Florida Injury Attorney Blawg

November 5, 2018

Jeffrey P. Gale, P.A. // Workers’ Compensation Temporary Partial Disability Benefits Following Relocation

Per section 440.15(4), Florida Statues, Temporary Partial Disability (TPD) benefits are due “if the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work … or an employee returns to work with the restrictions resulting from the accident and is earning wages less than 80 percent of the preinjury average weekly wage.” Does this provision allow an injured worker who has left a job to relocate to a different city or state, to receive TPD? The answer depends on the motivation of the worker for leaving the job.

In Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173 (Fla. 1st DCA 2003), the Claimant left a modified duty job following an industrial accident and relocated to Pensacola because he and his wife were having marital problems and he thought he needed “to be with his family, be back home with [his] mom.” (His wife confirmed this testimony.) While in Pensacola he tried without success, due to his industrial injuries, to maintain a job. Two months later he returned to the job he had left. He also filed a claim for workers’ compensation TPD benefits for the period of time he was in Pensacola.

The workers’ compensation carrier denied the claim for TPD, contending that Claimant voluntarily limited his income. The Judge of Compensation Claims (JCC) agreed, finding that Claimant’s loss of earnings after his employment with the city of Pensacola and before returning to work was “not the result of an injury related disability, but rather the result of his voluntary hiatus from the job he ultimately returned to.” Claimant appealed the JCC’s decision.

November 1, 2018

Jeffrey P. Gale, P.A. // Entitlement to Florida Workers’ Compensation Lost Wages Following Job Termination

by Jeffrey P. Gale, P.A.

It is not uncommon for injured workers to be terminated from their jobs post-accident. There was a time when Florida law required employers to make every effort within reason to reemploy their injured workers. While that admirable public policy was scrapped some 15 years ago, section 440.205, Florida Statutes does prohibit employers from terminating employees hurt on the job for claiming workers’ compensation benefits. However, as a firm that handles wrongful termination cases, we know that proving one from the other can be difficult. Compounding the difficulty is the element of good-cause firings, i.e., justified firings based on conduct, such as excessive absences.

Per section 440.15(4) Florida Statutes (2018), temporary partial disability (TPD) wage loss benefits are due “if the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work … or an employee returns to work with the restrictions resulting from the accident and is earning wages less than 80 percent of the preinjury average weekly wage.” This language has allowed some employees terminated for cause to be entitled to TPD benefits. (Caveat: Not all good-cause terminations are treated alike. Read this blog: Jeffrey P. Gale, P.A. // Florida Workers’ Compensation 440.15(4)(e) Termination for Misconduct Law Not Well Understood.)

One of the leading cases on the subject is Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173 (Fla. 1st DCA 2003). The Claimant injured his back on the job in a compensable accident — meaning, an accident accepted by the Employer/Carrier. He returned to work for the Employer, in a modified-duty status to conform to the authorized doctor’s recommendations, for approximately three weeks after the accident until the Employer terminated him for excessive absenteeism (most of which occurred before the accident). For nine of the next eleven months he looked for work but remained unemployed. He also continued under the care of workers’ compensation doctors, who imposed work restrictions.

October 11, 2018

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation SOL Tolling, Impairment Rating & Guides

by Jeffrey P. Gale, P.A.

Our firm recently settled a hard fought workers’ compensation case arising from a 1995 industrial accident. We received the initial call from the Claimant in March of this year (2018). He explained that he had not received medical care for his injuries, tibia and fibula fractures, since three months post surgery in 1995, but had for the past ten years been experiencing progressively worsening pain for which he now wished to be examined by a doctor. He claimed to be unaware of the Florida workers’ compensation system’s two year statute of limitations (SOL).

We accepted the case and proceeded to undertake discovery on four critical issues, the answers to which would decide whether or not the carrier would be estopped from relying on the statute of limitations defense.

Did the workers’ compensation carrier send the claimant the section 440.185(4), Florida Statutes informational brochure which sets forth an explanation of his rights, benefits, and procedures for obtaining benefits and assistance under the Florida Workers’ Compensation Law?
If not, did the claimant otherwise gain knowledge of these rights, say, for example, from a lawyer or even a friend?
Did the carrier obtain a date of MMI or a permanent impairment rating from the medical provider it authorized and pay the impairment benefits?
If not, was the claimant otherwise aware of his entitlement to impairment benefits?

In 1995, as today, carriers were instructed by section 440.185(4) to inform claimants of their rights under the workers’ compensation law. While a failure to do this could toll the SOL — i.e., keep it from running — it is not an absolute. The workers’ compensation judge (JCC) is charged with determining “whether the claimant lacked actual knowledge of his rights under the workers’ compensation law, and, if so, whether the absence of such knowledge was the cause of the claimant’s failure to obtain the requested care within the limitation period.” Fontanills v. Hillsborough County School Board, 913 So.2d 28, 30 (Fla. 1st DCA 2005).

September 23, 2018

Jeffrey P. Gale, P.A. // Non-Delegable Duty in Florida Personal Injury Cases

by Jeffrey P. Gale, P.A.

We have pending on appeal before the Third District Court of Appeal the question whether a homeowner’s association is liable under the non-delegable duty doctrine for the negligence of a third party. The association undertook the reconstruction of a boat dock by hiring a construction company. The construction company created a dangerous condition. Neither the association, which controlled the property, nor the construction company took adequate measures to protect residents and guests from injury. While attending a party as an invited guest at one of the townhouses, our client sustained serious injuries because of the dangerous condition. The jury found the townhouse owner partially at fault for failing to warn our client of the dangerous condition, which was approximately 100 feet from the back porch of the townhouse. The trial court refused to apply the non-delegable duty doctrine to impose liability on the homeowner’s association liable for the percentage of fault the jury attributed to the townhouse owner.

While there are no Florida cases directly on point, we did find some out of state and federal cases that, while not exactly on point either, appear to be instructive on the issue. The following cases stand for the proposition that someone with a non-delegable duty cannot escape liability by relying on others to fulfill the duty, and not just independent contractors. Two of those cases, Whitehead v Food Max and Tolman v Johnson are premises liability cases, but are not directly on point. The others are product liability cases where it is the duty to warn that is non-delegable.

Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265 (5th Cir, 1998). This case is a negligent security case where a mother and her daughter were abducted from a Kmart parking lot, robbed and sexually assaulted. The Circuit Court recognized that Mississippi imposed a duty upon business owners to maintain the premises in a reasonably secure or safe condition, including the protection of patrons from wrongful acts of third parties. In challenging the verdict/judgment in favor of the plaintiffs, Kmart argued the sufficiency of the evidence on foreseeability and challenged the propriety of jury instructions. In particular, Kmart complained about a jury instruction that said Kmart could not rely upon law enforcement agencies to discharge its nondelegable duty to keep its store and parking lot in a reasonably safe and secure condition. The Circuit Court pointed out that another instruction given to the jury stated that business owners are not obligated to hire a security guard or take other precautions against crime unless ordinary police protection is inadequate and the crime was reasonably foreseeable. The court did not go into detail about the nature of a nondelegable duty or how far it extends. It does not appear that either party argued that the police were negligent and the court did not address the potential liability for any negligence on the part of the police.

August 16, 2018

Jeffrey P. Gale, P.A. // Issues Related to Positive Alcohol and Drug Test Results in Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

Employees testing positive for alcohol or drugs in their system at the time of injury face an uphill battle to recover workers’ compensation benefits. Under subsection 440.09(3), Florida Statutes (2018), compensation is not payable if the injury was occasioned primarily by the intoxication of the employee. If the employer has reason to suspect that the injury was occasioned primarily by the intoxication of the employee or by the use of any drug, urine and/or blood testing is authorized. A positive test result may create the presumption “that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.” Section 440.09(7)(b), Florida Statutes (2018). Unless the employee can overcome the presumption, benefits will be denied. Section 440.09(3).

There are two standards for overcoming the presumption. Which one applies depends on whether or not the employer has instituted a drug-free workplace in accordance with Florida Statute 440.102.

“If the employer has implemented a drug-free workplace, this presumption may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury.” Section 440.09(7)(b), Florida Statutes (2018).
“In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury.” Section 440.09(7)(b), Florida Statutes (2018).

Standard number 1 is more difficult for claimants to overcome than number 2. Sometimes, neither applies. In Wright v. DSK Group, 821 So.2d 455 (Fla. 1st DCA 2002), testimony was adduced from witnesses that claimant had ‘”smoked marijuana on the day of his injury.”‘ Relying on this testimony alone, the judge of compensation claims (JCC) applied the presumption and required the claimant to meet standard number 2. The JCC was reversed on appeal, with the court holding that the presumption did not apply and the employer failed to meet its burden that the work-related injury ‘”was occasioned primarily by the … influence of any drugs … not prescribed by a physician.”‘ Section 440.09(3), Fla. Stat. (1999). See generally Temporary Labor Source v. E.H., 765 So.2d 757 (Fla. 1st DCA 2000) (affirming a ruling that the presumption authorized by section 440.09(7)(b) does not arise when confirmation testing did not conform with applicable rules and that, as a result, the employer was required to establish that the injury was caused primarily by the influence of drugs), review denied, 786 So.2d 1189 (Fla.2001). “When the presumption in section 440.09(7)(b) does not apply, employer/carriers must `establish, by the greater weight of the evidence, that the work-related injury was occasioned primarily by the intoxication of the employee.'” See Thomas v. Bircheat, 16 So. 3d 198, 200 (Fla. 1st DCA 2009) (quoting Wright v. DSK Group, 821 So. 2d 455, 456 (Fla. 1st DCA 2002); see also Sterling v. Mike Brown, Inc., 580 So. 2d 832, 835 (Fla. 1st DCA 1991) (affirming JCC’s order finding employee’s injury was primarily caused by his intoxication even without presumption).

August 7, 2018

Jeffrey P. Gale, P.A. // Florida’s Confusing Hospital Lien Law in Personal Injury Cases

by Jeffrey P. Gale, P.A.

Personal injury lawyers have their work cut out for themselves. Besides having to deal with basic case issues of fault and damages, they are expected to resolve the liens held by hospitals operating in Miami-Dade County. (Depending on local laws, the principles addressed here may apply in other Florida counties.) As the hospitals do not compensate the lawyers for this bill collection work, it’s a great deal for them. (It sure beats selling the debt to bill collection agencies for pennies on the dollar.)

The lien is the right of a hospital to be reimbursed for its services from the proceeds of a judgment or settlement paid by the third party responsible for causing the patient’s injuries. This scenario arises in the context of personal injury cases where the injured party is compensated by the at-fault party for damages sustained.

Miami-Dade County’s lien law, Section 25C-2, Miami-Dade County Code, reads as follows:

[hospitals] shall be entitled to a lien for all reasonable charges for hospital care, treatment and maintenance of ill or injured persons upon any and all causes of action, suits, claims, counterclaims and demands . . . and upon all judgments, settlements and settlement agreements rendered or entered into by virtue thereof, on account of illness or injuries giving rise to such causes of action, suits, claims, counterclaims, demands, judgment, settlement or settlement agreement and which necessitated or shall have necessitated such hospital care, treatment and maintenance.

Liability insurance companies have learned to be careful with hospital liens. In Palm Springs Hospital, Inc. v. State Farm Mutual Insurance Company, 218 So.793 (Fla. 3rd DCA 1969), the insurance carrier was sued by the hospital for impairment of lien for failing to satisfy the lien from the settlement proceeds. To avoid this dilemma, some carriers include the hospital’s name on settlement and judgment checks. This is what happened in Marin v. Infinity Insurance Company, (Fla. 3rd DCA 2018) … and it resulted in a court battle.

August 3, 2018

Jeffrey P. Gale, P.A. // Clarifying Meaning of “Authorized Treating Provider” Under Florida Statute 440.13(5)(e)

by Jeffrey P. Gale, P.A.

Florida statute section 440.13(5)(e) limits who may give medical opinions in workers’ compensation trials to “a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider.”

Our office recently accepted a 23 year old workers’ compensation case where the employee has not received any workers’ compensation benefits for 22 years. The workers’ compensation insurance carrier has raised two defenses to the claim: (1) Statute of Limitations and (2) causal relationship between the current complaints (back and leg pain) and the injury suffered in 1995 (a tibial fracture requiring medullary rodding) — see, 440.02(36).

To carry our burden of establishing the necessary causal connection (to defeat defense #2), medical testimony must be presented. The original surgeon, who was then authorized by the workers’ compensation carrier, is still practicing medicine in Miami-Dade County. Our plan is to have him evaluate the claimant to give his opinion on the issue.

The employer/carrier (E/C) claims that the doctor is no longer “an authorized treating provider,” precluding him from being qualified to give the key opinion testimony. We believe that E/C is wrong.

August 2, 2018

Jeffrey P. Gale, P.A. // Florida PIP Coverage for Foreign Country Medical Care

by Jeffrey P. Gale, P.A.

Personal Injury Protection (PIP) is a type of insurance coverage that is mandatory on operational motor vehicles registered in Florida. See Florida statute 627.736. It provides “protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle.” 627.736(1).

Like most insurance carriers, PIP carriers are practiced at findings legitimate and some less than legitimate reasons for denying coverage, even for medical care provided in Florida. Standard excuses include application misrepresentation and failure to cooperate. Foreign care presents additional hurdles.

The greatest hurdle can be getting the foreign medical provider to even be able to comply with Florida’s unusual billing requirements. Besides having to use forms unique to America’s medical/insurance system — 627.736(5)(d) requires use of CMS/UB forms — the bills have to be provided (on those forms) within thirty-five (35) days of the furnishing of treatment. See, 627.736(5)(c). Florida law also requires the patient to execute a set of forms no foreign provider will have in its possession.

August 1, 2018

Jeffrey P. Gale, P.A. // ADA vis-a-vis Workers’ Compensation Martin v. Carpenter Defense

by Jeffrey P. Gale, P.A.

In 1961, the Florida Supreme Court denied benefits to a workers’ compensation claimant who claimed to hurt her back on the job, for misrepresenting a past medical condition in a job application. See, Martin v. Carpenter, 132 So.2d 400 (Fla. 1961).

For a number of years prior to completing her job application, the claimant had experienced pains in her back. She had on several occasions during those years sought medical treatment for her back condition. When claimant sought employment by the employer she was required to complete a document named “Physical Examination Record” as a condition precedent to employment. The first question on the form asked if the applicant had ever been subject to various diseases and infirmities including “Back injury or Backache.” To this question claimant answered “No.”

The employer/carrier advanced two defenses to the claim for benefits, the second contention being that claimant, because of falsification of the pre-employment questionnaire as to her physical condition, is not entitled to compensation.

July 31, 2018

Jeffrey P. Gale, P.A. // Jurors Not Allowed to Learn the Truth About Insurance Coverage

by Jeffrey P. Gale, P.A.

Trials are supposed to be on the issues of the case without distraction or prejudice from unrelated matters. This principle has given rise in Florida courts to longstanding jurisprudence that the mention of liability insurance in liability cases is strictly prohibited — exception: when the insured party opens the door. The principle, founded on the idea that knowing of insurance will lead jurors to be more liberal — “The long-standing purpose of excluding improper references [to] a defendant’s insurance coverage in civil proceedings is to preclude jurors from affixing liability where none otherwise exists or to arrive at excessive amounts [of damages] through sympathy for the injured party with the thought that the burden would not have to be borne by the defendant.” Melara v. Cicione, 712 So. 2d 429, 431 (Fla. 3d DCA 1998) (citing Carls Mkts., Inc. v. Meyer, 69 So. 2d 789, 793 (Fla. 1953)). — is all well and good except when it bumps against the practical realities of actual trials.

In personal injury cases, the defendant usually has liability insurance. The defense lawyers are paid by the insurance companies as are the experts testifying for the defense side.

FLORIDA INJURY ATTORNEY BLAWG