Florida Injury Attorney Blawg

November 1, 2015

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

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.

September 27, 2015

Jeffrey P. Gale // Florida Statute 440.205 Workers’ Compensation Retaliation/Wrongful Termination COA (Prong #3)

by Jeffrey P. Gale, P.A.

In previous blogs, we addressed the first and second elements of a Section 440.205 Florida Statutes wrongful retaliation/termination cause of action. This blog will address prong the third element.

§440.205 reads as follows:

Coercion of employees.—No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

Case law has broken this cause of action down into the following elements:

The employee engaged in a statutorily protected activity;
An adverse employment action occurred; and
The adverse action was causally related to the employee’s protected activity.

Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004); and Humphrey v. Sears, Roebuck, and Co., 192 F. Supp. 2d 1371, 1374 (S.D. Fla. 2002).

September 26, 2015

Jeffrey P. Gale, P.A. // Virtually Impossible in Florida to Overcome Workers’ Compensation Immunity (440.11)

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system was created, in 1935, with the goal of providing benefits to injured workers without the delay of having to prove the accident was caused by the employer’s negligence. In exchange for this no-fault system, employers were granted immunity from being liable for negligence.

The system, however, did not afford absolute immunity. There was a time when employees who were able to demonstrate that an employer engaged in conduct which is substantially certain to result in injury or death, could pursue a civil remedy. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000).

While difficult, overcoming workers’ compensation immunity by establishing substantial certainty was within reach.

In 2003, Governor Jeb Bush and the Florida Legislature put the chance of overcoming workers’ compensation immunity out of reach. New measures, in the form of Florida Statute 440.11, were instituted to make overcoming employer immunity virtually impossible.

September 20, 2015

Jeffrey P. Gale // Florida Statute 440.205 Workers’ Compensation Retaliation/Wrongful Termination COA (Prong #2)

by Jeffrey P. Gale, P.A.

Our previous blog addressed the first prong of a Florida Statute §440.205 workers’ compensation retaliation/wrongful termination cause of action (COA). §440.205 provides:

Coercion of employees.—No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

Case law has established the elements of a §440.205 COA as follows: the employee must prove: (1) he engaged in a statutorily protected activity; (2) an adverse employment action occurred; and (3) the adverse action was causally related to the employee’s protected activity. Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004); and Humphrey v. Sears, Roebuck, and Co., 192 F. Supp. 2d 1371, 1374 (S.D. Fla. 2002).

This blog will address prong (2).

September 16, 2015

Jeffrey P. Gale // Florida Statute 440.205 Workers’ Compensation Retaliation/Wrongful Termination COA (Prong #1)

by Jeffrey P. Gale, P.A.

Florida is an at-will employment state. The doctrine often allows employers to end employment relationships without suffering any negative consequences besides paying unemployment compensation benefits.

While the doctrine creates a climate of vulnerability, Florida employers do not have absolute immunity for every termination decision. They can find themselves in hot water for

harassing or terminating an employee because of his or her protected member status (e.g., race, color, religion, national origin, age, sex);
retaliating against an employee for engaging in whistleblowing activities (also, US Dept. of Labor);
retaliating against an employee for seeking benefits under the FLSA; or
retaliating against an employee for making a valid claim for compensation or attempting to claim compensation under §440.205 Florida Statutes of Florida Workers’ Compensation Act.

This blog will address the first element of a §440.205 retaliatory discharge claim.

September 5, 2015

Jeffrey P. Gale, P.A. // Example of Florida’s Eroding Workers’ Compensation Benefits — TTD (440.15(2)(b))

by Jeffrey P. Gale, P.A.

I have blogged often to express my displeasure and dismay with the slow and sometimes immediate erosion of benefits available to injured workers under Florida’s workers’ compensation system. This blog highlights one example.

The Florida Legislature enacted the state’s first “Workman’s” Compensation Act in 1935. While I have not done a case study of the Act and its changes from 1935, I can speak with authority on the subject from when I first became involved in the system in 1989: The quality and value of benefits available to Claimants have diminished dramatically to now.

A clear and simple example involves §440.15(2)(b) Florida Statutes.

August 31, 2015

Jeffrey P. Gale, P.A. // Burden on Defendant to Prove Entitlement to Offset

by Jeffrey P. Gale, P.A.

Personal injury plaintiffs and defendants battle over past and future damages. One frequent battleground concerns the amount a plaintiff should be awarded for future medical expenses.

Not infrequently, plaintiffs have sources such as health insurance, workers’ compensation, PIP, Med Pay, Medicaid, and Medicare to cover some or all of their future medical expenses. Almost always, these sources pay less than the usual and customary rates charged by most medical providers. Moreover, by accepting payments from these sources, medical providers are barred, in most instances, from balance billing beyond a small copay.

August 30, 2015

Jeffrey P. Gale, P.A. // Future Damages Not Offset by Parental Payments

by Jeffrey P. Gale, P.A.

Florida’s civil justice system allows accident victims to seek damages from those alleged to be at fault. Damages awardable fall into two broad categories: Economic and non-economic.

Economic damages include medical expenses (past and future), past lost income, and the loss of earning capacity in the future. In some instances, Florida law allows these economic damages to be offset, or reduced, by or to the amount the victim received from other sources for the same loss. See §786.76 Florida Statutes and Florida Standard Jury Instruction 501.8.

August 29, 2015

Jeffrey P. Gale, P.A. // Florida’s First DCA Ostensibly Workers’ Compensation’s Supreme Court

by Jeffrey P. Gale, P.A.

Florida has five district courts of appeal. These courts are charged with reviewing rulings and outcomes arising in lower tribunals. Above these courts sits the Florida Supreme Court. This court reviews decisions issued by the five lower courts of appeal.

Cases reach the Florida Supreme Court in one or more of the following ways: (1) an opinion rendered by one appellate court conflicts with an opinion of one or more other appellate courts; (2) the opinion conflicts with a Supreme Court decision; (3) the appellate court decision declares a statute unconstitutional; or (4) the appellate court declares the question(s) before it to be of great public importance. By far, number (1) is the most common method.

FLORIDA INJURY ATTORNEY BLAWG