Florida Injury Attorney Blawg

January 5, 2016

Jeffrey P. Gale, P.A. // Personal Injury Law: Medicare Secondary Payer (“MSP”) Law — Proceed With Caution

The life of a personal injury lawyer is precarious. Serious pitfalls lurk around every corner. One of the scariest dangers is the unknown medical lien. Of this breed, the Medicare lien can have the biggest bite.

In 1965, Congress enacted the Medicare Act by adding Title XVIII to the Social Security Act, with the purpose of establishing a “federally funded health insurance program for the elderly and the disabled.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 506 (1993). It is taxpayer funded.

December 31, 2015

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation — “Emergency Services and Care”

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system is stacked against injured workers in every way imaginable. It more closely resembles what would be expected in Vladamir Putin’s Russia.

An especially egregious arrangement is the one which allows employers and their workers’ compensation insurance carriers to hand-select the injured worker’s treating doctors. See Section 440.13(2) Florida Statutes. Not surprisingly, E/Cs select the same doctors again and again. The doctors know what is expected of them and deliver. The money is good and steady, so there won’t be any biting of the hand, so to speak, from this cadre of medical providers. To make matters worse, the law allows the E/C and their representatives to engage in ex-parte communications with treating doctors, see Section 440.13(4)(c) Florida Statutes, and “[n]o medical opinion other than the opinion of a medical advisor …, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.” Section 440.15(5)(e) Florida Statutes.

What all of this amounts to is that injured workers mostly have little control over the outcome of their medical care and work status. The doctor’s word is gold, even when the doctor is in E/C’s pocket.

December 22, 2015

Jeffrey P. Gale, P.A. // Florida Car Crash Law — Permanency Before Bad Faith

by Jeffrey P. Gale, P.A.

Florida Statute §627.737(2) provides that a plaintiff may recover tort damages for pain, suffering, mental anguish, and inconvenience because of injury arising out of the use of a motor vehicle only if that injury or disease consists in whole, or in part of: (a) significant and permanent loss of an important bodily function; (b) permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement; (c) significant and permanent scarring disfigurement; or (d) death.* A plaintiff failing to meet any of these thresholds may recover only economic damages, such as medical expenses or lost wages

Florida law allows lawsuits against insurers whose denial of meritorious claims is in bad faith. Two types of bad faith claims are recognized: Common law, in the third party context only, and statutory (§625.155 Florida Statutes). Reasonable diligence and ordinary care are material in determining bad faith. See Campbell v. Gov’t Employees Ins. Co., 306 So.2d 525, 530-31 (Fla.1974).

December 20, 2015

Jeffrey P. Gale, P.A. // Florida Motor Vehicle Crash Law — Rear End Presumption

by Jeffrey P. Gale, P.A.

Regarding recovery based on fault, present-day Florida tort law is governed by the standard established by the Florida Supreme Court in Hoffman v. Jones, 280 So.2d 431 (Fla., 1973). Hoffman replaced Florida’s contributory negligence rule (West v. Caterpillar Tractor Co., Inc., 336 So.2d 80, 90 (Fla.1976): the “gist of the doctrine of contributory negligence is that the person injured should not recover when it appears that the injury would have been avoided if the injured person had exercised reasonable care”) with a system of tort recovery based on a “pure form” of comparative negligence:

“If plaintiff and defendant are both at fault, the former may recover, but the amount of his recovery may be only such proportion of the entire damages plaintiff sustained as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant.” Hoffman, 280 So.2d at 438.

Following the opinion in Hoffman, the Florida Legislature in 1986 codified the Court’s adoption of a system of comparative negligence, and its concomitant abolishment of the rule of contributory negligence, by enacting section 768.81 Florida Statutes (2015 version).

December 19, 2015

Jeffrey P. Gale, P.A. // Florida Wrongful Death Cases – Do Not Ignore Medical Expenses

by Jeffrey P. Gale, P.A.

We have blogged at length regarding the decision-making role of estate Personal Representatives with regard to the allocation of monetary proceeds recovered from at-fault parties and under/uninsured motorist insurance. Where the amount recovered is less than the full measure of damages, disputes often arise between creditors and the decedent’s survivors over the PR’s allocation decisions. When those disputes cannot be resolved by agreement, the courts must decide. While Florida’s Wrongful Death Act does not articulate preferences, our experience shows that courts tend to side with survivors in close cases.

In re Estate of Wiggins, 720 So. 2d 523 (Fla. 4th DCA 1999) is the seminal allocation case. It involved six adult surviving children and various creditors (owed a total of $26,000), including Indian River Memorial Hospital, vying over a $100,000 settlement. The matter was forced to trial, where the trial court agreed with the PR’s allocation which left creditors with nothing. The lower court’s ruling was upheld on appeal.

November 26, 2015

Jeffrey P. Gale, P.A. // Proving Workers’ Compensation PTD in Florida

by Jeffrey P. Gale, P.A.

PTD, the acronym for Permanent Total Disability, is the only post-MMI (maximum medical improvement; § 440.02(10) Florida Statutes) workers’ compensation wage loss benefit available to Florida’s injured workers. A Claimant has four ways of qualifying for PTD.

The first way is by proving at least one of the injuries listed in § 440.15(1)(b) (2015). Doing so establishes a rebuttable presumption of PTD. (The burden is on the employee to prove the injury.) Since the presumption is rebuttable, the employer or carrier can overcome the PTD presumption by establishing that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence.

November 11, 2015

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Backpay for Undocumented Aliens

by Jeffrey P. Gale, P.A.

The 1986 Immigration Reform and Control Act (IRCA) prohibits the employment of illegal aliens in the United States. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002). To accomplish this goal, the IRCA requires employers to verify the identity and eligibility of all new hires by examining specified documents, including social security account number cards, before they commence work. See generally § 1324a(b); see also Hoffman, 535 U.S. 137 at 148, 122 S.Ct. 1275.

Workers lose wages for various reasons. In Hoffman, for example, the employee was wrongfully terminated for engaging in union activities. More frequently, wages are lost because of work related injuries.

November 3, 2015

Jeffrey P. Gale, P.A. // Hold Hospitals’ Feet to the Fire

by Jeffrey P. Gale, P.A.

Most Florida hospitals and many doctors have contracts with health insurance companies to provide services to covered insureds at discounted rates. The arrangement requires those providers to bill the carriers for covered services without seeking payment from insureds through self-pay and other sources such as third party liability insurance. Some contracts allow providers to collect copayments.

We are currently handling a car crash case involving a local hospital that purposely failed to bill our client’s health insurance company with the expectation of receiving more money from the proceeds of our client’s settlement with the at-fault driver’s bodily injury liability insurance company. The hospital filed a lien for charges totaling more than $39,000 for a three hour emergency room visit. (The hospital is located in Miami-Dade County. An old Dade County ordinance grants hospitals lien rights. However, the lien does not take precedent over contractual obligations between hospitals and insurers.) It received $8,000 from our client’s PIP insurance — not to be confused with health insurance — leaving a $31,000 balance. (We are questioning the hospital’s right to bill PIP. The money it received could have been used to pay medical providers who do not accept our client’s health insurance.) Since the bodily injury policy per person limit is $25,000, something has to give. (Bodily injury liability insurance provides coverage in case you cause an accident in which another person (or people) is hurt. It covers the damages that you are legally responsible for, and provides a legal defense if someone sues you for damages.)

November 1, 2015

Jeffrey P. Gale, P.A. // Employers Skirt Florida’s Workers’ Compensation System

by Jeffrey P. Gale, P.A.

Florida employers with four or more employees must maintain workers’ compensation insurance or a statutorily prescribed alternative. §440.055 Florida Statutes (2015). An employer who fails to maintain the coverage may nevertheless be sued by an injured employee for workers’ compensation benefits or, in the alternative, the employee may proceed at common law to recover damages for injury or death. §440.06 Florida Statutes (2015). When sued at common law, the non-compliant employer “may not … defend such a suit on the grounds that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his or her employment, or that the injury was due to the comparative negligence of the employee.” §440.06 Florida Statutes (2015).

To limit or avoid the cost of workers’ compensation insurance, Florida employers sometimes understate payroll and/or purposely mischaracterize employees as independent contractors. Independent contractors are not employees. §440.02(15)(d).

October 31, 2015

Jeffrey P. Gale, P.A. // A Dog is Not an Uninsured Motorist

by Jeffrey P. Gale, P.A.

In a state (Florida) that does not require motorists to maintain Bodily Injury (BI) insurance, having Uninsured Motorist (UM)/Underinsured Motorist (UIM) coverage, within the prescripts of Florida Statute 627.727, is the best protection against uninsured/underinsured drivers. Per 627.727(1), UM/UIM is designed

“for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.”

We were recently contacted by a woman who sustained severe injuries from striking a tree after swerving to avoid hitting a dog. She had UM/UIM insurance, but because the dog, of course, was not operating an uninsured or underinsured motor vehicle, the coverage was not triggered. By contrast, had the woman swerved to avoid colliding with a so-called phantom vehicle which had cut her off, the prerequisite for UM coverage would have been met.

These are straightforward examples. Some are not.

FLORIDA INJURY ATTORNEY BLAWG