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Se difisil pou konprann kiles ki ka kalifye pou konpansasyon anba “Lalwa Sivivan Lanmò Abizif nan Florid,” seksyon 768.16 jiska 768.26; se tankou konplete yon devinèt. Anba gen yon tablo ki fasil a konprann ki montre enfòmasyon sa a epi ki kalite konpansasyon ki ka disponib. En patikilye, seksyon 768.21 e enpotan anpil. Tablo a esplike seksyon sa a.

Dapre lalwa a, se sèlman “sivivan legal” ak byen moun ki mouri te kite dèyè a ki kalifye pou konpansasyon ki koze pa zak entansyonèl oswa neglijans ki fèt pa yon twazyèm pati. Yon Reprezantan Pèsonèl (RP), souvan yon manm fanmi pre moun ki mouri a, se nonmen pa tribinal la, apre yo fin bay avi pou lòt pati ki ka enterese nan jere byen moun ki mouri te kite dèyè a. Reprezantan nan anboche yon avoka pou jwenn dedomajman anba lalwa. Lòt sivivan ka anboche avoka pa yo, men, ofisyèlman, yo dwe avanse anba Reprezantan Pèsonèl epi avoka ki chwazi pa RP la. Tipikman, tout sivivan yo dako ak chwa RP la. Avoka la oubyen avoka yo okipe dosye a sou yon baz kontenjan, sa vle di RP, sivivan, ak byen moun ki mouri te kite dèyè a, pa oblije peye frè avoka davans. Si avoka rive jwenn bon rezilta ak dosye a, avoka a resevwa yon pousantaj nan dedomajman an ak tout frè ki asosye ak pouswit dedomajman an.

Ki moun ak kisa ki ka dedomaje anba lalwa varye selon sikonstans dosye a. Lalwa sa te defye anpil fwa nan tribinal la, men li toujour rete lalwa. Se selman aksyon Lejislati nan Florid la ki ka chanje lalwa a.

Moun ki andomaje nan travay ap fè fas ak yon gwo pwoblèm sou zafè dwa yo genyen anba sistèm konpansasyon pou anplwaye ki andomaje nan travay nan Florid depi kòmansman’l nan ane 1935. Kèk nan peryòd sa yo te pi mal pase kèk lòt. Sepandan, pa gen yonn ki te ka pi mal pase tan Jeb Bush te sèvi kòm 43èm Gouvènè nan Florid soti nan ane 1999 rive nan 2007, ansanm ak yon chanm Depite ak Senatè ki te anba kontwòl Repibliken yo. Ansanm, yo te kraze sistèm lan.

Apre plizyè ane nan enjistis ak soufrans, li sanble yo pral kòmanse rekòlte sa yo te simen.

Anvan Florida te vini ak sistèm konpansasyon pou anplwaye ki andomaje nan travay la, pou yo te peye yon anplwaye ki andomaje pou jou travay li te pèdi epi pou ba li benefis medikal, li te bezwen bay anpil prèv aksidan te rive akòz neglijans travay la. Sa te yon tèt chaje ke lwa leta te rann pi difisil toujou sitou si yo te gen kèk prèv anplwaye a pat pran prekosyon oswa li te aksepte travay nan kondisyon ki te ka kreye pwoblèm sa yo. Sistèm sa te akoz anpil anplwaye pa resevwa benefis. Sistèm sa pat nan benefis konpayi travay yo tou ki te fè yo pase anpil tan nan pwosè.

“Rabbit from a hat.” That’s the description I have given to a case we recently handled with Domnick & Shevin PL.

I have blogged extensively about the indecent and dangerous immunity afforded medical providers under Florida’s wrongful death statute. (Gigantic Loophole in Florida’s Wrongful Death Act; Florida Wrongful Death Survivors Chart — Back by Popular Demand; Doctors Skirt Fault Under Florida’s Wrongful Death Act; Florida’s Wrongful Death Act Fosters Better-Dead-Than-Alive Philosophy In Medical Malpractice Cases.)

We found a way around the statutory immunity … sort of.

Section 768.21(8) of Florida’s Wrongful Death Act exempts medical providers from liability where the decedent dies without leaving behind a surviving spouse or minor children. Our office receives a stream of inquiries from adult children and the siblings of senior citizens whose deaths resulted from medical malpractice. Frequently, we are not the first law firm they have contacted. They have been informed that Florida law precludes a recovery. Very often, all we can do is confirm the bad news. Shock, dismay, and anger towards the system typically follow.
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Doctor selection under the Defense Base Act and the Longshore and Harbor Workers Compensation Act (LHWCA) is crucial. It can make the difference between fairness and injustice.

Through 42 U.S.C. 1651(a), the LHWCA is the substantive law for the Defense Base Act. Under the LHWCA, employers/insurance companies are required to provide injured workers with medical care. Injured workers have the right to choose one doctor. Once the selection is made, any change must come by agreement of the E/C or order of the Secretary of Labor’s office. Injured workers do not want to be reliant on either alternative. Accordingly, the initial choice is key.

Money has a tendency to corrupt. Sadly, doctors are not above being influenced by insurance company money to render false opinions unfavorable to their patients. Doing otherwise jeopardizes the flow of future insurance company business. This is why we see the same doctors being selected time and again in every type of workers’ compensation case, from state workers’ compensation cases, to Defense Base Act cases, to LHWCA cases.

Like sexual prostitutes, whore doctors do whatever is required to please the customer. Unlike sexual prostitutes, however, the immoral acts of whore doctors harm innocent victims … their own patients. So much for the Hippocratic Oath.

Given these harsh realities, it is especially important for injured workers to select their doctors carefully. There are many doctors of high principle who are not beholden to insurance companies. Lawyers who represent injured workers know who they are and can help in the selection process. Unfortunately, in a large percentage of cases the dye has already been cast by the time proper legal advice is sought. Most injured workers have already begun treating by the time they meet with a lawyer.
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Just as the Jones Act, the Federal law which governs personal injury cases involving seamen, relies on FELA, the Federal Employers Liability Act, established in the 19th century to protect railroad workers, for it’s substantive law, the Defense Base Act relies on the Longshore and Harbor Workers Act for its substance law.

42 U.S.C. 1651(a), the first clause of the Defense Base Act, states that the provisions of 33 U.S.C. 901 et seq. apply with respect to any employee of a defense contractor injured overseas in the course and scope of employment. Due to the relative underdevelopment of DBA jurisprudence, legal guidance in DBA cases often derives from LHWCA precedent.

Read our other blogs to learn the particulars of the DBA/LHWCA. It is a fascinating and complex area of the law with significant consequences for those who are severely injured and their loved ones.

33 U.S.C.A. 907 provides that employers are responsible for furnishing medical care to LHW for so long as the nature of the injuries and process of recovery may require. This sounds good for injured workers, but doesn’t always work out that way.

The key to the successful medical outcome for any injured longshore and harbor worker is the quaility of care provided. Sadly, successful recovery is not always an employer’s primary concern. Often, limiting claim costs is the foremost concern. When this is so, the quality of medical care may be compromised.

Under the LHWCA, injured workers are entitled to medical care and, in most cases, some wage loss benefits. The extent of those wage loss benefits is largely determined by the medical opinions given by the treating doctor(s).

Doctors closely aligned with employers and their insurance carriers have a tendency or inclination to give opinions favorable to the employers and carriers. When in doubt, their decisions favor employers and carriers.

Our law firm does not approve of this mentality. We believe that medical providers should act with the patient’s best interest in mind, rather than the employer/carrier’s.
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The outcome of the 2010 Florida Governor’s race will have a profound impact on the rights of individuals to pursue remedies against big business. Alex Sink will preserve those rights. Rick Scott, of Medicare fraud fame, will work to curtail them.

When Jeb Bush became Florida’s Governor, in 1998, Florida politics took a radical (not to be confused with conservative) turn to the right. With Florida’s House and Senate chambers controlled by Republicans, draconian laws designed to limit the ability of individuals from obtaining relief through the court system were passed with little resistance. (It was not unusual for these laws to gain passage with little to no Democratic support.) This was the Golden-Period in Florida for big business, the dark days for fairness and justice.

After 8 years of Jeb Bush, Floridian’s elected Charlie Crist as its governor, in 2006. He proved to be Jeb-light. Beholden to the radical-right, but kinder than his predecessor, Governor Crist encouraged and signed into law many anti-consumer, anti-individual rights laws, but also vetoed some egregious bills that Jeb Bush would have gladly approved. Compared to Jeb Bush, Crist respected the the rights of individuals.

Emboldened by high approval ratings, when Republican Mel Martinez retired from the U.S. Senate, Governor Crist decided to run for the office. This opened the door to career politician Bill McCollum and political neophyte Rick Scott to seek the Republican nomination as his replacement.

In the year of the Tea Party, Rick Scott pulled off a mild upset in the primary election by defeating McCollum. On the Democratic side, Alex Sink handily won her party’s nomination. Hence, the battle lines are drawn: Sink/Individuals v. Scott/Big Business.

Who Floridians elect as their next Governor will determine the type of state Florida will be for generations to come. Will Florida be a state that values and respects the rights of individuals above all else, as in “of the people, by the people, and for the people” (The Gettysburg Address), or will it be a state that places profits over people?

Republicans remain firmly in control of both chambers of the The Florida Legislature. As a group, they are more radically-right than the body in power during Jeb Bush’s rule, more determined than ever to prevent big business from being accountable to individuals. If Rick Scott is elected, Florida’s legislature will be able to operate without restraint. Every draconian bill passed by the legislature will be rubber-stamped into law by a Governor Scott. Not so a Governor Sink.

One example of the sharp differences between the candidates concerns the duty owed by insurance companies to their policyholders. Candidate Sink believes that insurance companies have a fiduciary duty to act in the best interests of their policyholders. This means that insurance companies must act in good faith to pay legitimate claims in a timely manner. This principle is supported by well-established Florida law. When an insurance company violates the principle, hence, acts in bad faith, it faces serious consequences. These consequences have done more than anything else to keep the insurance industry in line. Because Florida’s bad faith laws cut into insurance company profits, Rick Scott wants to eliminate them. (Do not believe the propaganda that payments made by insurance companies for acting in bad faith will be passed on to consumers. Bad faith payments are not allowed to be taken into consideration when determining rate premiums.)

Consider this: Even with strong bad faith laws, it is always a battle to resolve claims fairly with insurance companies. Imagine how much more difficult it will become if the bad faith hammer is taken away from the people. It is not a pretty picture.

Alex Sink, a successful yet compassionate businesswoman, will protect the rights of individuals by proposing positive and helpful legislation, while vetoing negative legislation which is surely to come from our Florida Legislature.

Please click here – ALEX SINK – to learn more about her.

(If Rick Scott’s policies aren’t enough to scare you, consider this segment: Rick Scott and the 5th Amendment.)
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In Patricia Farley v. Chase Bank, U.S.A, N.A., No. 4D09-651 (opinion published on June 9, 2010) (not final until disposition of timely filed motion for rehearing), the District Court of Appeal of the State of Florida, Fourth District, sent a cautionary message to those who fail to object within a reasonable period of time to incorrect account statements.

In every civil legal case, the initial burden of proof is upon the Plaintiff to present a prima facie case. In a lawsuit brought to collect a debt, this means that the Plaintiff/Creditor must come forward initially with probative evidence of the correct amount of the debt and the liability of the debtor. Without doing so, the Plaintiff/Creditor’s case will fail.

In the Farley case, before the lawsuit was filed Chase Bank had rendered an account statement to Ms. Farley. When Ms. Farley failed to pay or challenge the correctness of the statement, she was sued by the bank.

At the trial court level, Chase Bank came forward with evidence that Ms. Farley had received the account statement and failed to challenge its correctness. Ms. Farley insisted that Chase Bank must prove its case by providing an itemized copy of the account sued upon. The trial court disagreed with Ms. Farley, concluding instead that the bank had made a prima facie case by presenting evidence that Ms. Farley had failed to challenge the correctness of the pre-suit account statement. Ms. Farley’s appeal of the trial court’s decision was rejected by the 4th DCA.
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When the economy lags, like now, so do the amount of reported job-related accidents and workers’ compensation claims filed. I speak from the experience of handling claimants’ workers’ compensation cases for the past 23 years.

Employees fear being fired for having an accident on the job. In my experience, the fear is well founded. Accordingly, when jobs are scarce, employees are more hesitant to report accidents and injuries as compared to when jobs are plentiful.

In the mid- to late-1990s, the Clinton years, when the economy was booming and the next job was right around the corner, employees had little fear of reporting an injury, like a tweaked back – which could be a herniated disc – from heavy lifting or a twisted knee – which could be a meniscus tear or worse – from falling from a ladder. If necessary, employees hired lawyers to assert their rights under the law.

This is not so anymore. Not even close. I have noticed a decided decline in workers’ compensation cases over the past 4-5 years, especially the last 2-3 years. (This is not surprising given that, since December, 2007, the U.S. economy has shed more than 8 million jobs.)

As a result, many employees are failing to report and pursue benefits for serious injuries. The long term consequences of this can be profound. Serious injuries require medical attention and rest. Working through a serious injury is not always the answer. Injuries that fail to heal properly will only worsen over time, resulting in the need for greater medical care and the inability to maintain gainful employment in the future.

This is one of many negative consequences of a poor economy. Let’s hope that things improve soon.
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Hardworking individuals today are finding it increasingly difficult to meet their expenses. Mortgage foreclosures, credit card defaults, and vehicle repossessions are reaching record proportions. With the rise in defaults come the inevitable collection efforts by creditors and debt collection agencies. In some cases, the collection efforts cause more pain than the default itself. Fortunately for Florida residents, there is a body of law designed to combat overzealous creditors and bill collectors. Unfortunately, the law, located in Chapter 559 of the Florida Statutes and referred to as the Florida Consumer Collection Practices Act, is little-known and greatly underutilized.

Collection efforts are allowed and take many forms, from lawsuits, dunning notices, phone calls, to reporting the debt to credit reporting agencies. Thankfully, the Florida Consumer Collection Practices Act prohibits some activities and provides a remedy for breaches. Examples of proscribed activities include using or threatening violence; communicating or threatening to communicate with a debtor’s employer prior to obtaining final judgment; communicating with such frequency as to constitute harassment; using profane or vulgar language in a communication; simulating in any manner a law enforcement officer or a representative of any governmental agency; and communicating with the debtor between the hours of 9 p.m. and 8 a.m. It is also unlawful to claim, attempt, or threaten to enforce a debt when the collector knows that the debt is not legitimate or assert the existence of some other legal right when such collector knows that the right does not exist. This particular violation is quite common and typically arises in the context of a debt that once existed but was resolved.
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