Articles Posted in Uncategorized

Complaining now about the 2016 presidential election outcome based on the popular vote vs the Electoral College results is nonsense. It’s like a football team that was outscored arguing that it should be declared the winner because it controlled the clock and gained more yards than the other team. Them ain’t the rules.

For example, just this past Saturday my Florida Gators beat the LSU Tigers by the score of 16-10, even though LSU won the time of possession and yards gained statistics. I’ll take the W over the statistical victory.

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To receive wage loss benefits following an accident, injured workers must demonstrate a connection between the wage loss and their injuries. Wyeth/Pharma Field Sales v. Toscano, 40 So. 3d 795 (Fla. 1st DCA 2010). The most common way of accomplishing this is through medical testimony. Many people believe that it is the only way. It’s not.

Florida’s workers’ compensation system provides for two types of pre-maximum medical improvement indemnity compensation benefits, temporary partial (TP; section 440.15(4) Florida Statutes) and temporary total (TT; 440.15(2)). TP is for employees able to work with restrictions, TT is for employees unable to work.

The workers’ compensation insurance companies get to pick the doctors. Many of these doctors tend to favor the insurance companies in their opinions. One way they help is by limiting restrictions or assigning none at all.

Form DWC-25 is a form completed by the workers’ compensation doctors. Sections 21-23 address work restrictions. Workers’ compensation insurance companies typically refuse to pay indemnity benefits to injured employees who refuse or quit a job that is available within the DWC-25 restrictions.

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The key component of every statute of limitations is the triggering event which starts the running of the SOL clock. In Florida workers’ compensation cases, the event is “the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.” Section 440.19(1) Florida Statutes. The SOL is two years from this event. (Chapter 95 of the Florida’s statutes addresses the statute of limitations applicable in other types of cases.)

While most workplace injuries arise from acute traumatic events, like falling from a scaffold, some develop over a spread of time from the cumulative effects of repetitive physical labor. A representative example of this is demonstrated by one of our recent cases involving a UPS driver who developed a bad back from lifting and moving boxes for sixteen years.

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Our firm has written exhaustively on topics related to Florida’s workers’ compensation system. One of the recurring themes has been the steady loss of rights those in the workplace have experienced over the past 20 years or so. Here is a link to a superb law review article which addresses the subject. It was written in 2015 by Viktorya Johnson, J.D. Candidate, Stetson University College of Law, 2016.

FLORIDA WORKERS’ COMPENSATION ACT: THE UNCONSTITUTIONAL EROSION OF THE QUID PRO QUO

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Republicans have held the reins of power in Florida since 1999. Unashamedly, they have abused that power to crush the rights of individuals in favor of Big Business.

One of the areas which has experienced the greatest abuse is the state’s workers’ compensation system. Mercifully, thanks to the Florida Supreme Court the pendulum is beginning to swing in favor of fairness and decency. On April 28, 2016, in Castellanos v. Next Door Company, et al., the court found § 440.34, Florida Statutes unconstitutional. This statute had barred claimants’ attorneys from receiving reasonable attorney’s fees. Literally. The effect of the statute was that Claimants were as helpless as turtles on their backs. By finding this ridiculous law unconstitutional, Castellanos has become the single most important case in the annals of Florida workers’ compensation cases.

The positive momentum continues. Today, in Westphal v. City of St. Petersburg, et al. , the Supreme Court found another outrageous Republican statute, section 440.15(2), Florida Statutes (2009), unconstitutional.

The defense of Florida workers’ compensation claims under Martin v. Carpenter, 132 So.2d 400 (Fla. 1961) and Florida Statute 440.15(5)(a) are employer/carrier favorites. While similar, the defenses are not entirely alike.

The case and statute deal with misrepresentations made by job seekers concerning medical history. Under Martin, applicants who lie about their medical history can be denied workers’ compensation benefits for otherwise compensable claims when the evidence shows:

1. Causal relationship between the injury and the false representation;
2. The employee knew the representation to be false;
3. The employer relied on the false representation; and
4. Such reliance resulted in consequent damage to the employer.

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The life of a personal injury lawyer is precarious. Serious pitfalls lurk around every corner. One of the scariest dangers is the unknown medical lien. Of this breed, the Medicare lien can have the biggest bite.

In 1965, Congress enacted the Medicare Act by adding Title XVIII to the Social Security Act, with the purpose of establishing a “federally funded health insurance program for the elderly and the disabled.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 506 (1993). It is taxpayer funded.

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Following a car crash, Florida car insurance companies are required to pay 80% of their own insureds’ medical expenses and 60% of their lost wages until coverage is exhausted at a combined $10,000. The requirement applies regardless of who caused the accident.

In 1972, the Florida Legislature crafted a law, known as the “Florida Motor Vehicle No-Fault Law,” for application in motor vehicle accident cases. Every owner or registrant of a Florida motor vehicle — there are exceptions — became obligated to maintain Personal Injury Protection (PIP), an insurance coverage designed to pay medical expenses and reimburse lost wages up to $10,000 (less deductibles) without regard to fault. The purpose of the law was to provide important benefits quickly without having to fight over fault — similar to workers’ compensation. PIP remains the law in Florida.

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It is not uncommon in personal injury cases that some medical bills are paid by health insurance and Medicare. These payments should not be ignored by any of the parties to the personal injury case, especially the injured party.

These sources must be repaid from the proceeds of any recovery made in the personal injury case. (Note: PIP, which is mandatory no-fault motor vehicle medical insurance, does not have to be reimbursed.)

While it may be possible to negotiate the repayments, it is, of course, important to know how much is owed. Making this determination can depend on when the payments were made in relationship to when the personal injury case was settled.

This cutoff date varies depending on the entity involved.

HEALTH INSURANCE: The cutoff date depends on whether or not the health insurance 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. ERISA 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 the recovery of all charges related to the accident including those made post-settlement. The plan may provide that it is not responsible for covering post-settlement accident related care.

Because ERISA laws strongly favor the carriers, dealing with ERISA liens is never pleasant. Nevertheless, we drive a hard bargain. We sometimes begin negotiating by making a low ball offer to repay 30% of the lien amount coupled with a request that the insurance carrier agree to cover future accident-related medical expenses. Another approach is to argue for a 40+% discount to account for attorneys fees and costs incurred in securing the recovery.
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There was a time when few personal injury lawyers gave a moments thought to satisfying liens when wrapping up personal injury cases. Medicare liens, most especially.

Woe is the fate of the personal injury lawyer who operates that way today.

Medicare is a federal program that provides medical insurance to qualified elderly and disabled persons. However, with regard to medical expenses for which a third party (e.g., tortfeasor) bears responsibility, it is a secondary payer. 42 U.S.C. § 1395y(b)(2). While Medicare will cover medical expenses in personal injury cases, it has the legal right to be reimbursed from the proceeds of third party payments.