Florida Injury Attorney Blawg

October 27, 2019

Jeffrey P. Gale, P.A. // Procedure for Resolving Medicaid Liens in Florida Personal Injury Cases

In the context of personal injury cases, a lien is the right of a non-party to be reimbursed from the proceeds of a case for payments made on behalf of the individual for whom the proceeds are intended. Such liens include for expenditures related to property damage, workers’ compensation benefits, health insurance, Medicare and Medicaid.

Clients and their lawyers who ignore liens do so at their peril. This blog focuses on the Medicaid lien.

Title XIX of the Social Security Act authorizes payments for medical assistance and related assistance to qualifying individuals. Florida’s Agency for Health Care Administration (AHCA) is designated as the single state agency authorized to make the payments. § 409.902(1), Florida Statutes. § 409.10, known as the as the “Medicaid Third-Party Liability Act,” creates the Medicaid lien. Subsection (1) provides:

It is the intent of the Legislature that Medicaid be the payor of last resort for medically necessary goods and services furnished to Medicaid recipients. All other sources of payment for medical care are primary to medical assistance provided by Medicaid. If benefits of a liable third party are discovered or become available after medical assistance has been provided by Medicaid, it is the intent of the Legislature that Medicaid be repaid in full and prior to any other person, program, or entity. Medicaid is to be repaid in full from, and to the extent of, any third-party benefits, regardless of whether a recipient is made whole or other creditors paid. Principles of common law and equity as to assignment, lien, and subrogation are abrogated to the extent necessary to ensure full recovery by Medicaid from third-party resources. It is intended that if the resources of a liable third party become available at any time, the public treasury should not bear the burden of medical assistance to the extent of such resources.

In Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006), the United States Supreme Court ruled that the federal Medicaid Act’s anti-lien provision preempts a State’s effort to take any portion of a Medicaid recipient’s tort judgment or settlement not “designated as payments for medical care.” Id. at 284.

The language of 409.902(1), which speaks in terms of full recovery, and the Ahlborn opinion appear to be at odds. Because the United States Supreme Court is the final word on this subject matter, which involves the application of federal law — Title XIX of the Social Security Act — the Florida Legislature created an avenue for a Medicaid recipient to file a petition under chapter 120, Florida Statutes, with the Division of Administrative Hearings (“DOAH”) to prove “that Medicaid provided a lesser amount of medical assistance than that asserted by” the Agency for Health Care Administration. § 409.910(17)(b), Fla. Stat.

Eady v. State of Florida, Agency for Health Care Administration (Fla. 1st DCA, Sept. 12, 2019) should be considered the road map for handling Medicaid lien administrative hearings in Florida. Brandon Eady sustained catastrophic injuries in a motor vehicle crash. Florida’s Medicaid program paid $177,747.91 for his medical care. Eady later entered into confidential settlements with various at-fault parties totaling $1,000,000. He filed a petition under § 409.910(17)(b), Fla. Stat. to reduce the Medicaid lien.

October 8, 2019

Jeffrey P. Gale, P.A. // Obtaining Permanent Total Disability Benefits Under the Longshore & Harbor Workers’ Compensation Act (LHWCA)

by Jeffrey P. Gale, P.A.

“Disability” under the Longshore and Harbor Workers’ Compensation Act (LHWCA) means “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment * * *.” § 902(10).

The big disability compensation prize under the The Act is Permanent Total Disability. The benefit is described in Section 908(a) of the Act as follows:

In case of total disability adjudged to be permanent 66 2/3 per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability.

September 29, 2019

Jeffrey P. Gale, P.A. // Family Immunity in Florida Personal Injury Negligence Cases

by Jeffrey P. Gale, P.A.

Limiting situations that could give rise to (1) disruption of family harmony and (2) fraud or collusion between family members is a legitimate public policy. In this vein, Florida once barred all personal injury negligence actions by one family member against another. In Orefice v. Albert, 237 So.2d 142 (Fla. 1970), a case in which the mother of a child killed in an airplane crash sought recovery in both her and her son’s names from the boy’s father, the Florida Supreme Court stated:

It is established policy, evidenced by many decisions, that suits will not be allowed in this state among members of a family unit for tort. Spouses may not sue each other, nor children their parents. The purpose of this policy is to protect family harmony and resources.

237 So.2d at 145.

Parental/child immunity has its origins in an 1891 Mississippi case which based its decision on the importance of “peace of society … [and] the repose of families.” Hewllette v. George, 68 Miss. 703, 711, 9 So. 885, 887 (1891). Florida adopted the rule and recognized it in several cases. Orefice v. Albert, 237 So.2d 142 (Fla. 1970); May v. Palm Beach Chemical Co., 77 So.2d 468 (Fla. 1955).

Parental/child immunity was abrogated by the Florida Supreme Court in Ard v. Ard, 414 So.2d 1066 (Fla.1982).

Ard involved a lawsuit brought by a minor child seeking compensation for serious personal injuries caused by the negligence of his mother. The defendants raised the doctrine of parental immunity as a defense. On both conflict and great public importance jurisdiction, the case ended up in the Florida Supreme Court, which decided as follows:

While we reaffirm our adherence to parental/family immunity, we hold that, in a tort action for negligence arising from an accident and brought by an unemancipated minor child against a parent, the doctrine of parental immunity is waived to the extent of the parent’s available liability insurance coverage. If the parent is without liability insurance, or if the policy contains an exclusion clause for household or family members, then parental immunity is not waived and the child cannot sue the parent. (Bold added for emphasis.)

The doctrine of interspousal tort immunity barring actions by one spouse against another has a long and established history in Florida law. See Corren v. Corren, 47 So.2d 774, (Fla. 1950). The doctrine has its origins in the fiction that the marriage of two people creates a unified entity of one singular person. Corren, supra. The reasoning was that a person or entity cannot sue itself. Sturiano v. Brooks, 523 So. 2d 1126, 1128 (Fla. 1988).

September 22, 2019

Jeffrey P. Gale, P.A. // Give Thoughtful Consideration Before Undertaking Dual Representation of Both Driver and Passenger(s) in Motor Vehicle Accident Cases

by Jeffrey P. Gale, P.A.

Not infrequently, both the driver and passenger(s) involved in a motor vehicle crash will consider hiring the same personal injury lawyer. Because of conflict of interest concerns, lawyers must be exceedingly cautious in taking on dual representation in these circumstances. The concerns arise in various fact situations, including the following:

1. The driver and passenger prospective clients are both injured and liability is

clearly with the third party driver. There are no claims of comparative negligence

or fault against the plaintiff driver.

2. The driver and passenger prospective clients are both injured and liability lies

mostly with the third party driver. However, the third party’s insurance company

is alleging comparative fault by the plaintiff driver.

3. Driver and passenger prospective clients are members of the same family and

both are injured in an auto accident. While the plaintiff driver may have been

partly at fault, the driver was uninsured and has no assets to satisfy an adverse

judgment.

4. The driver and passenger prospective clients are both injured and evidence

shows that the plaintiff driver was definitely at fault as well as the third party

driver of the other vehicle.

5. The driver and passengers, who are members of the same immediate family,

are all injured and the third party tortfeasor is claiming some fault on the part

of the driver. The driver is the wife/mother of the passengers. Her liability policy

has denied coverage for the other family members due to a “family exclusion”

clause in the policy; she has no significant assets. The driver has uninsured/

underinsured motorist coverage.

Regarding multiple representation of clients, the Florida Rules of Professional Conduct, ethics opinions and opinions of Florida courts provide guidance. Whereas the judgment call may be challenging under certain circumstances, one rule is clear: One attorney cannot simultaneously represent both driver and passenger in an auto accident where the passenger is pursuing a claim for negligence against the driver. Dual representation in these circumstances would violate Rule 4-1.7(a). See Florida Bar v. Mastrilli, 614 So.2d 1081 (Fla. 1993). See, also, Robertson v. Wittenmyer, 736 NE 804 (Court of Appeals of Indiana, 2000)(Attorney sanctioned for filing suit against his own client on behalf of another client who was injured in a motor vehicle crash while occupying a vehicle operated by the client who was sued).

September 2, 2019

Jeffrey P. Gale, P.A. // Injured Workers and the Fallacy of the Double Recovery

by Jeffrey P. Gale, P.A.

Despite what some people believe, injured workers who are compensated both under workers’ compensation and the civil legal system for the same accident, do not receive a double recovery, or windfall. Section 440.39(3), Florida Statues, authorizes workers’ compensation carriers to file a lien against the claimant’s recovery in the civil action. The lien attaches to benefits recovered in the civil matter that duplicate those received by the claimant in the workers’ compensation case, typically only medical benefits and wage compensation. (The common law allows damages for pain and suffering, and loss of spousal services, which are not provided for under the workers’ compensation act. The workers’ compensation lien does not attach to these damages.)

Even if the workers’ compensation carrier does not file a notice of lien in any subsequent civil action which would operate as a lien on any judgment in favor of the injured employee, Florida’s collateral source statute would at least prevent a double recovery on the part of the injured employee. See § 768.76(1), Fla. Stat. (2019). Section 768.76 states that “the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources….”

Importantly, § 768.76(1), Fla. Stat. (2019) goes on to say that “there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.” Florida courts have stated that “workers’ compensation benefits are a collateral source” within the meaning of the statute. Am. Mut. Ins. Co. v. Decker, 518 So.2d 315, 317 (Fla. 2d DCA 1987), adopted in Liberty Mut. Ins. Co. v. Chambers, 526 So.2d 66, 67 (Fla.1988).

August 31, 2019

Jeffrey P. Gale, P.A. // Particular Difficulties and Deceits Involving Long Term Disability Insurance

by Jeffrey P. Gale, P.A.

With a sizable portion of our law firm’s practice engaged in the representation of injured workers, we often tangle with issues related to long term disability insurance. LTD is commonly offered by employers to their employees as a fringe benefit. The employer either pays the full premium, a portion thereof, or nothing at all. One advantage of a group plan (employer based) over an individual plan is that the premium is typically lower due to economies of scale. On the other hand, disputes under group plans are more difficult for insureds to prosecute as compared to individual plans, as the former fall under the less consumer friendly federal ERISA law while the latter are governed by more equitable state laws. Group or individual, benefiting from LTD insurance can prove illusory.

An LTD insurance policy is a contract. Its terms control the rights and duties of the parties to the contract. Most LTD policies provide that LTD benefits will be offset against disability payments received from other sources such as workers’ compensation and Social Security Disability (SSD). For example: assume that the LTD policy provides for a $2,000 monthly payment for a qualifying disability. However, if the insured is receiving $500 per week from workers’ compensation or a monthly payment from Social Security Disability (SSD), the $2,000 LTD payment will be reduced by the amount of those payments. Hence, a $500 weekly payment from WC will reduce the LTD carrier’s obligation to zero. Not surprisingly, LTD does not rebate the premium to its insured under this circumstance.

LTD insurance carriers know that a large percentage of disabling injuries are work related. Because the qualifying requirements for workers’ compensation disability benefits and LTD are always similar, injured workers are usually just as likely to qualify for workers’ compensation benefits as they are for LTD benefits. LTD carriers also know that those who meet their qualifying standards can also be expected to qualify for SSD benefits. Only a tiny fraction of LTD policy consumers will not be eligible for one of the other benefits if not both.

August 15, 2019

Jeffrey P. Gale, P.A. // Election of Remedy

by Jeffrey P. Gale, P.A.

Accident victims can sometimes bring a legal claim seeking compensation for their losses. They may even have the option of electing a remedy between personal injury common law and workers’ compensation statutory law. The choice can be consequential.

Personal injury claims are cases at common law. In Florida, recoverable damages in personal injury claims include medical expenses, lost wages, and pain and suffering. In suits at common law, the 7th Amendment to the U.S. Constitution guarantees the right of trial by jury.

Workplace injury cases in Florida against employers can be limited to the statutory remedies outlined in Chapter 440 of the Florida Statutes. Cases are tried before administrative law judges (known as Judges of Compensation Claims, or JCC) and, unlike in personal injury cases, compensation for pain and suffering cannot be awarded.

Election of Remedy is a legal concept concerning:

The liberty of choosing (or the act of choosing) one out of several means afforded by law for the redress of an injury, or one out of several available Forms of Action. An election of remedies arises when one having two coexistent but inconsistent remedies chooses to exercise one, in which she or he loses the right thereafter to exercise the other. The Doctrine provides that if two or more remedies exist that are repugnant and inconsistent with one another, a party will be bound if he or she has chosen one of them. The Free Dictionary.

The doctrine “… is an application of the doctrine of estoppel and provides that the one electing should not later be permitted to avail himself of an inconsistent course.” Williams v. Robineau, 124 Fla. 422, 168 So. 644, 646 (1936).

While there is plenty of case law on the subject, it is still not entirely clear what constitutes an election sufficient to lock in the choice. This uncertainty was acknowledged by the Florida Supreme Court in Jones v. Martin Electronics, Inc., 932 So.2d 1100 (Fla., 2006): “[I]n the context of workers’ compensation, 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 @ 1105.

July 26, 2019

Jeffrey P. Gale, P.A. // Pre-Settlement Considerations for Claimants/Plaintiffs Receiving Both Medicare and Medicaid Benefits

by Jeffrey P. Gale, P.A.

Settling an injury case is not as easy as it once was. In the old days, cases would be settled with little or no consideration being given to satisfying liens and protecting an injured person’s right to receive post-settlement Medicare and Medicaid benefits. Rather than attorney neglect, much of this was due to weak and sometimes non-existent lien rights and undeveloped requirements for protecting the interests of Medicare and Medicaid. Times have changed. This blog will touch on the interplay between Medicare Set-Asides (MSA) and Medicaid’s means-tested Supplemental Security Income (SSI) benefits.

According to the Centers for Medicare & Medicaid Services (CMS), a “Medicare Set-Aside Arrangement (WCMSA) is a financial agreement that allocates a portion of a … settlement to pay for future medical services related to the … injury, illness, or disease. These funds must be depleted before Medicare will pay for treatment related to the … injury, illness, or disease.” While MSAs have been part of the workers’ compensation landscape for many years, it is unclear, despite years of discussion, whether they are required in personal injury cases. In cases involving serious injuries where the plaintiff will most definitely require future medical care, caution dictates considering, at least, the creation of an MSA.

Supplemental Security Income (SSI) “is a Federal income supplement program funded by general tax revenues (not Social Security taxes):

It is designed to help aged, blind, and disabled people, who have little or no income; and
It provides cash to meet basic needs for food, clothing, and shelter.”

The more countable income you have, the less the SSI payment will be. Moreover, if your countable income is over the allowable limit, you cannot receive SSI benefits at all.

July 24, 2019

Jeffrey P. Gale, P.A. // Post-Settlement/Post-Judgment Payment of Medical Expenses by Health Insurance

by Jeffrey P. Gale, P.A.

Once a case involving personal injuries has been settled or resolved by the payment of a final judgment, the injured party will receive no more money from the closed matter to cover any later incurred expenses such as those for medical care. This rule applies in both civil and workers’ compensation cases.

The question often arises as to whether health insurance will cover post-resolution incurred expenses. The answer depends on the type of coverage available. Medicare, for example, will not cover expenses for which a person has been compensated in an underlying personal injury or workers’ compensation case unless a pre-determined portion of the compensation is first exhausted. The amount that must be exhausted is set forth in what is known as a Medicare Set Aside Arrangement. In contrast, medical benefits available through the Veterans Administration are not subject to being offset against funds recovered in the underlying accident case. These are the two extremes. Health insurance benefits provided through ERISA plans and the Affordable Care Act fall somewhere in between.

A majority, albeit dwindling, number of Americans receive group health insurance through their employers. (The trend is for employers to reduce employee work hours to avoid having to provide group health insurance.) The rights and duties of insureds and insurers under these plans is governed by a federal law known as ERISA (Employee Retirement Income Security Act), see 29 U.S.C. §§ 1001-1461. Many other individuals are covered by individual insurance policies mandated by the Affordable Care Act (ACA), also known as “Obamacare.” Even though ERISA plans must meet certain ACA requirements, in various other important respects the plans are less consumer friendly than individual ACA policies, which are governed by Florida law for Florida issued policies. Two of the most significant differences involve challenging the denial of claims and carrier subrogation rights.