Workers' Compensation

March 25, 2025

Jeffrey P. Gale, P.A. /// Florida Workers’ Compensation Permanent Total Disability (PTD) Benefits

Florida’s workers’ compensation system, outlined in Chapter 440 of Florida’s statutes, allows four different types of wage loss benefits divided into two categories. The categories are temporary and permanent indemnity benefits.

The two types of temporary indemnity benefits are Temporary Total Disability (TTD) and Temporary Partial Disability (TPD). Section 440.15(2)(a) describes TTD as being a “disability total in quality but temporary in quality….,” while TPD, described in section 440.15(4)(a), is the monetary benefit paid when the person’s disability is less than total, meaning that the injured employee is capable of performing some type of physical work activity.

TTD is paid at 2/3 of the injured employee’s average weekly wage (AWW), while TPD pays at “80 percent of the difference between 80 percent of the employee’s average weekly wage and the salary, wages, and other remuneration the employee is able to earn postinjury….” For example, if AWW is $1,000, the TTD and TPD payments are $666.70 and 640, respectively. The good news is that workers’ compensation indemnity benefits are not subject to taxation.

Temporary indemnity benefits end once the injured employee is placed at maximum medical improvement (MMI) — 440.02(2): (10) “Date of maximum medical improvement” means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability — in all disciplines by the workers’ compensation authorized medical providers. So, for example, an injured worker under the care of, say, an orthopedist and a neurologist, must be at MMI from both doctors for temporary benefits to end. (Temporary benefits also end as a matter of law after 260 weeks of payments. Typically, MMI is reached well before 260 weeks, or 5 years, of payments have been made.)

For monetary reasons, fights often ensue over disability status, whether total or partial, and MMI. Unfortunately, the carriers get to select the treating doctors. Not surprisingly, these handpicked doctors typically offer opinions helpful to the carriers. While there are ways to fight back, the options are limited by the system’s decided slant in this regard in favor of employers and carriers.

March 18, 2025

Jeffrey P. Gale, P.A. /// Practice Pointer: Keep Your Eye On the Ball

by Jeffrey P. Gale, P.A.

Everyone is familiar with the idiom, “Keep your eye on the ball.” What it means, quite simply, is to keep one’s attention focused on the matter at hand. Lawyers must remember this during intense situations.

Last week we experienced just such an intense situation. In a case involving severe personal injuries sustained by our client, we attended a hearing on the Defendant’s motion for summary judgment. The corporate defendant was asking the court to enter a judgment that it was not vicariously liable for the negligence of its agent. In other words, Defendant was asking the court to throw out the case against it. Serious stuff.

Defendant’s motion was brought under Florida Rule of Civil Procedure 1.510, which reads in pertinent part as follows:

(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law (bold added for emphasis).

The burden is on the moving party (in our case, the Defendant) to demonstrate the absence of genuine material facts, that no material issues remain for trial, and that the movant is entitled to judgment as a matter of law. See, Florida Rule of Civil Procedure 1.510(a). “An issue is genuine if ‘a reasonable trier of fact could return judgment for the non-moving party,’ and ‘[a] fact is material if it might affect the outcome of the suit under the governing law.’” Birren v. Royal Caribbean Cruises, LTD, 2022 WL 657626, at *2 (S.D. Fla. March 4, 2022), quoting, Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11^th Cir. 2008) and Anderson v. Liberty Lobby, Inc., 477 U.S. 22, 247-48 (1986).

January 16, 2025

Jeffrey P. Gale, P.A. /// Don’t Underestimate the Potency of Florida Workers’ Compensation Statute 440.39

by Jeffrey P. Gale, P.A.

It is not uncommon for a personal injury case and a workers’ compensation case to arise out of the same accident. This is often the case when an employee is hurt in the course and scope of his job through the negligence of a third-party. Our law firm handles both types of cases.

Florida Statute 440.39 gives the employer or its workers’ compensation insurance carrier, as the case may be, lien rights in the proceeds of any recovery made in the personal injury liability case. In consideration of this right, the employer and carrier have a “duty to cooperate” with the employee in prosecuting claims and potential claims against third-party tortfeasors. See sec. 440.39(7).

The court in Shaw v. Cambridge Integrated Servs. Group, Inc., 888 So.2d 58, 64 (Fla. 4th DCA 2004), declared that the duty to cooperate found in section 440.39(7) is “[o]ne of the most important rules and conditions stated in the Workers Compensation statute.” For example, an employer/carrier’s failure to cooperate can have adverse consequences on their lien rights. 440.39(3)(a) provides that

the failure by the employer or carrier to comply with the duty to cooperate imposed by subsection (7) may be taken into account by the trial court in determining the amount of the employer’s or carrier’s recovery, and such recovery may be reduced, as the court deems equitable and appropriate under the circumstances, including as a mitigating factor whether a claim or potential claim against a third party is likely to impose liability upon the party whose cooperation is sought, if it finds such a failure has occurred.

A violation of 440.39 can also subject the employer/carrier to a spoliation claim for failing to preserve evidence. This cause of action is not barred by the employer’s workers’ compensation immunity outlined in section 440.11, Florida Statutes. See General Cinema Beverages of Miami v. Mortimer, 689 So.2d 276, 278 (Fla. 3d DCA 1995).

January 9, 2025

Jeffrey P. Gale, P.A. /// Scrutinize Workers’ Compensation Carrier’s Paylog to Reduce WC Lien Amount

by Jeffrey P. Gale, P.A.

It is not uncommon for an individual hurt in a work-related accident, for which workers’ compensation benefits are due, to also have a liability case against a negligent third party. Where compensation is recovered in both cases, the injured party may have to give some of the third-party recovery to the workers’ compensation insurance carrier to satisfy its workers’ compensation lien. See section 440.39(2), Florida Statutes.

There is a formula, commonly referred to as the Manfredo Formula, used for establishing the amount of the lien recovery. However, before getting to the formula, it is necessary to determine the amount of recoverable expenditures to plug into the formula.

November 12, 2024

Jeffrey P. Gale, P.A. // Key Florida Workers’ Compensation Emergency Medical Care Issues

by Jeffrey P. Gale, P.A.

Emergency medical services and care can play a pivotal role in Florida workers’ compensation cases.

Under section 440.13(1)(e), Florida Statutes, “emergency services and care” is defined by its reference to section 395.002, Florida Statutes (2024), as follows:

(9) “Emergency services and care” means medical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists and, if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility.

An “emergency medical condition,” as defined in section 395.002(8)(a), Florida Statutes (2024), means:

(8) “Emergency medical condition” means:

(a) A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:

1. Serious jeopardy to patient health, including a pregnant woman or fetus.

2. Serious impairment to bodily functions.

3. Serious dysfunction of any bodily organ or part.

The provision of “Emergency services and care” is an exception to the rule allowing employers and their workers’ compensation insurance carriers (E/C) to choose the medical providers and pre-approve medical care. For example, in cases involving serious injuries where surgery is performed, it is not uncommon for the emergency room surgeon to become the authorized provider for future care. The doctor may not have a relationship with the E/C or even be familiar with the workers’ compensation system. Once authorized, providers only become deauthorized by agreement of the parties or by court order based on a failure to furnish care meeting community standards.

October 11, 2024

Jeffrey P. Gale, P.A. // Prohibited Florida Workers’ Compensation Balance Billing

by Jeffrey P. Gale, P.A.

A medical provider authorized by an employer or workers’ compensation insurance carrier to furnish care to an injured worker is paid based on a fee schedule. (Section 440.13(b), Florida Statutes allows for deviations by agreement.)

Fee schedule payment amounts are always below the provider’s usual and customary charge. However, balance billing by the provider, i.e., an effort to collect from the employee an amount in excess of the fee schedule, is prohibited under Chapter 440 and section 559.72(9), Florida Statutes. In fact, 559.77 creates a civil remedy against medical providers who engage in such balance billing.

In Sun Bank/South Florida, N.A. v Baker, 632 So.2d 669 (Fla. 4th DCA 1994) and Freshwater v Baker, 707 So.2d 937 (Fla. rd DCA 1998), workers’ compensation authorized medical providers brought suit against injured workers to recover amounts above what they accepted in payment from the workers’ compensation carriers. In each case, the injured worker had made a separate recovery from a third party responsible for causing the accident. (It is not uncommon for an employee hurt in the course and scope of his or her employment to also have a cause of action against a third-party, i.e., an entity other than the employer.) In Sun Bank, the injured worker even signed an agreement with the doctor promising to pay any part of the bill not paid by an insurer and containing an acknowledgment that the agreement “constitutes a lien against any recovery for any liability from any source whatsoever.”

September 20, 2024

Jeffrey P. Gale, P.A. // Medicare Set-Aside (MSA) Issues in Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

Medicare is a taxpayer-funded federal health insurance program that pays some health insurance costs. People are eligible for Medicare when they turn 65 years old. In addition, Medicare is automatically available 24 months after becoming entitled to Social Security Disability Income (SSDI). (Date of entitlement is the date of disability plus a five month waiting period. For example, if the date of disability is June 1, 2024, the date of entitlement is November 1, 2024, meaning that the earliest the applicant will qualify for Medicare is November 1, 2026 — there are exceptions to this rule if the disabling diagnosis is End Stage Renal Disease or ALS.)

Medicare will not pay the medical expenses associated with a job accident while the workers’ compensation carrier is paying for the care. This is simple and straightforward. Matters become more complicated when a settlement of the workers’ compensation case is contemplated.

While the workers’ compensation carrier will not pay for medical care after a settlement, Medicare places conditions on paying for post-settlement accident-related medical services. Before it begins paying, Medicare requires that a portion of the settlement proceeds be depleted on accident-related medical expenses.

This requirement does not apply in every instance. It is only triggered under these circumstances:

The total workers’ compensation settlement amount is over $25,000 and the claimant is a Medicare beneficiary.
The claimant is not a Medicare beneficiary, but expects to enroll within 30 months of the settlement date, and the total settlement amount is over $250,000.

When the requirement is triggered, Medicare should be presented with a proposed amount to be paid from the workers’ compensation settlement before the settlement becomes binding. While the settlement does not have to be made contingent on Medicare’s approval, the workers’ compensation insurance carrier will insist on it. In most cases, it’s also a good idea for the claimant. The proposal is called a Medicare Set-Aside (MSA).

July 21, 2024

Jeffrey P. Gale, P.A. // Comparative Fault Not Part of Manfredo Formula Equation

by Jeffrey P. Gale, P.A.

Not infrequently, both a workers’ compensation case and a personal injury liability case will arise from the same accident. For example, a construction site supervisor involved in a motor vehicle crash while traveling to Home Depot for supplies can pursue workers’ compensation benefits from the employer and civil liability damages from the at-fault party.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

June 5, 2024

Jeffrey P. Gale, P.A. // Positive Course Correction in Florida Workers’ Compensation Law

by Jeffrey P. Gale, P.A.

I have railed for years against various aspects of Florida’s workers’ compensation system. One of my main targets has been section 440.13(9)(c), Florida Statutes, covered under the section of the statute dealing with “Expert Medical Advisors.” What bothered me about the law is that it excluded workers’ compensation judges, known as judges of compensation claims (JCC), from being able to perform an important job function.

Before the 2023 Florida legislative session, when there was a “disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work,” the JCC was mandated by 440.13(9)(c) to order the injured employee to be evaluated by an expert medical advisor whose opinion was presumed to be correct unless clear and convincing evidence demonstrated otherwise. Rarely did a JCC rule against the presumption.

May 2, 2024

Jeffrey P. Gale, P.A. // Gamesmanship Practiced by Florida Workers’ Compensation Doctors

by Jeffrey P. Gale, P.A.

Florida law authorizes employers and their workers’ compensation insurance carriers (“E/C”) to choose every one of an injured worker’s treating doctors. See, sections 440.13(2)(a) & (f), Florida Statutes. They pick medical providers, sometimes called “The Usual Suspects,” from whom they can expect to receive favorable opinions. Because the doctors like the steady and easy income, they play along. So much for honoring the Hippocratic Oath.

To receive workers’ compensation wage loss benefits, also known as indemnity benefits (see, sections 440.13(2)&(4), Florida Statutes), the burden is on the injured worker (a/k/a, Claimant) to establish a connection between the work-related injuries and any wage loss. In 2024, the weekly wage loss benefit can be as much as $1,260.

Medical providers authorized by the E/C are required to complete form DWC-25 after each appointment. Section IV of the form addresses the injured worker’s “Functional Limitations and Restrictions.” It contains three paragraphs (numbers 21, 22, and 23) for this purpose with corresponding boxes for the provider to check. Paragraph 21 indicates that the Claimant does not have any functional limitations. Paragraph 22 provides that the Claimant’s injuries are of such severity he cannot work. Paragraph 23 says that the Claimant can work with restrictions.