Florida Injury Attorney Blawg

August 3, 2018

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

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.

July 30, 2018

Jeffrey P. Gale, P.A. // Improper to Use Inference Upon Inference to Show That Alcohol Caused Accident

by Jeffrey P. Gale, P.A.

Our firm is presently involved in a personal injury action on behalf of a truck driver who sustained serious injuries when he was struck by a motor vehicle on the side of the northbound lanes of I-95, in an area of the highway known as a gore, while an employee of a roadside assistance company attempted to replace a blown tire on the chassis our client was hauling with his tractor. We have sued the roadside assistance company for failing to display proper warning lights and for undertaking the assistance in a dangerous location. (This photograph shows the assistance vehicle sent to the scene and its location at the time of the crash.) The Defendant has asserted two affirmative defenses in an effort to apportion fault to a non-party. Our co-counsel, superb trial lawyer Robert Tilghman, has prepared a motion for partial summary judgment on the two affirmative defenses. (Reproduced in this blog are portions of the motion. The names of the parties and the non-party have been removed.)

The non-party was the driver of a northbound vehicle that struck our client after first striking the left rear of the vehicle sent to perform the roadside assistance. The parties will never know what caused his vehicle to enter the gore area as he died after the subject accident before he could give a statement. He told fire rescue that he did not remember what happened and there were no eyewitnesses or physical evidence to explain why, when, or how the vehicle entered the gore or why the driver was unable to avoid striking the repair vehicle. We have been able to formulate upwards of twelve reasonable explanations, some of which would not constitute fault on the non-party driver, for the events leading to the collision.

We anticipate that Defendant intends to argue that the non-party driver consumed alcohol prior to the collision and that it was the effect of alcohol which caused the accident. However, Defendant cannot present admissible evidence of his intoxication or that alcohol was a proximate cause of the collision.

July 20, 2018

Jeffrey P. Gale, P.A. // Where We Stand

by Jeffrey P. Gale, P.A.

July 25, 2018; Facebook

Russia has broken into our home and Trump wants us to be gracious hosts.

July 25, 2018; Facebook

If honest elections, a free press, and civil rights aren’t your priorities, what is it about America that you value?

July 22, 2018; Facebook

Trump v. Putin is like a theatrical WWW phony v. an MMA killer. Making matters worse is that the match is rigged.

July 21, 2018; Facebook

Trump knows that his militant base is very stupid (x 100) and that the moneyed interests are selfish pigs willing to go along, and he believes that the combination of both will keep him afloat. A majority of Americans see him for what he is, but don’t have the power now to do anything about it.

I’d rather be powerless than stupid or craven.

July 20, 2018; Facebook

Trump is in free fall and the country is being sucked down in his noxious wake. For more than 20 years he has been the bag man for dirty Russian money. This is how he was able to stay afloat when no U.S. bank would touch him with a 10 foot pole, and it is why he doesn’t dare disclose his tax returns and is deathly afraid of Putin (who has all of the dirt on him). This is not revelatory news.

Trump knows his exposure and is becoming unhinged before our eyes. On one side, he is being pursued by the most imposing team of lawyers and investigators ever assembled led by the preeminent law enforcement officer in American history. On the other side he is being squeezed by Putin, the cold-hearted, steely-eyed keeper of his deepest and darkest secrets.

The gig is almost up and Trump knows it. Being a sleezebag for an entire lifetime has its consequences. At some point, the forces of nature catch up to you. In the immortal words of Heavyweight Champion Joe Louis, The Brown Bomber, “You can run, but you can’t hide.”

Trump, we know where you are and we’re coming to get you.

Sweet dreams, Meathead.

July 15, 2018

Jeffrey P. Gale, P.A. // Florida Supreme Court Clarifies Medicaid Lien Law

by Jeffrey P. Gale, P.A.

In Giraldo v. AHCA, the Florida Supreme Court addressed the vexing question regarding whether the Agency for Health Care Administration (AHCA) may lien the future medical expenses portion of a Florida Medicaid recipient’s tort recovery. In an opinion favoring individuals who have sustained personal injuries through the fault of third parties, the court held that federal law allows AHCA to lien only the past medical expenses portion of a Medicaid beneficiary’s third-party tort recovery to satisfy its Medicaid lien.

Medicaid will sometimes pay the medical expenses of a Medicaid recipient who has been harmed through the negligence of a third party. In some cases, the payments are extremely sizeable. (In Giraldo, for example, Florida’s Medicaid program (administered by AHCA) paid $322,222.27 for the victim’s medical care.) Where the victim is compensated by the third party for his or her damages, either through a settlement or a court judgment, Medicaid may recoup from the victim some or all of its payments. The recovery formula is set forth in section 440.910(11)(f), Florida Statutes. Giraldo addressed Medicaid’s lien rights.

July 4, 2018

Jeffrey P. Gale, P.A. // Neglecting Duty Prevents Application of Florida Workers’ Compensation Statute of Limitations

by Jeffrey P. Gale, P.A.

Every type of legal matter has a time bar to when legal proceedings can be maintained to address a dispute. The time bar is known as the statute of limitations. The Florida workers’ compensation statute of limitations is contained in section 440.19, Florida Statutes.

Especially in the area of workers’ compensation, the courts have formulated ways of overcoming the SOL defense. One avenue is by demonstrating — it is the claimant’s burden — that the employer/carrier (E/C) have neglected or shirked their responsibilities and obligations to notify claimant[s] of possible benefits under the Workers’ Compensation Act. Gauthier v. Florida International University, 38 So.3d 221 (Fla. 1st DCA 2010). The result of making the proper proof is that the E/C will be estopped from relying on a statute of limitations defense.

In Gauthier, the claimant sustained a serious eye injury. Despite its knowledge of claimant’s severe ocular injury, E/C never pursued a date of maximum medical improvement (MMI) — section 440.02(10), Florida Statutes — or a permanent impairment rating (PIR) — 440.02(22) — thus avoiding the payment of permanent impairment benefits — 440.15(3) — which, if paid, would have tolled the statute of limitations.

June 27, 2018

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Responsibility Without Compensability

by Jeffrey P. Gale, P.A.

For the most part, workers’ compensation insurance companies limit their payment of medical expenses to conditions caused by work-related accidents. In some instances, however, carriers may be required to cover expenses for unrelated conditions. The primary instances are when (1) diagnostic testing is required to determine the compensability of an injury, (2) an unrelated condition presents a hindrance to the recovery of a compensable medical condition, and (3) controlling an unrelated condition, like high blood pressure, is necessary to allow the claimant to undergo a related procedure, like surgery.

Both principles are grounded on section 440.13(1)(k), Florida Statutes, which provides:

“Medically necessary” or “medical necessity” means any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature.

Treatment to determine whether an injury is compensable

Laxner v. Target Corporation, 41 So.3d 396 (Fla. 1st DCA 2010). To establish entitlement to medical treatment, care, and modalities that have an investigatory or diagnostic purpose, workers’ compensation law does not require claimant to prove the major contributing cause of the need for treatment or diagnostic testing is her workplace accident or injury; rather, the award of such medical care is dependent on a finding that the evaluation is reasonably required to determine the cause and extent of claimant’s injuries.

June 3, 2018

Jeffrey P. Gale, P.A. // Burden of Proof Regarding Employee Earnings Report (DWC-19) in Receipt of Workers’ Compensation Temporary Partial Disability Benefits (TPD)

by Jeffrey P. Gale, P.A.

By demonstrating that particular physical restrictions are responsible for lost wages or lack of employment, an employee with functional limitations less than a total disability may be eligible for temporary partial disability benefits (TPD) pursuant to section 440.15(4), Florida Statutes.

The claims-handling entity may impose a further burden by requiring the injured employee to complete, sign, and return Form DFS-F2-DWC-19 within 21 days after receiving it to report all earnings of any nature, including all social security benefits.

In Perdue v. Sebring Marine Ind. Inc., 82 So.3d 816 (Fla. 1st DCA 2011), reh. den. Sept. 3, 2011, the Judge of Compensation Claims (JCC) denied TPD benefits to the claimant on the basis that the injured employee did not submit a DWC-19 Employee Earnings Report in the claim. However, there was no evidence that the employer/carrier had provided the forms to the claimant. The First DCA reversed the JCC’s ruling, holding that the employer/carrier has the burden to prove it sent the forms to the claimant.

FLORIDA INJURY ATTORNEY BLAWG