Articles Posted in Personal Injury

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worker2.jpgPre-Jeb Bush, Florida construction subcontractors were held liable in tort for damages caused by their negligence when the party harmed was an employee of a subcontractor with whom legal vertical privity was not shared. This powerful threat caused subcontractors to pay heightened attention to workplace safety. When subcontractors fell short of being reasonably safe and the result was bodily injury, they paid the cost.

This did not sit well with Governor Bush and his Republican cohorts who controlled Florida’s legislature. Profits were at stake. Action was taken to eliminate this bothersome “loophole.” Legislation was passed granting “horizontal immunity” to construction subcontractors without any contractual or other legal connection to employees of other companies. See Florida Statute § 440.10(1)(e)(2). See also § 440.11(1)(b)(2).

Thankfully, the immunity is not absolute. § 440.10(1)(e)(2) provides that gross negligence is excepted from the workers’ compensation exclusivity provision. To establish gross negligence, a Plaintiff must show (1) a composite of circumstances which, together, constitute a clear and present danger; (2) an awareness of such danger by the subcontractor; and (3) a conscious voluntary act or omission by the subcontractor that is likely to result in injury. See Pyjek v. Valleycrest Landscape Development, Inc., So.3d , 38 FLW D1064 (Fla. 2nd DCA 5-15-2013); and Villalta v. Cornn Int’l, Inc., 109 So. 3d 305 (Fla. 1st DCA 2013) (citing Glaab v. Caudill, 236 So. 2d 180, 185 (Fla. 2d DCA 1970)); cf. Merryman v. Mattheus, 529 So. 2d 727, 729 (Fla. 2d DCA 1988) (explaining that mere knowledge of vulnerability of employee to the possibility of injury is insufficient to amount to gross negligence; there must be a likelihood of injury from employee’s vulnerability greater than mere danger, rising to a “clear and present danger”).
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worker3.jpgMost Florida employees injured at work will be limited to receiving compensation through the state’s workers’ compensation system as laid out in Chapter 440 of the Florida Statutes. The main reason for this limitation is that employers and fellow-employees are immune from being sued for simple negligence. See F.S. 440.11.

‘”[S]imple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons . . ..”‘ Carraway v. Revell, 116 So. 2d 16, 22 (Fla. 1959) (quoting Bridges v. Speer, 79 So. 2d 679, 682 (Fla. 1955)).

Negligence cases and workers’ compensation cases are different creatures subject to their own set of laws with regard to compensation for injuries. One of the main differences is that the workers’ compensation system does not authorize compensation for pain and suffering. (No Compensation for Pain & Suffering Under Florida’s Workers’ Compensation System.)

Chapter 440 is a no fault system for the provision of benefits. In theory, at least, the worker’s compensation statutes provide a system of compensation for injured workers in which the worker receives the guarantee of rapid compensation for work related injuries. Reality is often a different story. Even when the system works as designed, its shortcomings are many. Read these blogs:

In some instances, injured workers would be more fairly compensated through the civil justice system (negligence) than through the workers’ compensation system. Unfortunately, due to a number of factors, including employer and fellow-employee immunity (see above), and a lack of fault (i.e., all but the injured worker are blameless for the accident), injured workers infrequently have the option of seeking a civil rather than a workers’ compensation remedy.
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Shaking hands.jpgEvery case is different. From accident to injuries, no two cases are ever exactly alike. That said, certain common elements do run through every case. From time to time I will be posting about some of the cases our firm has resolved. The common elements should become apparent in these blogs.

This first example involves a 2011 premises liability accident. Our client slipped in wet paint as she was descending a stairway after work. The property owner had hired an unlicensed and inexperienced recent Cuban immigrant to improve the appearance of the premises for a December holiday party. The painter failed to place warnings signs around the stairwell. It was night time and the outside stairwell was poorly lit. The accident happened in the blink of an eye. There was nothing our client could do to prevent the fall.

Our client, who was wearing flat-soled shoes, landed squarely on her rear-end. She felt immediate pain. Grey paint stained her pants and blouse. She called a co-worker, who assisted her in receiving medical care at a clinic located in her building. Within days she was receiving medical care under the workers’ compensation system from doctors hand-picked by the WC insurance carrier.

Because the building owner was not her employer, she was free to pursue a premises liability case against the owner. (See this blog on the law of non-delegable duty and Florida Statute 440.11, Florida’s workers’ compensation immunity statute.) However, she was unaware of this right, and the workers’ compensation attorney she hired did not consider the option. Within months, our client became disenchanted with her workers’ compensation attorney and came to our law firm for a consultation.

Our law firm handles workers’ compensation and premises liability cases. We quickly recognized that she also had a viable personal injury case. We agreed to handle both cases. This was seven months after the accident.

Our first course of business was to request a slew of records, including medical and employment documents from the workers’ compensation insurance carrier. This was quicker, easier, and cheaper than requesting each set of records individually from the various entities. Within thirty days we had the records and were able to review them to get a clearer picture of the cases.

Among other things, we learned that she had undergone a 3-level spine fusion surgery in early 2012. We also learned that, in 2007, she had another, albeit less intrusive, back surgery. The prior surgery turned out to play a prominent role in the premises liability case.
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scales.jpgA few months ago our law firm, working with the Domnick & Shevin, PL law firm, settled a difficult liability case against an insurance agency arising out of a catastrophic motorcycle crash.

Our client had been hospitalized for two months. Medicaid paid his substantial hospital bill. After the case settled, Medicaid came to us demanding to be repaid in full from the settlement proceeds.

We disputed Medicaid’s claim to be repaid in full. Instead, we offered the agency a small portion of the settlement to go away. Medicaid rejected the offer. Unwilling to give in, we filed a Motion to Reduce Medicaid Lien with the court that handled the underlying liability case. (We reserved jurisdiction with this court by including language In the Order of Voluntary Dismissal that it retained jurisdiction “to determine liens and reductions of liens based on equity or any other basis, including, but not limited to, Medicaid’s interest in any recovery.”)

Medicaid countered with a number of arguments. Among them: The court did not have jurisdiction to entertain the dispute. In its view, the Plaintiff was required to file a separate lawsuit, a dec action, against Medicaid; and Florida Statute 409.910 authorized a full recovery.
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Rodin2 Thinker.jpgExperienced personal injury attorneys consider many factors in judging how to manage their cases. While common elements are present from case to case, no two cases are ever completely alike. Both subjective and objective considerations must be taken into account to reach decisions most beneficial to client and attorney alike. The decisions are always consequential. The best personal injury attorneys are the best decision makers.

The elements influence everything from: whether the law firm accepts a case; whether a lawsuit will be filed versus simply trying to resolve the case pre-suit; settlement amount; whether to go to trial; whether the case is declined after it has been accepted by the law firm. Since every case has many moving parts, these and other case management decisions are adjusted frequently.

COMMON CONSIDERATIONS
Insurance coverage. There are many different types of liability insurance to cover for losses caused by negligence. The more common are homeowners, premises liability, bodily injury (BI), and medical malpractice. Most individuals and businesses with sizable unprotected assets have strong liability insurance coverage. A fair percentage with weaker financial positions have coverage, although usually with lower policy limits. Some have no coverage at all. The state of Florida has few requirements for maintaining liability insurance. (One exception is for tractor trailers/18-wheelers. The owner is required to maintain $750,000 in coverage. Unfortunately, laws are often violated, including as to maintaining insurance. Surprisingly, doctors are not required to maintain malpractice insurance.) It is mostly left as a personal choice. No matter how significant the damages, no financial means plus no insurance usually means no recovery. Few lawyers will accept a case under these circumstances. Coverage that is available but limited under the circumstances can influence a lawyer’s decision to take the case, or how hard and far to push it.

Negligence. Florida operates a fault-based civil liability system. (The workers’ compensation system, covered in Chapter 440 of the Florida Statutes, is not fault-based. Benefits, rather than damages, are recoverable under Chapter 440. These benefits are much different than the damages recoverable under the civil liability system.) Only conduct which falls below a reasonable standard is punished. Fault can be shared by various individuals and entities, including the aggrieved party. This is the concept of comparative fault. Fault can be clear, it can be gross, it can be illusive. These fault considerations (and more) influence the course and outcome of every negligence case. Fault must be proved by the aggrieved party to recover damages (e.g., medical bills, lost wages, pain and suffering).

Injuries. Other factors aside, the worth of any personal injury case is always capped by the extent of the injuries. Put another way, an accident without injuries is an accident without value. Individuals can be compensated for the aggravation of pre-existing injuries. See Florida Standard Jury Instruction 501.5(a). This is a frequent battleground issue. Our firm is in suit for a woman involved in a slip and fall accident. Within months of the accident, she underwent a 3-level spine fusion surgery. Because of a relatively minor back surgery 7 years before and some evidence of normal preexisting degeneration, the Defendant is trying to avoid blame for her injuries. It has even hired a notorious insurance company “whore” doctor to support its position. (Mediation is scheduled.)

Medical Treatment. Medical conditions must be documented to be proven. Receiving consistent care from reputable doctors is an important component. Insurance companies know the players, juries are good at recognizing the good and the bad. Delaying the receipt of care or gaps in care make a difference. While there are reasonable explanations for inconsistent care — the most common being the inability to pay — a good personal injury attorney can help make arrangements for timely, steady, and quality care to be provided.
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worker2.jpgBefore Florida adopted a workers’ compensation system, in 1935, for workers injured on the job to recover medical expenses and lost wages, or be compensated for non-economic damages, like pain and suffering, they had to prove that the accident resulted from negligence on the part of the employer or some third party. Further complicating their path to recovery was the legal principle known as contributory negligence, which acted as a complete bar to recovering benefits if the injured worker contributed in any way to causing the accident, even by as little as 1%. Few workers were able to overcome these two burdens. And for those few who succeeded, the slow grind of justice often left them broken and destitute.

The new system created an immediate sea change of good for Florida’s workers. No longer would they be forced to fight, usually unsuccessfully, for every needed benefit. So long as the injury happened in the course and scope of the employment, medical and lost wage (indemnity) benefits would be furnished, contributory negligence notwithstanding. It was the declared ideal of the system to be self-executing, meaning benefits would come without a fight, and, where there was a dispute, the worker received the benefit of any doubt.

In exchange for this no-fault system, injured workers were forced to give up the right to seek common law civil remedy damages, like pain and suffering, from the employer. (They could still seek these damages from third parties.) In other words, employers were immune from civil lawsuits. See,

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hospital.jpgIn every serious personal injury case in Florida, the issue of who will pay the medical providers and how much always arises. Needless to say, providers want to recover as much as they can. Patients, of course, want to pay as little as possible out-of-pocket. How this plays out often depends on who pays the bills.

The different pay sources include health insurance, PIP (motor vehicle insurance), workers’ compensation, the patient (self-pay), the tortfeasor (out-of-pocket), bodily injury liability coverage, UM/UIM (motor vehicle insurance), Medicare and Medicaid.

Various laws dictate who pays what and when. In some instances, the only available sources are Medicare or Medicaid (M/M) and bodily injury liability and/or UM/UIM. Since M/M provide some of the lowest reimbursement rates and providers accepting M/M payments are not allowed to balance bill their patients, in terms of raw numbers it is often to the victim’s advantage for M/M to pay the providers. While victims will ultimately have to reimburse M/M from their recovery in the personal injury case, the amount of the reimbursement is almost always less than what must be paid to the provider directly from the third party recovery (1st party if from UM/UIM).
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Plaintiffs personal injury lawyers typically have preferences in which medical providers they use to treat and render expert opinions on such issues as causation, disability, and prognosis. This is often due to familiarity and confidence in the provider’s competence. It is sometimes dictated by financial considerations.

Many people are uninsured or have inadequate coverage. When care is required that exceeds a person’s current ability to pay, many medical providers refuse to accept those people as patients. Some providers, however, are willing to take on the care and treatment of individuals in this predicament with the expectation of receiving payment from the personal injury case. To insure payment upon the favorable resolution of a case, these doctors sometimes require the patient and their personal injury lawyers to sign a letter of protection (LOP), an agreement to pay from the recovery.

This is not unreasonable. People with injuries require care. Most doctors cannot afford to work for nothing.
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dollars.jpgPayments made by health insurance and Medicare must be repaid by the beneficiary of the payments from money recovered in the personal injury case for which the medical care was furnished. (Note: PIP, which is no-fault insurance for medical bills in car accidents, does not have to be reimbursed.) In determing how much is owed, an end date beyond which further payments are not reimbursable must be established.

The cutoff date varies depending on the entity involved.

HEALTH INSURANCE: The cutoff date depends on whether the policy is subject to ERISA. If it is not, the lien ends at the date of settlement. See Florida’s collateral statute — 768.76. It is fairly well established (although not conclusively — see Coleman v. Blue Cross and Blue Shield of Alabama, Inc. So.3d , 35 FLW D2718 (Fla. 1st. DCA 12-8-2010) for a contrary view) that the collateral source statute does not apply to ERISA plans. Rather, those lien rights are controlled by the subrogation/reimbursement language in the Summary Plan Description (SPD). The SPD should be requested, but in all likelihood its provisions are expansive, allowing for recovery of all charges related to the accident. The plan may even provide that it is not responsible for covering post-settlement accident related care.
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greed.jpgFor Florida accident victims and those who care for and about them, the tyrannical reign of Jeb [Bush] the Horrible (Governor of Florida from 1999 to 2007) continues to haunt.

Once upon a time in Florida, employees hurt at work could sue their employers in tort by proving that an employer’s conduct created a “substantial certainty” the harmful accident would occur. Although the standard was tough, it still gave employees harmed through conduct exceeding mere negligence a fighting chance of being fairly and fully compensated, rather than being limited to the oftentimes inadequate benefits available under Florida’s workers’ compensation system. A victim making the requisite showing was able to overcome an employer’s workers’ compensation immunity.

Dear Jeb and his uncaring Republican lackeys in the Florida Legislature were dismayed that working men (and women) had a fighting chance against the beloved “Job Creators,” so they eliminated the right. In 2003, the Florida Legislature effectively overruled the Florida Supreme Court case of Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), the case which gave a decent interpretation to the “substantial certainty” standard, by amending Florida Statute 440.11 with the “virtually certain” standard. The pertinent language reads as follows:

The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

See F.S. 440.11(1)(b)2.

As fairly stated by the 4th DCA in List Industries v. Dalien (opinion issued on January 23, 2013), “The change from ‘”substantial certainty”‘ to ‘”virtually certain”‘ is an extremely different and a manifestly more difficult standard to meet. It would mean that a plaintiff must show that a given danger will result in an accident every — or almost every — time.”
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