Florida Injury Attorney Blawg

July 25, 2020

Jeffrey P. Gale, P.A. // Election of Remedy Key to Pursuing Civil Action for Personal Injuries Against Employers and Subcontractors

Florida statute 440.11 precludes workers injured on the job from recovering damages from the employer at law or in admiralty on account of such injury or death. Damages at law or in admiralty include non-economic damages such as pain and suffering. It is a common law remedy.

Damages for pain and suffering are not available under Florida’s workers’ compensation system. Basically, workers’ compensation benefits are limited to medical and indemnity. Statute 440.10 extends the 440.11 immunity to contractors and subcontractors on the same project who are not the injured worker’s actual employer. They are considered statutory employers.

It is every personal injury lawyer’s job to maximize his or her client’s recovery. In most workplace accidents, the injured worker is limited to workers’ compensation benefits, leaving the personal injury lawyer without a role. (Our law firm handles both personal injury and workers’ compensation cases.) This is not only because of 440.10 and 440.11. In some instances, for example, there is nobody to blame for the accident other than the employee.

Are there exceptions to 440.10 and 440.11? Yes. To succeed against the actual employer, the employee must demonstrate that the employer’s conduct rose to the level of intentional conduct substantially certain to result in injury. To make good on a case against a 440.10 entity, the employee must demonstrate the following:

1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril, 2) knowledge or awareness of the imminent danger on the part of the tortfeasor, and 3) an act or omission that evinces a conscious disregard of the consequences. Kline v. Rubio, 652 So. 2d 964, 965-66 (Fla. 3d DCA 1995).

Under certain circumstances, an employee may pursue these common law remedies after receiving workers’ compensation benefits. Vellejos v. Lan Cargo SA allowed the Claimant to pursue a civil remedy under the statutory exceptions after executing a broad release in his workers’ compensation settlement.

A person injured while working has the right to elect between two different remedies — workers’ compensation and common law — for compensation. “However … the point upon which a worker’s action with regard to a compensation claim constitutes an election of the workers’ compensation remedy to the exclusion of a civil action is not entirely clear.” Jones v. Martin Electronics, Inc., 932 So. 2d 1100, 1105 (Fla. 2006). Florida courts have clearly stated that the “[m]ere acceptance of some compensation benefits . . . is not enough to constitute an election” of remedies. Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984) (quoting Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 254 (Alaska 1976)); see also Wheeled Coach Indus., Inc. v. Annulis, 852 So.2d 430, 432 (Fla. 5th DCA 2003); Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000); Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA 1995); Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991).

There are also the cases where, because the compensability of the claim or the status of the employee at the time of the injury was contested, an election was not made: Vasquez v. Sorrells Grove Care, Inc., 962 So. 2d 411, 415 (Fla. 2d DCA 2007) (noting that the carrier contested the compensability of the claim and whether Vasquez was an employee); Hernandez v. United Contractors Corp., 766 So. 2d 1249, 1252 (Fla. 3d DCA 2000) (holding that because the carrier contested the compensability of the claim and took the position that there was no evidence that the accident arose out of and in the course and scope of Hernadez’s employment, there was no conclusion on the merits); Lowry v. Logan, 650 So. 2d 653, 658 (Fla. 1st DCA 1995) (“there remain disputed issues of fact concerning whether Lowry is an [sic] covered employee or an independent contractor and whether he was injured in the course and scope of his employment”); Wright v. Douglas N. Higgins, Inc., 617 So. 2d 460, 461-62 (Fla. 3d DCA 1993) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case); Wishart v. Laidlaw Tree Serv., Inc., 573 So. 2d 183, 184 (Fla. 2d DCA 1991) (“The critical issue of fact which must be determined by the trial judge is whether the employee was injured in the course and scope of his employment.”); Velez v. Oxford Dev. Co., 457 So. 2d 1388, 1391 (Fla. 3d DCA 1984) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case).

July 20, 2020

Jeffrey P. Gale, P.A. // Overcoming Workers’ Compensation Immunity in Florida Construction Accidents — Hooking Subcontractors

by Jeffrey P. Gale, P.A.

Florida lawyers handling accident cases are obligated to make every effort to search out all potential revenue sources to justly compensate their clients. Typically, people harmed in the workplace are entitled to workers’ compensation benefits, which are furnished by employers and their workers’ compensation insurance carriers (“E/C”). Because of the legal concept of workers’ compensation immunity, which is set forth in section 440.11, Florida Statutes, in most instances workers’ compensation is the only form of compensation a worker injured on the job will receive. While workers’ compensation serves a valuable purpose, it also has limitations. The most prominent of those limitations is that compensation is never paid for non-economic damages such as pain and suffering.

In some cases, the workplace injury is caused by a person or entity unrelated to the employer, commonly referred to as a “third party.” This may give the injured worker the opportunity to recover both workers’ compensation benefits from the E/C and civil law damages from the at-fault party. For example, an elevator repairman injured in a rear-end car crash while driving from one job site to another, is free to pursue civil damages against the driver, the owner of the vehicle, and the driver’s employer as the case may be. This is because none of these third party entities has workers’ compensation immunity.

July 12, 2020

Jeffrey P. Gale, P.A. // Some Sanity to Florida’s Workers’ Compensation One-Time (1x) Doctor Change Law

by Jeffrey P. Gale, P.A.

From the perspective of injured workers, I am a frequent critic of Florida’s Workers’ Compensation System. Of the many inequities built into the System, I reserve my greatest disdain for its rules on the provision of medical care. Essentially, employers and their workers’ compensation insurance carriers get to pick all of the treating doctors. Because most of these doctors derive a large percentage of their income from workers’ compensation cases, they naturally tend to render opinions favorable to the employers/carriers (E/C). If they don’t, they will stop getting workers’ compensation cases from the E/C.

The System gives injured workers very little leeway to overcome this built-in bias. Section 440.13(2)(f), Florida Statutes (2019) gives workers an inkling of an opening. The section provides as follows:

Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary. (Bold added for purposes of this blog.)

At best, it is a tiny opportunity. Because Employers/Carriers keep lists of favored doctors, once a “one change” request is made it is easy for them to pick another friendly doctor from a list to assure that the opinions rendered by doctor “B” are just as beneficial to their interests as the opinions given by doctor “A.” On rare occasions, the E/C will fail to authorize a physician within the 5 day period outlined in the statute. When this happens, the injured worker (Claimant) can choose his or her own doctor. However, it is not always easy for Claimants to find doctors willing to provide care without a guarantee of being paid. Even though the statute says that “such physician shall be considered authorized,” not every doctor is willing to undertake care based just on assurances from the Claimant’s attorney. They want pre-authorization from the workers’ compensation E/C. Unfortunately, most employers/carriers will not concede their statutory obligation without a fight. Claimants must sometimes waits months for the authorization to come through. Given the seriousness of certain medical conditions, this is not always feasible. Thankfully, our law firm has developed relationships with many fine medical providers who are willing undertake care on our assurances alone knowing we will fight to get them paid.

June 15, 2020

Jeffrey P. Gale, P.A. // Threat to Florida Motor Vehicle Insurance Coverage Rights

by Jeffrey P. Gale, P.A.

I have written many times before that maintaining Uninsured Motorist (UM)/Underinsured Motorist (UIM) coverage is an important way of providing a level of protection to self and others from the negative consequences of a serious motor vehicle accident. The coverage is outlined in Section 627.727, Florida Statutes.

To the extent of policy limits, UM covers losses sustained by the insured, passengers, and family members caused by a party who fails to maintain Bodily Injury (BI) insurance. Hit-and-run and “phantom vehicle” scenarios also fall under UM coverage. UIM covers losses that exceed the limits of coverage available under the at-fault party’s BI insurance. Neither UM/UIM nor BI are mandatory coverages under Florida law.

A component of UM/UIM is stacked v. non-stacked coverage. These are the similarities and differences between the two:

Aggregating Policy Limits. When people think of stacked UM/UIM, aggregation is the first concept that comes to mind. Aggregation is the act of combing the coverage limits of two or more stacked UM/UIM policies. For example, if the insured owns two vehicles with $100,000 of per person stacked UM/UIM coverage on each, a combined $200,000 in coverage is available. If stacked coverage is maintained on one but not the other, even if the other has non-stacked UM/UIM, aggregation is not available.

UM/UIM Coverage Following the Owner. With one exception, both stacked and non-stacked UM/UIM follow the insured. The lone exception is when the non-stacked insured is occupying another owned vehicle. Coverage will be denied. The exception is allowed by s.627.727(9), Florida Statutes. Otherwise, both stacked and non-stacked coverage follow the owner, whether struck as a pedestrian 1000 miles from the insured vehicle, while riding a bicycle, or occupying a friend’s car. The stacked insured is covered even if occupying another owned vehicle.

UM/UIM Coverage Following the Vehicle. Both stacked and non-stacked UM/UIM cover the insured vehicle.

For more than 50 years, UM/UIM has been considered an important component of a system fabricated to provide a basic level of insurance protection to the public. This is why, in 1971, in the case of Mullis v. State Farm Mut. Auto. Ins., the Florida Supreme Court came down hard against an exclusion in a UM policy. (In Mullis, the insurance carrier sought to deny UM benefits to the son of the named insured, his father, with whom he was residing at the time he was injured by an uninsured motorist while operating a motorcycle.) Through its words, the Supreme Court cemented a mindset towards UM/UIM that remains influential still:

May 30, 2020

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Law — Coronavirus in the Workplace

by Jeffrey P. Gale, P.A.

It is fairly certain that until an effective vaccine is created to control Covid-19 (a.k.a.
“Coronavirus”), the virus will continue to spread from human-to-human contact. With the reopening of businesses, the threat of being infected in the workplace is real. If an employee can prove that his coronavirus infection came from the workplace, he would be entitled to workers’ compensation benefits (including medical and indemnity). The trick is in proving the case.

There are two possible approaches. One approach is to view the infection as an occupational disease and pursue relief under s. 440.151, Florida Statutes. To succeed under this section of Chapter 440, the employee must establish the following elements:

The virus has resulted from the nature of the employment in which the employee was engaged under such employer. Section 440.151(1) explains “nature of employment” this way: “in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations”.
The virus was actually contracted while so engaged.
The nature of the employment was the major contributing cause of the disease.

Because the virus knows no boundaries, establishing that it was contracted in the workplace and resulted from the nature of the employment is going to be exceedingly difficult in most cases. While there may be some types of employment, say, medical staff in hospitals, where the elements will be easier to satisfy, the burden of proof in most cases may be too great to overcome. Making matters worse is that in cases involving occupational disease, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. s. 440.09(1). This is a higher standard of proof than for many other types of workplace injuries. The lower standard is, “to a reasonable degree of medical of medical certainty.” Section 440.09(1), Florida Statutes.

May 25, 2020

Jeffrey P. Gale, P.A. // Claim for Punitive Damages Allowed for Cell Phone Usage While Driving

by Jeffrey P. Gale, P.A.

Punitive damages under Florida law can increase the amount of money awarded against a defendant by a factor far in excess of the amount awarded by the jury for compensatory damages. See, Florida Statute 768.73. Punitive damages are awarded “as punishment to the wrongdoer, for the purpose of deterring him and others committing similar violations of the law from such wrongdoing in the future. Therefore exemplary damages are, as it has been said, allowed by the law, not as a matter of compensation to the injured party, but because of the quality of the wrong done by the tortfeasor, from which the injured party suffers.” Florida East Coast Railway v. McRoberts, 111 Fla. 278, 149 So. 631, 632 (1933).

With its roots in early common law, the doctrine has since, to some extent, been codified in sections 768.72-768.737 of the Florida Statutes. However, reference to case law remains important to understand procedure and parameters.

The plaintiff must overcome high hurdles before being allowed to make a claim for punitive damages. A showing based on record or proffered evidence of intentional conduct or gross negligence is required. The burden is even greater when seeking to impose punitive damages on an employer, principal, corporation, or other legal entity. See s. 768.72, Florida Statutes.

May 23, 2020

Jeffrey P. Gale, P.A. // Tolling Florida’s Workers’ Compensation Statute of Limitations (SOL)

by Jeffrey P. Gale, P.A.

Our firm recently received a phone call from a highly distraught gentleman claiming that his Florida workers’ compensation case was closed as a result of running afoul of the system’s statute of limitations. After a lengthy question and answer session, I concluded that his only possible avenue of recourse was a malpractice case against his workers’ compensation lawyer. This is not the answer he wanted to hear.

Florida’s workers’ compensation statute of limitations is codified in Florida Statute 440.19. Subsection (1) describes the SOL as being “within 2 years after 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.” Subsection (2) sets forth a mechanism for extending this period, worded as follows:

Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment.

The gentleman with whom I spoke had a serious accident in 2008 when falling through a glass window. He has undergone four surgeries and has a fifth scheduled to remove glass from his leg. (The fifth surgery is scheduled with a Medicare doctor.) He was recently told by his workers’ compensation lawyer that his workers’ compensation case is closed because none of the subsection (2) factors set forth above were met.

It became apparent from our discussion that the lawyer was correct. However, it also became apparent that the fault for this, at least in part, might lie with the lawyer. While insurance carriers can sometimes account for the inadvertent failure of a claimant to take actions necessary to keep within the SOL, which would give the claimant another chance, I saw none of that in this case. (See these blogs for examples of carrier responsibility: Jeffrey P. Gale, P.A. // Neglecting Duty Prevents Application of Workers’ Compensation Statute of Limitations; Jeffrey P. Gale, P.A. // Navigating Florida’s Tricky Workers’ Compensation Statute of Limitations (SOL); Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Law — Estoppel as a Response to Trickery and Neglect.)

March 24, 2020

Jeffrey P. Gale, P.A. // Using Google Images as Evidence in Florida Premises Liability Cases

by Jeffrey P. Gale, P.A.

One of the most important elements in a premises liability case is proving notice of the dangerous condition. This is done by demonstrating that the owner and/or possessor of the premises had actual or constructive knowledge of the dangerous condition before the accident occurred.

Google Maps was launched in 2005, Google Street View in 2007. Images captured by both sometimes demonstrate constructive knowledge by showing that a dangerous condition existed for a period of time sufficient to impute notice against the owner or possessor of the property. The trick for the proponent of the Google images is to get them admitted into evidence.

March 22, 2020

Jeffrey P. Gale, P.A. // Resolving Health and Disability Insurance Liens in Personal Injury Cases Under Florida Statute 768.76

by Jeffrey P. Gale, P.A.

It is common for medical bills incurred in Florida personal injury cases to be paid by health insurance. Some people injured in accidents also receive private disability insurance benefits. Most health and disability insurance policies afford insurance carriers subrogation or reimbursement rights against the insured who has recovered all or part of the insurance payments from a tortfeasor (the at-fault party). This means that the carrier has the right to be repaid some or all of the insurance benefits paid out.

How much must be repaid depends in large measure on the law governing the relationship between the insurer and insured. Self-funded employer policies are governed by ERISA. Non-ERISA policies and fully-insured employer policies fall under the authority of section 768.76(4), Florida Statutes. This blog addresses reimbursement under the Florida Statute.

Section 768.76(4) reads as follows:

A provider of collateral sources that has a right of subrogation or reimbursement that has complied with this section shall have a right of reimbursement from a claimant to whom it has provided collateral sources if such claimant has recovered all or part of such collateral sources from a tortfeasor. Such provider’s right of reimbursement shall be limited to the actual amount of collateral sources recovered by the claimant from a tortfeasor, minus its pro rata share of costs and attorney’s fees incurred by the claimant in recovering such collateral sources from the tortfeasor. In determining the provider’s pro rata share of those costs and attorney’s fees, the provider shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney’s fees.

Most statutes require some sort of judicial intervention to establish their parameters. In Magsipoc v. Larsen, 639 So.2d 1038 (Fla. 5th DCA 1994), the application of section (4) was considered on appeal in a wrongful death case involving the repayment of health insurance benefits to the carrier.

Before dying after nearly drowning in a pool, a young child in the Magsipoc case received extensive medical care in an effort to save her life. Health insurance paid all of the medical expenses and costs (totaling $472,000). Thereafter, the child’s parents sued the pool owners on behalf of themselves and their daughter’s estate.

March 17, 2020

Jeffrey P. Gale, P.A. // Example of State Farm’s Callous Indifference to Human Suffering

by Jeffrey P. Gale, P.A.

While recently researching a Florida legal matter, I came upon this Utah Supreme Court case — Hill v. State Farm Mutual Insurance Company. It demonstrates a shocking indifference by a billion dollar insurance company towards the feelings of grieving family members whose loved ones were killed in a crash caused by an intoxicated motorist. State Farm dragged the family members through the coals for more than a year over a measly $5,510.

While the opinion was written in 1988, not much has changed through the years. When it comes to money, State Farm is always ready, willing and able to flex its outsized muscles.

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FLORIDA INJURY ATTORNEY BLAWG