the workers’ compensation case. Point understood.
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Florida’s maze of motor vehicle insurance laws can be difficult to comprehend.

A case in point: Personal Injury Protection (PIP) and Property Damage – Liability are the only required coverages for an owner to lawfully operate his/her vehicle on Florida’s streets and highways. (PIP pays 80% of medical bills and 60% of lost wages for the insured up to $10,000, while Property Damage – Liability pays to repair or replace the other owner’s motor vehicle.) With these coverages, the vehicle owner is able to purchase a license plate and a vehicle registration.

Surprisingly, however, in the event of a motor vehicle accident involving injury or death, having the minimum mandatory coverages will not prevent the at-fault party from having her drivers license and all vehicle registrations from being suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) Florida Statutes.

The type of insurance coverage that will prevent the suspensiong is Bodily Injury (a/k/a liability insurance) in the minimum amounts of $10,000 per person/$20,000 per accident. Section 324.021 (7) Florida Statutes.
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