Florida Injury Attorney Blawg

November 20, 2016

Jeffrey P. Gale, P.A. // Post-Election Popular Vote vs. Electoral College Griping Off Base

Complaining now about the 2016 presidential election outcome based on the popular vote vs the Electoral College results is nonsense. It’s like a football team that was outscored arguing that it should be declared the winner because it controlled the clock and gained more yards than the other team. Them ain’t the rules.

For example, just this past Saturday my Florida Gators beat the LSU Tigers by the score of 16-10, even though LSU won the time of possession and yards gained statistics. I’ll take the W over the statistical victory.

November 20, 2016

Jeffrey P. Gale, P.A. // Keeping Trump’s Excesses in Check

by Jeffrey P. Gale, P.A.

We are all in deep trouble with Trump, right-wingers included, but Congress, especially Republicans, can limit the damage by insisting on decency, honesty and fair-dealing from his administration. This will require principle and backbone, two characteristics in short supply in Republican leaders like Mitch McConnell and Paul Ryan.

It took resolute and honorable Republicans to bring down Richard Nixon. That was a long time ago, during a period when civil discourse and cooperation between the parties was at a much higher level than it is today.

What’s especially frightening is that compared to Trump, Nixon was a decent fellow.

October 26, 2016

Jeffrey P. Gale, P.A. // Winning Florida Workers’ Compensation Temporary Disability Benefits Without Supporting Medical Testimony

by Jeffrey P. Gale, P.A.

To receive wage loss benefits following an accident, injured workers must demonstrate a connection between the wage loss and their injuries. Wyeth/Pharma Field Sales v. Toscano, 40 So. 3d 795 (Fla. 1st DCA 2010). The most common way of accomplishing this is through medical testimony. Many people believe that it is the only way. It’s not.

Florida’s workers’ compensation system provides for two types of pre-maximum medical improvement indemnity compensation benefits, temporary partial (TP; section 440.15(4) Florida Statutes) and temporary total (TT; 440.15(2)). TP is for employees able to work with restrictions, TT is for employees unable to work.

The workers’ compensation insurance companies get to pick the doctors. Many of these doctors tend to favor the insurance companies in their opinions. One way they help is by limiting restrictions or assigning none at all.

Form DWC-25 is a form completed by the workers’ compensation doctors. Sections 21-23 address work restrictions. Workers’ compensation insurance companies typically refuse to pay indemnity benefits to injured employees who refuse or quit a job that is available within the DWC-25 restrictions.

October 3, 2016

Jeffrey P. Gale, P.A. // Shame on the Miami Herald

by Jeffrey P. Gale, P.A.

Shame on the Miami Herald!

On September 30, 2016 (print) and October 4, 2016 (online), the Miami Herald published an editorial, written by Mark Wilson, president and CEO of the Florida Chamber of Commerce, titled Workers’ comp rate hike will hurt Florida businesses.

Mr. Wilson contends that two recent Florida Supreme Court decisions will cause workers’ compensation insurance premiums to rise, “all for the benefit of billboard trial lawyers.” While it is debatable whether rates will or should increase, there is no question that the decisions were just and proper. Moreover, the true and deserved beneficiaries of the court decisions are injured workers, not “billboard trial lawyers.” Positive results have already been experienced on the ground.

The first case mentioned by Mr. Wilson, Castellanos v. Next Door Company, et al. (Fla., 2016), was decided on April 28, 2016. It involved a challenge to a workers’ compensation statute that made it exceedingly difficult for injured workers to obtain adequate legal representation.

Mr. Wilson fails to present any Castellanos case facts, attempting, instead, to sway unknowing readers with inflammatory and broad brush statements. He does not even give the full case name to make it easier for curious readers to find and read the decision to reach informed conclusions.

Shame on him. Shame on the Miami Herald for providing the forum.

September 28, 2016

Jeffrey P. Gale, P.A. // Quirk in Law Puts Private Insurance Companies Ahead of Taxpayers

by Jeffrey P. Gale, P.A.

Some catastrophically injured Florida workers qualify for both workers’ compensation permanent total disability benefits (PTD) (F.S. 440.15(1)) and taxpayer funded Social Security Disability (SSD) benefits (42 U.S.C. s. 423).

The compensation rate for PTD is 66-2/3% of the claimant’s average weekly wage (AWW) (440.14) payable bi-weekly until age 75. SSD is paid monthly until converting to Social Security Retirement at full retirement age (age 66 if born after 1942, 67 if born after 1960).

With the exception of government employees, PTD is paid by the private employer or its workers’ compensation insurance company. SSD, a Federal program, is paid from taxpayer dollars.
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September 18, 2016

Jeffrey P. Gale, P.A. // Presumption of Fault in Florida Rear-End Motor Vehicle Crash Cases

by Jeffrey P. Gale, P.A.

Because the vast majority of rear-end crashes are caused by the trailing driver, Florida decisional law places a presumption of fault on that driver. See generally Eppler v. Tarmac America, Inc., 752 So.2d 592, 594 (Fla. 2000) (explaining origins of rear-end presumption). However, the presumption is a rebuttable presumption. What this means is that the trailing driver is allowed the opportunity to present evidence of sufficient value to overcome the presumption, but failing this, the beneficiary of the presumption is entitled to judgment as a matter of law. Birge v. Charron, 107 So.3d 350 (Fla. 2012) and Bodiford v. Rollins, So. 3d , 40 FLW D1844 (Fla. 5th DCA 8-7-2015) (as there was no evidence showing that plaintiff Rollins breached any legal duty or failed to use reasonable care, the trial court’s denial of plaintiff Rollins’ motion for judgment notwithstanding the verdict was reversed.).

The “rear-end presumption has never been recognized as anything more than an evidentiary tool that facilitates a particular type of negligence case by filling an evidentiary void where the evidence is such that there is no relevant jury question on the issue of liability and causation,” Birge @ 361. It was “constructed by the law to give particular effect to a certain group of facts in the absence of further evidence.” Gulle v. Boggs, 174 So.2d 26, 28 (Fla.1965) and Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 572-73 (Fla.2001) (same).

In Birge, the passenger of a trailing motorcycle that flipped over when its driver attempted to avoid a rear-end collision, sued the driver of the front vehicle for negligence. In spite of divergent fault evidence concerning the circumstances of the crash, the trial court entered summary judgment for the defendant based on the rear-end presumption. The trial judge ruled, as a matter of law, that the evidence did not rebut the presumption of negligence against the driver of the trailing motorcycle.

September 17, 2016

Jeffrey P. Gale, P.A. // Florida Premises Liability Law — Tripping on Tree Roots

by Jeffrey P. Gale, P.A.

Everyone has crossed through some sort of landscaped area to get from one public place to another. While few fall and hurt themselves, some are less fortunate. Florida courts have addressed the issue of fault for such accidents. Should the landowner be held accountable? Or is the standard, cross at your own peril?

The answer is, it depends.

One of the leading cases on the subject is Wolf v. Sam’s East, Inc., 132 So.3d 305 (Fla. 4th DCA 2014). While the court ruled for the property owner, its discussion shows how the outcome can go the other way under different circumstances.

“Generally, a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of latent or concealed dangers which are or should be known to the owner and which are unknown to the invitee and cannot be discovered through the exercise of due care.” Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577 (Fla. 5th DCA 2005).

September 5, 2016

Jeffrey P. Gale, P.A. // Employee’s Duty Under Florida’s Workers’ Compensation Law to Report Accident

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation statute of limitations, Section 440.19 Florida Statutes, is not the only time bar to bringing a workers’ compensation claim. Section 440.185(1) time bars a claim not reported to the employer “within 30 days after the date of or initial manifestation of the injury.” The statute contains four exceptions:

(a) The employer or the employer’s agent had actual knowledge of the injury;

(b) The cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;

(c) The employer did not put its employees on notice of the requirements of this section by posting notice pursuant to s. 440.055; or

(d) Exceptional circumstances, outside the scope of paragraph (a) or paragraph (b) justify such failure.

Notice and Knowledge

Gregory v. Crum Staffing. The First District Court of Appeal ruled on the issues of reporting and actual knowledge. A supervisor witnessed the accident, heard the claimant say “something regarding an injury,” although not specifically about a shoulder injury, and knew he went to a doctor less than 30 days after the accident. The Judge of Compensation Claims (JCC) ruled against the claimant, concluding that the statute required “actual knowledge of the injury to be communicated . . . to the employer within thirty days.” The JCC’s decision was reversed on appeal. The 1st DCA decided that the reporting requirement of 440.185(1) was satisfied, observing that 440.185(1) does not contain an “actual knowledge” provision like the subsection (a) exception. The court did not stop there. It also held that the employer had “actual knowledge of the injury,” explaining as follows:

the notice required to satisfy the knowledge exception to the thirty-day rule need not detail every facet of the injury sustained. Rather, it is sufficient that the employer have notice of an injury. See Alfonso v. MacDinton’s Rest., 515 So. 2d 243 (Fla. 1st DCA 1987); see also Roseboom v. H.T. Constructors, Inc., 527 So. 2d 234 (Fla. 1st DCA 1988); Winter Park Mem’l Hosp. v. Brown, 452 So. 2d 116 (Fla. 1st DCA 1984).

Alfonso v. Mac Dinton’s Restaurant, 515 So.2d 243 (Fla. 1st DCA 1987). Employee slipped and fell on her buttocks. More than five weeks later she reported back pain to her employer for the first time. Later that day she was admitted to the hospital for a back injury. The back claim was denied for late reporting. At trial, one of her employers admitted hearing claimant exclaim from the freezer in which the injury occurred that she had hit her arm on the freezer’s rack. The employer further indicated that he asked claimant if she was all right and that she replied she thought so. The DCA held in favor of the claimant.

September 3, 2016

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Statute of Limitations in Repetitive Trauma Cases

by Jeffrey P. Gale, P.A.

The key component of every statute of limitations is the triggering event which starts the running of the SOL clock. In Florida workers’ compensation cases, the event is “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.” Section 440.19(1) Florida Statutes. The SOL is two years from this event. (Chapter 95 of the Florida’s statutes addresses the statute of limitations applicable in other types of cases.)

While most workplace injuries arise from acute traumatic events, like falling from a scaffold, some develop over a spread of time from the cumulative effects of repetitive physical labor. A representative example of this is demonstrated by one of our recent cases involving a UPS driver who developed a bad back from lifting and moving boxes for sixteen years.

August 28, 2016

Jeffrey P. Gale, P.A. // Doctor Selection Comparison Between the Longshore and Harbor Workers’ Act and Florida’s Workers’ Compensation Act

by Jeffrey P. Gale, P.A.

Each Act covers a different set of workers. With exceptions, the Longshore and Harbor Workers’ Compensation Act, which is Federal law, applies to “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker….” Section 902(3). One of the most important exceptions is for “a master or member of a crew of any vessel.” Section 902(3)(G). The rights of these individuals are governed by the Jones Act and Admiralty Law.

Florida’s workers’ compensation laws are contained in Chapter 440 of Florida’s Statutes. They govern the rights of almost every other type of worker employed in the state. Federal employees do not fall under Florida’s workers’ compensation system.

While the LHWCA and Florida’s Chapter 440 are strikingly similar in many respects, one significant difference involves physician selection. Under Section 907(b) of the LHWCA, “[t]he employee shall have the right to choose an attending physician….” In contrast, the employer/carrier selects the treating physicians in Florida’s system. Section 440.13 Florida Statutes.

FLORIDA INJURY ATTORNEY BLAWG