Workers' Compensation

July 27, 2022

Jeffrey P. Gale, P.A. // Unrelated Works Exception to Workers’ Compensation Immunity Does Not Apply to Employees of a Different Subcontractor

It is the job of every injury lawyer to maximize the client’s recovery. Sometimes when a person is hurt at work, more than one remedy is available. Workers’ compensation is one remedy. Civil law is another.

Florida’s workers’ compensation laws do not allow for the recovery of noneconomic damages such as pain and suffering. Workers’ compensation covers only authorized medical expenses and a defined period of lost wages. Noneconomic damages are not allowed. Civil remedy damages include economic damages such as medical expenses and lost wages as well as noneconomic damages.

Florida Statute 440.11 provides immunity to employers and their employees from civil remedy actions. There are exceptions to this rule. The exceptions are outlined in 440.11. The employer loses its immunity if it fails to maintain the workers’ compensation security required by Chapter 440 or commits an intentional tort. Section 440.11(1)(b) describes the fellow-employee exceptions:

Fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment. (Italics added.)

In Moradiellos v Gerelco Traffic Controls, Inc., 176 So.3d 329 (Fla. 3rd DCA 2015), Mr. Moradiellos was killed in a construction site incident caused by the negligence of a subcontractor’s employee. Employees of construction subcontractors typically also get the 440.11 workers’ compensation immunity. The decedent was employed by the general contractor.

May 12, 2022

Jeffrey P. Gale, P.A. // Limiting Social Security Disability Offset After Florida Workers’ Compensation Settlement

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system provides for three types of weekly indemnity benefits:

440.15(1) Permanent Total Disability

440.15(2) Temporary Total Disability

400.15(4) Temporary Partial Disability

An injured worker may simultaneously be eligible for monthly Social Security Disability benefits under 42 U.S.C. s. 423. If the combined benefits exceed 80% of the claimant’s workers’ compensation average weekly wage (AWW), section 440.15(9), Florida Statutes, allows the workers’ compensation carrier to reduce its payment until the combined amount gets down to 80%. (The state precedence is authorized by 42 U.S.C. § 424a(d).)

Not every state allows the insurance carrier to take an offset. In the absence of the carrier taking an offset, the federal government may take an offset. (The federal offset formula, contained at 42 U.S. Code Sec. 424a – Reduction of disability benefits, is somewhat different than Florida’s workers’ compensation formula.)

While the claimant is receiving periodic workers’ compensation indemnity payments and the carrier is taking the offset, it is unlikely the Social Security Administration (SSA), which administers SSD, is entitled to an offset. However, most Florida workers’ compensation cases resolve with a lump sum washout settlement resulting in the termination of periodic payments. Surprisingly, at this point, the SSA is eligible to begin taking offsets. (The SSA offset applies even when the WC claimant does not qualify for SSD until after a settlement. Additionally, where the SSA had the right but failed to take the offset, resulting in “overpayments,” the SSA may recover the overpayments.)

March 24, 2022

Jeffrey P. Gale, P.A. // $2 Million Settlement Achieved by Avoiding Florida’s Workers’ Compensation Immunity Law

by Jeffrey P. Gale, P.A.

What began as a product liability investigation, ended in a $2,000,000 personal injury settlement against the owner of an altered riding lawnmower (pictured).

Our client lost his right leg when run over by the lawnmower he was operating for his employer. Initially thinking that the mower was owned by the employer, which would give the employer workers’ compensation immunity, we set our sights on a product liability case as the only way to secure a civil remedy for our client.

We quickly discovered that any products liability case was barred by Florida’s Statute of Repose. We also learned that our accident was caused by a post-manufacture alteration to a safety feature.

February 18, 2022

Jeffrey P. Gale, P.A. // Miles Fee Is Customary And Presumptively Correct In Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

Until six years ago, it was a crime in Florida for an attorney to accept a fee from a claimant in a workers’ compensation case that was not approved by a Judge of Compensation Claims (JCC) in accordance with the fee formula contained in section 440.34(1), Florida Statutes. Section 440.105(3)(c), Florida Statutes. The crime was punishable by up to one year in prison (s. 775.082) and a fine (s. 775.082). Any lawyer violating 440.105(3)(c) could also expect to be suspended or disbarred.

In Miles v. City of Edgewater Police Dept/Preferred Governmental Claims Solutions, 190 So. 3d 171 (Fla. 1^st DCA 2016), the JCC rejected an attorney/client contract wherein the client, an injured worker, and her union agreed to pay a workers’ compensation lawyer a fee in excess of the amount allowed under 440.34. Because it would have been a financial hardship for the lawyer to handle the case under the formula set forth in 440.34, she withdrew from the case. Unable to find a lawyer to take her case, the injured worker proceeded Pro Se. Her claims were denied by the JCC.

Claimant argued on appeal that Florida Statutes 440.105 and 440.34 violated the First Amendment of the Constitution of the United States and the fundamental right to contract. The First District Court of Appeal agreed.

At its heart, Miles is about freedom of speech and the right of individuals to contract freely for legal services. The Court found that 440.105 and 440.34 violated both rights:

In conclusion, the restrictions in sections 440.105 and 440.34, when applied to a claimant’s ability to retain counsel under a contract that calls for the payment of a reasonable fee by a claimant (or someone on his or her behalf), are unconstitutional violations of a claimant’s rights to free speech, free association, and petition — and are not permissible time, place, or manner restrictions on those rights. Likewise, those provisions also represent unconstitutional violations of a claimant’s right to form contracts — and are not permissible police power restrictions on those rights. Miles at 184.

December 18, 2021

Jeffrey P. Gale, P.A. // Proceed Cautiously With Settlement Releases

by Jeffrey P. Gale, P.A.

Think of an injury case like navigating a ship from one port to another. Signing up the case is the equivalent of throwing off the ropes and pulling safely away from the dock. Being at sea is analogous to litigation. Some days you will eat the bear and some days the bear will eat you. Stay your course. Invariably, chart adjustments will be necessary, but the final destination always remains the same: favorable resolution of the case. Settling the case equates to pulling into port. However, it is not the last act. The ship must be successfully docked and secured. The Settlement Release is part of this final act. It must be done properly to avoid damaging the ship.

Our law firm handles both workers’ compensation and personal injury/wrongful death cases. It is not uncommon to have both types of cases arising out of one accident. For example, we represent a gentleman who suffered numerous catastrophic injuries in a motor vehicle crash. Since the accident happened in the course and scope of his employment, he was covered under workers’ compensation. We recently settled the workers’ compensation case. The common law liability case, against the second vehicle’s owner and our client’s co-worker [brought under a theory of gross negligence to overcome workers’ compensation immunity], remains ongoing.

As part of the workers’ compensation mediated settlement, the workers’ compensation carrier agreed that the settlement did not affect the liability case against the third party or the co-worker. Nevertheless, the General Release it submitted to us contained wording that could be construed as preventing our client from proceeding against the co-worker. We have reworded it to avoid this outcome.

November 8, 2021

Jeffrey P. Gale, P.A. // Election of Remedies — Seeking Workers’ Compensation Benefits After First Pursuing Civil Remedy

by Jeffrey P. Gale, P.A.

Some wrongs present the aggrieved party with more than one legal remedy. A common example is when an injured person has the option of seeking a recovery under common law or workers’ compensation pursuant to Chapter 440, Florida Statutes. Once the choice is made and pursued beyond a certain point, the alternate option cannot be pursued. This is the legal principle known as Election of Remedies.

Typically, the injured person receives or seeks workers’ compensation benefits before deciding to pursue civil damages. There is no shortage of Florida appellate case law addressing how far one may go in the pursuit before the choice becomes binding. There is very little case law addressing the opposite scenario, namely, how far one may go in pursuing a civil remedy before being foreclosed from seeking workers’ compensation benefits.

The legal analysis is the same for both types of cases:

An election is matured “when the rights of the parties have been materially affected to the advantage of one or the disadvantage of the other,” and “[i]t is generally conceded that to be conclusive it must be efficacious to some extent.” Williams v. Robineau, 124 Fla. 422, 168 So. 644 (1936); Williams v. Duggan, 153 So.2d 726 (Fla. 1963).

It is usually much easier to determine whether an election has been made in a civil case than it is in a workers’ compensation case. In civil cases, damages are not paid unless and until a determination has been made on the legal issue of whether common law is the proper vehicle for pursuing a remedy. Until this final determination is made, the election has not matured.

June 13, 2021

Jeffrey P. Gale, P.A. // Two-Tiered Analysis Required Under F.S. 112.18(1) a/k/a the “Firefighter’s Presumption” or the “Heart-Lung” Statute When Disabling Condition Results From a Combination of an Underlying Condition With a “Triggering Event.”

by Jeffrey P. Gale, P.A.

In City of Jacksonville v. Ratliff, 217 So. 3d 183 (Fla. 1st DCE 2017), a firefighter with a pre-existing history of diabetes, high cholesterol, prior history of smoking, and a family history of early onset CAD – blocked arteries (CAD – coronary artery disease) caused by the build-up of plaque – among other pre-existing factors, suffered a myocardial infarction (another term for heart attack) after a stressful meeting at work. The myocardial infarction resulted from the rupture of the plaque.

The Employer/Carrier (E/C) presented uncontroverted evidence that the CAD was caused by preexisting factors unrelated to work. Nevertheless, the Judge of Compensation Claims (JCC) awarded compensation and related medical treatment for the myocardial infarction under the “heart-lung” statute, section 112.18, Florida Statutes. E/C appealed. The First DCA affirmed the JCC’s decision.

The Claimant asserted compensability of the heart condition on a “presumption only” basis; or in other words, the Claimant had no medical evidence of occupational causation and relied solely on the presumption of the “heart-lung” statute. To rebut the presumption, E/C faced only the threshold rebuttal burden of presenting competent evidence, rather than clear and convincing evidence, that the disease was not work related. This required E/C to provide evidence that a single factor, or multiple factors, wholly combined, causing the CAD were non-industrial in nature. Punsky v. Clay Cty. Sheriff’s Office, 18 So.3d 577 at 583 (Fla. 1st DCA) (on rehearing en banc); Fuller v. Okaloosa Corr. Inst., 22 So.3d 803, 806 (Fla. 1st DCA 2009).

E/C met its burden. Even still, it was held responsible for Claimant’s heart attack.

May 31, 2021

Jeffrey P. Gale, P.A. // Personal Injuries Sustained in Subsequent Accident May Be Compensable

by Jeffrey P. Gale, P.A.

We currently represent an elderly woman who was knocked down in the hallway of her condominium building by a large, unleashed dog. She fell and struck her head on the ground. In the days following the event, she had headaches and was lightheaded. While taking a shower, she fainted. As a result of this event, she was hospitalized then transferred to a facility for a month of rehabilitation. She is now receiving 24/7 attendant care at home.

Are the injuries sustained from the subsequent fall compensable?

Something similar happened in Eli Witt Cigar & Tobacco Co. v. Matatics, 55 So. 2d 549 (Fla. 1951). The Plaintiff/Appellee had suffered a brain concussion and other injuries in a motorcycle accident. Within weeks of the accident, he climbed a ladder to reach his attic. While descending, he suffered a dizzy spell and fell to the concrete floor. His injuries from this fall were permanent and catastrophic — paralysis in his lower and upper extremities.

March 24, 2021

Jeffrey P. Gale, P.A. // Florida Statute Creates Presumption Entitling Firefighters and Law Enforcement or Correctional Officers to Workers’ Compensation Benefits

by Jeffrey P. Gale, P.A.

Unless you are a firefighter or any law enforcement officer, correctional officer, or correctional probation officer, in order to receive workers’ compensation benefits under Chapter 440 of the Florida Statutes for any condition or impairment of health caused by tuberculosis, heart disease, or hypertension, the burden will be on you to establish to a reasonable degree of medical certainty, based on objective relevant medical findings, that the workplace was the major contributing cause — meaning more than 50% — of your condition or impairment of health. See section 440.09(1), Florida Statutes. This can be a daunting task.

If, however, you are a firefighter or any law enforcement officer, correctional officer, or correctional probation officer, “[A]ny condition or impairment of health … caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty….” See section 112.18(1)(a), Florida Statutes. This is a game changer.

Two conditions apply which keep the presumption from being an absolute:

The “firefighter or law enforcement officer must have successfully passed a physical examination upon entering into any such service as a firefighter or law enforcement officer, which examination failed to reveal any evidence of any such condition.” Section 112.18(1)(a), Florida Statutes.
The presumption can be overcome by a showing that the condition or impairment was not accidental and suffered in the line of duty. Section 112.18(1)(a), Florida Statutes.

The “firefighter or law enforcement officer must have successfully passed a physical examination upon entering into any such service as a firefighter or law enforcement officer, which examination failed to reveal any evidence of any such condition.”

In City of Homestead/Preferred Gov’t Claims Solutions v. Foust, 242 So.3d 1169 (Fla. 1st DCA 2018), even though a law enforcement officer (LEO) had undergone a physical before becoming an auxilary LEO, he was denied compensation for both heart disease and hypertension because he had not undergone a physical examination upon entering into service as a full-time LEO.

March 15, 2021

Jeffrey P. Gale, P.A. // Severely Injured Uber Eats Operator Fighting for Compensation in Florida

by Jeffrey P. Gale, P.A.

We represent a young man who was severely injured in a roadway accident while making a delivery for Uber Eats. He was struck by a phantom motor vehicle (i.e., unidentified vehicle) while riding his bicycle and left to die by the side of the road. He was discovered and transported to Ryder Trauma Center, where he underwent emergency surgery including a craniotomy. Part of his skull has been permanently replaced by a metal plate.

Uber Eats has denied him all benefits.

Uber claims that its Florida operators are independent contractors. Because true independent contractors are not employees, they are not entitled to Florida workers’ compensation benefits (see 440.02(15)(d)). Workers’ compensation would cover medical and indemnity (i.e., wages) benefits. Our young client, who was a senior in high school when this event happened, has received neither through Uber, a multi-billion dollar company. Nothing. Zero. Zilch.