Articles Posted in Miscellaneous

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No type of insurance coverage is required to lawfully operate a motorcycle in Florida. The owner of a motorcycle can obtain a license plate and registration without any coverage. This is different than the law with regard to cars and trucks. The owner of either of those types of motor vehicles must, at a mimimum, have Personal Injury Protection (PIP) and Property Damage – Liability insurance to obtain a plate and registration. (PIP is no-fault coverage and can pay the policy holder and a few others up to $10,000 for medical benefits and lost wages, while PD – Liability covers property damage to the other vehicles.)

However, in the event of an accident resulting in death or personal injury, if the uninsured motorcyclist or car/truck owner with only PIP/PD is charged with causing the accident, his/her drivers license and all vehicle registrations will be suspended. Sections 316.066(3)(a)1 and 324.051(2)(a) of the Florida Statutes. Taking it one step further, these consequences will also result to the inadequately insured owner even if he/she was not operating the vehicle, if the accident was caused by a permissive user. This is because Florida considers vehicles used on its roads and highways to be dangerous instruments, subjecting its owners to the same liability for accidents as the permissive operators.
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A statute of limitation is a provision that ends a person’s or company’s right to sue with regard to a legal dispute. Every legal dispute in Florida is subject to a statute of limitation, with the time period in any particular matter depending on the nature of the dispute. Florida Statute 95.11 sets forth the statute of limitation periods for most legal disputes. The statute of limitation for workers’ compensation cases is set forth in Florida Statute 440.19.

The workers’ compensation statute of limitation is a provision that ends a person’s right to claim benefits or sue for compensation and damages unless the person meets certain conditions. For accident dates after January 1, 1994, a claim or petition for benefits is forever barred unless it is filed within (1) two years of the date of the injury; or (2) after the initial two years, within one year of the last payment of compensation or provision of remedial treatment, care or attendance.

The start of every statue of limitation period is triggered by an occurence or event. For example, in a breach of contract matter, the triggering event is the breach of the contract. For wrongful death, it is the date the cause of the wrongful death was confirmed or suspected, typically the date of the accident. In workers’ compensation cases, the work-related accident starts the limitation period running.

In cases involving clearly identifiable accidents and injuries, such as breaking an ankle after falling from a ladder, the date of accident as the triggering event is obvious. However, not all triggering events are so obvious. For example, a worker may feel a twinge in his back from lifting a heavy box, and for a time feel only minor discomfort, then one day, even a week or two later, experience full-blown symptoms indicative of a bad herniated disc injury. Under this scenario, the statute of limitation period may not begin to run until the full-blown symptoms manifested, which is when the injured worker, as a reasonable person, should recognize the “nature, seriousness, and probable compensable character of his injury or disease.” [see Herb’s Exxon v. Whatmough, 487 So. 2d 1169, 1172 (Fla. 1st DCA 1986)]. In other words, the triggering event may come after the actual date of accident.

Other examples of how the workers’ compensation statute of limitation is applied:

  • Occupational Disease: An occupational disease is one that arises from the hazard of a disease particular to a job that distinguishes it from the usual run of occupations, or the incidence of the disease is substantially higher in that occupation [see Florida Statute 440.151]. In cases involving occupational disease, the statute of limitation clock begins to run from the date of disability. Disability is defined in Section 440.02(13) as “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” This means that the date when the SOL clock begins to run may be different from the date the injured worker was first exposed or when he or she detected the disease, or even when symptoms first appeared.
  • Injuries from Repetitive Trauma: A repetitive trauma injury is one in which disability results from months or even years of minor, but repetitive trauma. (My first workers’ compensation trial involved a repetitive trauma injury. We alleged and, fortunately, were able to prove, that our client’s serious back condition developed from years of lifting heavy bed box mattress frames from ground level to overhead shelves.) In these cases, the SOL begins to run from the date of the disability or the date of last injurious exposure, whichever is later.

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Many factors go into determining the settlement value of a Florida workers’ compensation case. Although the opposing parties are seeking different outcomes – the Claimant wants to recover as much as possible, while the Employer/Carrier wishes to settle for as little as possible – each side benefits from performing a fair and honest evaluation; neither party gains an advantage from being deluded about a case’s true value.

This is not to say that the parties, after performing their assessments, will always arrive at similar conclusions. Law is more art than science. Judgment calls based on a countless number of variables often result in significantly different conclusions. The goal of successful negotiating is to narrow the differences to an acceptable agreement.

Before considering the factors that influence case value, it should be noted that no party to a workers’ compensation case can be forced to settle. Not even a judge of workers’ compensation claims can force a settlement on the parties. Moreover, there is no jury system in workers’ compensation where a verdict is reached awarding a lump sum of money. Most workers’ compensation cases are mediated, but the settlement can only come through an agreement of the parties.

It should also be noted that compensation for non-economic damages (sometimes referred to as, Pain & Suffering) is not awardable in workers’ compensation cases. (See these blogs: personal injury; wrongful death.)
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As our law firm has an expertise in workers’ compensation and personal injury cases, we are frequently asked to explain to our clients and other lawyers the differences between the two. Although both types of cases involve bodily injuries, they have little else in common.

With rare exception (see Florida Statute 440.11), the remedies available against employers for job related accidents are controlled by Chapter 440 of the Florida Statutes, which is the body of law devoted to workers’ compensation cases. Personal injury cases are controlled by different statutes and case law. The differences are significant.

THE MAIN DIFFERENCES:

  • Negligence. As a legal concept, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. It is often difficult to prove negligence. Whereas proving negligence is not required in workers’ compensation cases, it is an essential element of every personal injury case except those involving strict liability.
  • Compensation for Pain and Suffering. Because workers’ compensation claimants are relieved of the heavy burden of having to prove negligence, the Florida Legislature, as a trade-off, does not allow them to be compensated for pain and suffering. In contrast, personal injury claimants can be compensated for pain and suffering. This difference is easily the most difficult concept for our workers’ compensation clients to understand. It is counter-intuitive. We spend a significant amount of time discussing this concept with all of our workers’ compensation clients.
  • Medical Benefits. Medical benefits are furnished to injured workers pursuant to the workers’ compensation system. It is a lousy system for injured workers (see this blog), with the biggest negative being that employers and their insurance carriers control the selection of all medical providers. By contrast, personal injury claimants do not have automatic medical benefits; claimants must fend for themselves in obtaining medical care. PIP (motor vehicle accidents), health insurance, and Medicare/Medicaid are the main sources sometimes available to cover the expense. It is more difficult for the uninsured. Arrangements can sometimes be made through the lawyer for the provision of medical care. In theory, the personal injury claimant is supposed to be compensated at the end of the case for past and future medical expenses.
  • Lost Wages. Like medical benefits, eligibility for workers’ compensation lost wages starts with the report of a work related accident. The benefit amount ranges from 66-2/3% to 80% of 80% of lost wages. Except for permanent total disability (PTD – 440.15(1)), a difficult standard to prove, the limit for the number of weeks of temporary disability benefits (i.e., prior to reaching maximum medical improvement) a claimant may receive is 104. Only a small percentage of claimants receive the full 104 weeks of benefits. The personal injury system for the payment of lost wages is significantly different. There is no built-in equivalent, like in workers’ compensation, for self-executing benefits to be paid. In some instances, PIP and private disability insurance fill the role, but often those benefits are not available or applicable. For the most part, it is not until the case is resolved that the personal injury claimant is compensated for lost wages past and future. The standards that apply for the determination and entitlement to lost wages also are different between workers’ compensation and personal injury cases.
  • Trial by Jury. Not available in workers’ compensation cases. Available upon request in personal injury cases.
  • Statute of Limitations. 2 years for workers’ compensation, 4 years for personal injury. (Be careful not to confuse the personal injury statute of limitations with the statutes of limitations applicable to wrongful death cases (2 years) and medical malpractice (2 years). Also, in personal injury cases against a governmental entity, although the statute of limitations is 4 years, a particular written statutory notice of claim must be given within 3 years. Finally, and of great importance, sometimes there are ways of extending a statute of limitations beyond the black-letter numbers given above. Accordingly, it is important to discuss these issues with an attorney before concluding that it is too late to pursue any legal claim based on a statute of limitations.)
  • Attorney Representation. Available in both types of case. We handle both type of cases on a contingent basis (no fees and costs payable by the client until we win the case), but, by law, the fee formulas are significantly different.

There are numerous other differences between workers’ compensation and personal injury cases, but these are the main ones. Needless to say, an experienced legal professional should be consulted to discuss all of these issues.
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I am a member of the Florida Justice Association (FJA), a Tallahassee-based organization dedicated to strengthening and upholding Florida’s civil justice system and protecting the rights of Florida’s citizens and consumers. Within the organization is an Internet discussion group, of which I have been a member for more than ten years, consisting of a sub-group of lawyers who only represent Plaintiffs/Claimants. In other words, no defense attorneys are allowed access to this discussion group. The group discusses legal issues concerning the rights of individuals within the context of the civil justice system. It is an invaluable resource.

Many of my blogs discuss the dangers facing Florida’s civil justice system. Among the specific topics discussed regarding the larger issue deal with what is referred to in Florida as the crashworthiness or enhanced injury doctrine. (Blogs 1, 2, and 3.) I have warned that this important consumer safety law was in danger of being eliminated by Rick Scott and Florida’s Republican-controlled legislature. Well, in just day two of the Rick Scott administration, the doctrine is under assault and, given the Republican numbers, likely to be killed.

Given the importance of the doctrine to the safety and well-being of people in Florida, this assault on the doctrine is a hot topic of discussion on the FJA’s Internet discussion board. I found one post particularly enlightening and have decided to post it here (slightly edited). The author is Florida Attorney Rich Newsome.

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This coming Tuesday afternoon, the Florida Senate Judiciary Committee, chaired by Senator Anitere Flores, will take up an anti-consumer bill involving automobile safety. This bill is being spearheaded by Ford Motor Company and if passed, will have huge consequences for consumers who are maimed and killed by defective cars. (Blogger’s note: In 2009, Ms. Flores introduced and shepherded workers’ compensation legislation that has resulted in the drastic curtailment of the ability of injured workers to obtain benefits. The legislation is in the process of being appealed as unconstitutional to the Florida Supreme Court.)
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In installment #1 of this series of blogs addressing the myth regarding frivolous lawsuits, I tried to debunk the myth through common sense by noting some of the practical considerations that make handling baseless cases untenable for lawyers. In other words, practical considerations alone work against the notion that frivolous lawsuits are a staple of the legal system.

In this blog, I will try to debunk the myth further by discussing actual laws and rules that are designed to eliminate and prevent baseless lawsuits.

Very few cases are not defended. Those not defended typically involve parties who are without money or insurance to mount a defense or pay a judgment, making it a complete waste of time and money bothering to obtain the judgment. Anyone bringing suit against such a defendant may end up with a piece of paper, the final judgment, establishing that money is owed. That piece of paper and $1.00 will get the owner of the final judgment a cup of coffee. In other words, in most instances the final judgment is worthless.
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I agree with the observations, reproduced below, of one Harry Rosenzweig, whose letter was published by The Miami Herald on 12/19/10:

DISLOYAL OPPOSITION

Blaming President Obama for the financial crisis and deficit is delusional propoganda. He inherited this mess and saved us from a far deeper crisis. Further, it is the stated purpose of the “disloyal” opposition to stonewall Obama toward a failed presidency, nation be damned, in their effort to return to political power and the fox-in-the-henhouse policies that brought us to the brink. We are careening toward a government of, by and for the largest corporations and the wealthy. It’s a tragic and concerted effort to destroy our once great nation.
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From time to time, I will list in this blog recent important information regarding manufactured products used by American consumers. Today’s entries:

Darvocet and Darvon: Popular prescription pain medications, go by the generic name propoxyphene. FDA studies show that the drug puts patients at risk of potentially serious or even fatal heart rhythm abnormalities. Propoxyphene is an opoid. Safety concerns were raised as early as 1978. Warnings were placed on boxes in 2009 of the dangers of overdoses. Now, the manufacturer, Xanodyne Pharmaceuticals, Inc., has agreed to withdraw the drug from the U.S. market.

DePuy Hip Replacement Parts: Some component parts in the DePuy Hip replacement system are feared to be the cause of a high rate of repeat surgies in those who have received the parts. Johnson & Johnson and DePuy Orthopaedics, its subsidiary, have announced that it is recalling the parts.

EBIce Cold Therapy: This is a cryo-therapy (“Cold Therapy”) device typically prescribed by orthopedists and podiatrists after a surgical procedure. Poor use instructions have resulted in serious nerve and skin damage similar to frost bite.

Fosomax: Manufactured by Mreck, this is a class of drugs called bisphosphonates. It is commonly used in tablet form to prevent and treat osteoporosis in post-menopausal woman. The Journal of Oral and Maxillofacial Surgeons recently reported a link between bisphosphonates and serious bonce disease called Osteonecrosis of the Jaw (ONJ), a disfiguring and disabling condition of the jaw bone that causes infection and rotting of the jaw bone.
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Without knowing any better, one might believe that most lawsuits are frivolous. This is a popular message in American society spread through ignorance and deceit. The truth reveals a different reality.

Through my blog, I will attempt to debunk through facts and reason this false notion regarding lawsuits. It will be undertaken in multiple installments.

The first thing to understand is that, for the past 30 years, big business has made a concerted effort to undermine the integrity of the civil justice system. The reason why is simple: Profits over people.

The civil justice system is the best vehicle an individual in our society has of holding a much stronger corporation accountable for wrongdoing. When the system works as designed by our Founding Fathers, powerful companies can be made to answer to judges and, more importantly, jurors.

Not happy with being held accountable, big business has undertaken a campaign to undermine the integrity of the civil justice system. In addition to the creation of laws making it more difficult for individuals to pursue claims, big business has developed a successful propoganda machine designed to pollute the minds of our citizenry against individuals who bring claims against companies.

Hardly an adult in America has not heard the expression “Frivolous Lawsuit.” Unfortunately, nearly every potential juror has been tainted with the false concept, some of whom are downright hostile against individuals who would sue a company. It a classic counter intuitive response: Everday Americans reflexively siding with big business over “We, the People.” Sad but true.

Big business is patting itself on the back for successfully turning individuals against their own best interests. They are laughing at you and me for being such fools.

In Florida, the minimum cost to file and serve a lawsuit on a single party is nearly $500. $500 is $500, not small change to most people, especially nowadays, including lawyers and law firms. Add in the fixed costs of rent, supplies, and salaries and the cost of filing a lawsuit approaches upwards of $1,500-$2,000. (This does not include, for example, the requirement in medical malpractice cases of obtaining an expert opinion before filing suit, which, depending on the complexity and seriousness of the case, can easily cost more than $5,000, or the practical need in other cases to obtain an expert’s knowledge before filing suit.)

The point is, it takes a significant amount of time, energy, and money to get a case off the ground. This is all without any guarantee whatsoever of being paid penny one in the case, even the strongest case. That’s right, contrary to the false ideas spread by the propogandists and those who have been duped into believing their garbage, the mere fact of filing a lawsuit does not assure a recovery. What it does guarantee is a knock-down, drag-out fight. I liken the consequence of filing a lawsuit to being on the back of an angry bull as it leaves the cage with the sole intent of bucking the rider off its back. Hold on tight and expect a rough ride.

Given the significant initial expense of filing suit and the uncertainty of success, does it make sense that lawyers make a practice of filing baseless (i.e., “frivolous”) claims? Not in the common sense world in which I try to live.

Stay tuned for more installments.
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Florida’s workers’ compensation system contains many different types of wage loss benefits. Each is unique in scope and character. They are:

  • Temporary total disability (TTD; 440.15(2)): Unable to work prior to maximum medical improvement (MMI)
  • Temporary partial disability (TPD; 440.15(4)): Able to work with restrictions
  • Impairment benefits (IB): Based on medical impairment rating upon reaching MMI
  • Permanent Total Disability (PTD; 440.15(1)): Unable to perform substantial gainful employment after reaching MMI. (See blog.)
  • Retraining: While being retrained in a certified program. (440.491) (See blog.)

Other monetary benefits that may be available to injured workers include:

If you have questions about any of these benefits, contact our office for a free, confidential consultation.
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