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question.jpgThe legal principle which binds a litigant to the path chosen to right a wrong is known as election of remedies. The principle should not be confused with the procedure of seeking alternative remedies within the same forum, best illustrated by a multi-count complaint asserting various legal theories of recovery.

Although not a common element in most cases, the election of remedies issue does arise with some frequency in connection with workers’ compensation and personal injury cases.

For the most part, it is clear when a worker has been injured on the job. Falling from a roof and being struck by a forklift are clear examples of work related accidents. Under Chapter 440 of Florida’s Statutes, Section 440.11 in particular, most employers with four or more employees will have what is called workers’ compensation immunity for these types of accidents. What this means is that most employees are limited to the remedies available under Florida’s workers’ compensation system.
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maze.jpgInjured Florida workers who seek workers’ compensation medical or indemnity (wage loss) benefits will see and be required to complete a variety of forms. It is important for Claimants to understand and complete the forms properly. Being wrong can lead to serious consequences including the denial of benefits and criminal prosecution for insurance fraud.

We represent injured workers. This blog will discuss the forms from that perspective.

First Report of Injury or Illness (DFS-F2-DWC-1)
This form contains basic factual information, such as a brief description of the accident, contact information of the employee, employer, and workers’ compensation insurance company, wage information, and is submitted to the workers’ compensation carrier and the Division of Administrative Hearings (DOAH), the state agency responsible for administering workers’ compensation cases. It is to be completed as soon after the accident as possible and signed by the employer and, when possible, the injured worker. Injured workers should review the form carefully, especially with regard to the description of the accident, before signing, and obtain an executed copy at that time.
Rule 69L-3.004
Specific Authority: 440.185(2), (5), (9), 440.19, 440.35, 449.591 FS. Law Implemented 440.185(2), (3), (5), 440.207(2), 440.35 FS. History-New 8-30-79, Amended 12-23-80, 11-5-81, 6-12-84, Formerly 38F-3.04, Amended 1-1-87, 4-11-90, 1-30-91, 11-8-94, Formerly 38F-3.004, 4L-3.004, Amended 1-10-05.

Wage Statement (DFS-F2-DWC-1a)
This form is not prepared or signed by the injured worker. It contains the employee’s wage information in order to calculate his/her average weekly wage (AWW). If applicable, the 13 week period immediately preceding the accident will be used to derive the AWW. Otherwise, a series of formulas will be considered, including the earnings of similar employees with the requisite 13 weeks of earnings and the contract of hire. Where the numbers provided in the form are questionable as to their accuracy, they can be cross-checked by payroll records and paycheck stubs. Frequent battles are fought over the correct AWW. Fringe benefits (e.g., health insurance) may also figure into the calculation.
Rule 69L-3.0046
Specific Authority: 440.14, 440.185(5), 440.591 FS. Law Implemented 440.12(2), 440.185(5), (9) FS. History-New 1-10-05, Amended 3-16-09.

Fraud Statement
Upon request from the employer, the employee must sign and return a form containing the language located in Florida Statute Section 440.105(7). The ostensible purpose of the form is to inform the claimant that knowingly and intentionally filing a false claim may constitute insurance fraud. We view it as a not so subtle message from employers and insurance carriers for employees to think twice about seeking workers’ compensation benefits, even entirely legitimate claims. Nevertheless, unless the form is signed and returned, benefits can be suspended. The employer/carrier are limited to one form per year.
Rule 69L-3.0047
Specific Authority: Specific Authority 440.105(7), 440.591 FS. Law Implemented 440.105(7) FS. History-New 1-10-05.

Medical Authorization and Description of Incident
Workers’ compensation insurance carriers sometimes ask claimants to execute these forms. This particular Description of Incident form is different than the one contained in the First Report of Injury or Illness.

The Patient/Physician privilege of confidentiality is one of the most sacred in American jurisprudence. Sadly, the Florida Legislature has decided that injured workers lose this privilege in exchange for receiving workers’ compensation benefits. Pursuant to 440.13(4)(c), “An employee who reports an injury or illness alleged to be work-related waives any physician-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation.” Accordingly, the only time an employee must execute a carrier’s medical authorization form is when “medical records, reports, and information of an injured employee are sought from health care providers who are not subject to the jurisdiction of the state.” 440.13(4)(c).

There is nothing in the law that requires the claimant to complete this Description of Injury form. We view the form as an effort by the employer/carrier to obtain evidence on which a denial of benefits or a claim for insurance fraud can be based. We do not allow our clients to complete this form.

We do require our clients to sign our firm’s medical authorization form. This allows us to obtain their medical records from all providers.

Mileage Reimbursement
The carrier should send this form to the claimant to be completed and returned. Properly completed, the carrier should reimburse the claimant for travel expenses to and from authorized medical appointments, including physical therapy. The information provided in the form includes dates of service and round trip mileage. Effective July 1, 2011, the Internal Revenue Service’s deductible rate is 55.5 cents per mile.

It is important to be accurate with the information provided. Carriers will examine the information closely for misrepresentations, hoping to find even the slightest error on which to base a denial of benefits. Claimants should not fudge the numbers to make a few dollars.

Upon request, carriers will provide transportation.
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scales of justice.jpgNot satisfied with the existing arbitrary damage caps on non-economic damages (e.g., pain & suffering) contained in Fla. Stat. 766.118 – presently under challenge in Estate of Michelle Evette McCall v. United States of America* as violating the Florida Constitution – Florida’s 2010 Republican-controlled legislature created additional barriers to the rights of individuals harmed by medical negligence.

Caps on non-economic damages for Medicaid patients. Contained in 766.118(6), Medicaid recipients harmed by medical negligence are limited to $300,000 in non-economic damages. The arbitrary cap applies regardless of the damage, including death and catastrophic injury (e.g., brain damage; paralysis).

Sovereign immunity granted to private medical schools and their employees providing services at teaching hospitals (primarily affects the University of Miami through its dealings with Jackson Memorial Hospital). The new measure is contained in F.S. 766.1115. I have blogged recently about the dangers associated with sovereign immunity – Sovereign Immunity and Florida Personal Injury Law. Sadly, the Florida Legislature has seen fit to extend the dangerous doctrine to private for-profit corporations.
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legal document.jpgTypically, Florida automobile insurance policies recognize two classes of insureds. Mullis v. State Farm Mut. Auto. Ins. Co., 252 So. 2d 229, 238. (Fla. 1971). Class I insureds are named insureds, usually the owner of the vehicle, and their resident relatives. Travelers Ins. Co. v. Warren, 678 So. 2d 324, 326 n.2 (Fla. 1996) (citing Mullis, 252 So. 2d at 238; Quirk v. Anthony, 563 So. 2d 710, 713 n.2 (Fla. 2d DCA 1990), approved, 583 So. 2d 1026 (Fla. 1991); Florida Statute 627.732(4). Class II insureds are lawful occupants of an insured vehicle who are not named insureds or resident relatives of named insureds; essentially, they are “third-party beneficiaries to the named insureds’ policy. Id. Class II insureds “are insured only because they are drivers or passengers in an insured vehicle with the consent of the named insured.” Florida Farm Bureau Cas. Co. v. Hurtado, 587 So. 2d 1314, 1317 (Fla. 1991) (citations omitted).
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government cut2.jpgInjured seamen are entitled to maintenance, cure, and unearned wage benefits regardless of fault. Moreover, as long as the injury or illness occurs while the seaman remains obligated to return to the vessel if called, such as when on shore leave, the benefits should be available, and because close calls concerning coverage are supposed to favor seamen, coverage has been granted under numerous other circumstances. While the no fault aspect of the law is the same as that utilized in most state workers’ compensation systems – Florida’s workers’ compensation system is located in Chapter 440 of the Florida Statutes – the state systems are more conservative with regard to the extension of coverage for injuries occurring beyond the workplace.
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crushed vehicle.jpgOwners of motor vehicles registered and operated in Florida are vicariously liable for damages caused by their vehicles while operated by a consensual driver. Car rental companies are exempt from this rule.

This form of strict liability is derived from Florida’s Dangerous Instrumentality Doctrine, adopted in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), which is based on the proposition that motor vehicles operated on public highways are dangerous instruments and the owners who entrust them to others should be liable for injury to others caused by negligence of the persons to whom the instrumentalities are entrusted.

Until 2005, when the Bush Administration and the Republican Congress carved out an exemption, through the Graves Amendment (49 U.S.C. Sec. 30106), the doctrine applied to the car rental industry. To this writer, the exemption is dangerous because it removes nearly every motivation the industry might have to know who is driving its vehicles. (See this blog for an example of what I mean: Profits Over People – The Willful Ignorance of Florida Car Rental Companies.)
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ship.jpgUnder traditional maritime law, a seaman had no cause of action against his employer for injuries caused by the negligence of a fellow seaman. The Osceola, 189 U.W. 158 (1903). This harsh rule changed in 1920, when Congress passed the Jones Act, 46 USC App. Section 688, creating a negligence action for seamen against their employers.

Text of Jones Act on personal injuries and death:

Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

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king.jpgSovereign Immunity derives from the medieval principle that “The King can do no wrong.” Prior to 1975, its application in Florida meant that the government could not be sued for damages caused by its wrongdoing. In that year, the Florida Legislature enacted Florida Statute 768.28, which allowed actions against the state or any of its agencies or subdivisions (e.g., cities, municipalities, counties). However, the statute capped the amount that could be recovered, regardless of the actual damages in a case, and it allowed to stand absolute immunity for planning level decisions.

From the statute’s original enactment until July 1, 2011, a period of 36 years, the damage caps stood at $100,000 per individual, $200,000 total per claim. For example, if 4 people were catastrophically injured by the negligence of a government employee, the most any one individual could recover was $100,000, leaving the other 3 to share the remaining $100,000. (The $200,000 could also be split equally among the four or any other way, so long as any one victime did not receive more than $100,000.)

In 2009, the Florida Legislature passed a bill upping the damage caps to $200,000/$300,000 effective July 1, 2011. The increase, although far from adequate in many cases, was a long time coming and a positive step.

The statute has left untouched absolute sovereign immunity for the discretionary, judgmental, planning-level decisions of a governmental entity. Examples include decisions concerning the initial plan, road alignment, traffic control device installation, the improvement of roads and intersections, and defects in the construction of a road, median, and intersection.

However, once the sovereign becomes aware of a hazard so serious and so inconspicuous to a foreseeable plaintiff that it virtually constitutes a trap, the planning level absolute sovereign immunity is waived, bringing into play the damage caps discussed above.

Countless wars have been fought over whether planning level immunity applies or has been waived.
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burning van.jpgI have blogged here in the past that the 2011 Republican-controlled Florida Legislature seemed bound and determined to gut one of the state’s most important laws at holding vehicle manufacturers accountable for producing defective products. Although some within the legislature may have had this outcome as a goal, reasonable minds prevailed in the 2011 legislative session to the extent that the legislative body’s modifications did not eviscerate the law as many within the civil justice community had feared.

The principle of law under discussion is the crashworthiness doctrine. It stands for the proposition that vehicle manufacturers can be liable for harm caused by unsafe vehicles, even if the vehicle was put to the test by another negligent party. Kidron v. Carmona, 665 So. 2d 289 (Fla. 3rd DCA 1995) (following Larson v. General Motors, 391 F. 2d 495 (8th Cir. 1968)).

The principle was later bolstered by the holding in D’Amario v. Ford, 806 So. 2d 424 (Fla. 2001), which limited the use of comparative fault in crashworthiness cases.

In D’Amario a minor was the passenger in a vehicle that struck a tree. A fire began that ended in an explosion, causing the minor to lose three limbs and suffering burns to much of his body. The fire resulted from a defective relay switch manufactured by Ford.

The minor and his mother sued Ford for the damages resulting from the defective switch. They did not seek to recover compensation from Ford for injuries from striking the tree.

At trial, Ford sought to introduce evidence as to the cause of the initial accident, which was that another minor was intoxicated and negligently drove the vehicle into the tree. The plaintiffs (mother and son) argued that this evidence was irrelevant to the claim for damages caused by the defective switch. The trial court admitted the evidence, meaning that it allowed the jury to hear the evidence. The jury returned a verdict for Ford.

The case was appealed and made its way to the Florida Supreme Court. The court considered cases from other states and concluded that the majority view in the nation was that such impact evidence was relevant. Nevertheless, the Florida Supreme Court adopted the minority view, ruling in favor of the catastrophically injured minor and his mother.

Before D’Amario, in crashworthiness cases jurors were allowed to hear evidence of the driver’s fault and apportion damages against the driver. This tended to direct the focus of responsibility onto the negligent driver and take it off the manufacturer whose defective product caused the enhanced injury. D’Amario eliminated the chance of such evidence distracting, confusing, or angering juries.

Not surprisingly, automobile manufacturers have been trying for ten years to reverse D’Amario. Many thought their goal would be accomplished in the 2011 legislative session. Although a measure was proposed that would have satisfied the manufacturers, amendments filed on the Senate Floor by Senator David Simmons (R) and passed by both chambers of the Legislature prevented the crashworthiness doctrine from being eliminated altogether in Florida. The bill that passed, which does modify D’Amario, revised Florida Statute 768.81.

The revised 768.81(3)(b) provides as follows:

In a products liability action alleging that injuries received by a claimant in an accident were enhanced by a defective product, the trier of fact shall consider the fault of all persons who contributed to the accident when apportioning fault between or among them. The jury shall be appropriately instructed by the trial judge on the apportionment of fault in products liability actions where there are allegations that the injuries received by the claimant in an accident were enhanced by a defective product. The rules of evidence apply to these actions.

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drunk.jpgPersonal injury cases against drunk drivers present positive opportunities for Plaintiff lawyers to seek punitive damages and recover enhanced compensatory damages (e.g., pain & suffering; lost wages).

Punitive Damages

The procedure for claiming punitive damages and the standards for holding a defendant liable for punitive damages are set forth in Florida Statute 768.72.

A claim for punitive damages may not be plead in the initial complaint. Rather, the Plaintiff must seek leave of court to amend the complaint to claim punitive damages. The judge should allow the amendment if evidence in the record or proferred by the Plaintiff provides a reasonable basis for recovery of such damages. Simeon, Inc. v. Cox, 671 So.2d 158 (Fla.1996) and F.S. 768.72(1). Contrary to the proposition often put forward by Defendants, the statute does not require an evidentiary hearing to permit the amendment. Pursuant to section 768.72, a proffer of evidence can support a trial court’s determination. Strasser v. Yalamanchi, 677 So.2d 455 (Fla. 2d DCA 1981).

768.72 says this about what must be shown to establish liability:

(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:

(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.

(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.

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Email: jgale@jeffgalelaw.com

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