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33 U.S.C.A. 907 provides that employers are responsible for furnishing medical care to LHW for so long as the nature of the injuries and process of recovery may require. This sounds good for injured workers, but doesn’t always work out that way.

The key to the successful medical outcome for any injured longshore and harbor worker is the quaility of care provided. Sadly, successful recovery is not always an employer’s primary concern. Often, limiting claim costs is the foremost concern. When this is so, the quality of medical care may be compromised.

Under the LHWCA, injured workers are entitled to medical care and, in most cases, some wage loss benefits. The extent of those wage loss benefits is largely determined by the medical opinions given by the treating doctor(s).

Doctors closely aligned with employers and their insurance carriers have a tendency or inclination to give opinions favorable to the employers and carriers. When in doubt, their decisions favor employers and carriers.

Our law firm does not approve of this mentality. We believe that medical providers should act with the patient’s best interest in mind, rather than the employer/carrier’s.
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Florida Statute 366.15 addresses the issue of medical dependence on electric-powered equipment and public utility companies. Unfortunately, the statute appears to be a toothless tiger.

Many Floridians who live in private residences are dependent on electric-powered equipment that must be operated continuously to avoid the loss of life or immediate hospitalization. Not infrequently, the money to pay for the electric service to power the life support equipment is not always readily available.

One might conclude from reading the statute that public utility companies must overcome numerous procedural hurdles in order to disconnect service to individuals in need of “medically essential” electric-powered equipment. For example, the statute speaks in terms of prior notice to the customer and providing information regarding funding sources to pay electric bills. However, the last paragraph of the statute, which provides as follows, sends a somewhat different message: (11) Nothing in this act shall form the basis for any cause of action against a public utility. Failure to comply with any obligation created by this act does not constitute evidence of negligence on the part of the public utility.
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In the November, 2010 election, Republicans gained additional seats in the Florida House and Senate, making their previous solid majorities even stronger. Combined with the election of pro-big business Republican Governor Rick Scott, individuals should expect to see their rights at seeking redress from large corporations dramatically curtailed.

One of the first orders of business for the Republican legislature will be to eliminate the “enhanced injury” doctrine. As I discussed in a previous blog, the enhanced injury doctrine is a principle of law that allows civil courts to hold corporations accountable for damages caused by their negligence that exceed the damages due to the initial fault. A clear and simple example of the principle in application comes from the seminal case on the doctrine, D’Amario v. Ford Motor Company, 806 So.2d 424 (Fla. 2001). D’Amario involved a minor passenger in a vehicle that struck a tree. Following the impact, a fire began that ended in an explosion, causing the minor to lose three limbs and suffer burns to much of his body. The minor and his mother sued Ford alleging that a defective relay switch in the automobile caused the fire. They alleged that but for the defective switch, the fire would not have started and the minor’s injuries would have been limited to those from impacting the tree. Consistent with the enhanced injury doctrine, they limited their claim for damages to those caused by the fire. The case went to trial and was ultimately appealed to the Florida Supreme Court. The Supreme Court held Ford Motor Company responsible for the enhanced injuries, thus establishing the doctrine.
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Crime victims may be eligible for up to $25,000 ($50,000 for catastrophic injury) in compensation benefits from the State of Florida’s Victim Compensation Program. (Qualifying crimes include assault, DUI and hit-and-run accidents, rape, and murder.) Unfortunately, the beaurocratic maze that must be navigated to receive benefits, especially during times of heightened stress, often proves overly daunting for victims. Law firms versed in handling these matters can assist victims in obtaining compensation.

The benefits obtainable through the Victim Compensation Program resemble those available to individuals involved in personal injury cases. Therefore, an experienced personal injury lawyer will have a good understanding of how to meet the requirements of the Victim Compensation Program. In some instances, the lawyer can pursue a personal injury claim and a claim for Victim Compensation Program benefits simultaneously.
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It is unlawful for any person whose driver’s license has been suspended to operate a vehicle upon the streets and highways of Florida. Florida Statute 322.34. In addition, any vehicle owner who knowingly allows a person with a suspended license to operate his/her vehicle in Florida commits a misdemeanor of the second degree. 322.36. (Since Florida Statute 322.38, which addresses the minimum duty owed by rental agencies, uses the word “person” in reference to an owner who rents his/her vehicle, the use of the word “person” in 322.36 makes its provisions applicable to rental agencies.)

We are currently involved in litigation against Enterprise Leasing Company of Florida, LLC (Miami-Dade County case number 08-80070 CA 23), for catastrophic injuries caused by the renter of one of its vehicles in a highway roll-over accident. When Enterprise allowed the renter to drive its vehicle off its lot, his Florida license was under suspension for moving violations.

Enterprise’s defense is that it did not know or have a duty to determine if the renter’s license was suspended. Interestingly, an Enterprise representative testified in deposition that, had the company known [of the suspension], it would have been negligence on its part to entrust its vehicle to the renter. We have asserted that Enterprise had a duty to limit the risk to our client, which included making an effort to determine, at a minimum, the status of its renter’s Florida license. In a Motion for Summary Judgment, Enterprise asked the court to decide the issue. The court denied Enterprise’s motion, allowing us to proceed with our case.

Since 1999, Florida driver license status records have been searchable through the Internet by DL number or name/date-of-birth/sex, making status information available in a matter of seconds. Enterprise did not perform this simple and fast search in our case. Had it done so, it would have learned of the suspended license, which was registered in the database since 2006, some two years before our accident. (By the way, Enterprise’s customer, who did not have a valid credit card, paid cash to rent the vehicle.)

Was this a case of willful ignorance to avoid the chance of turning away a paying customer?

For many years, numerous car rental companies had been using databases to screen driving records of potential renters. See articles #1 and #2. (It is estimated that 6-10% of potential renters are denied by the screening process. The reasons for the denials vary from suspended licenses to poor driving records.) However, among the major car rental companies, Enterprise was an exception to that policy.

Sadly, the pack may soon, if not already, be following Enterprise’s lead.
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The Readers’ Forum section, The Miami Herald published a letter from a South Florida doctor containing various assertions about medical malpractice litigation. The letter angered my wife, who decided that a response was necessary. Here it is:

Dr. Jerome Reich’s statement that “about 25-30 percent of the cost of our system is directly related to malpractice litigation, defensive medicine because of the threat of litigation and flagrantly ridiculous cases that some attorneys take on a contingency basis simply for “settlement”” is inflammatory and wrong.

Through years of misrepresentations, the insurance and medical industries have convinced the general public that every medical malpractice jury verdict favors the patient regardless of the merits of any particular case. The statistics tell a much different story. According to a 2001 study conducted by the Bureau of Justice Statistics, medical malpractice plaintiffs win only 27% of trial cases. There are many other studies with similar results. Interestingly, when this issue was brought up before the Florida legislature several years ago, the people making these inflammatory statements would not do so under oath.

A large focus of the conservative position on health care reform has been that frivolous lawsuits drive up health care costs and require doctors to practice “defensive medicine” that is costly and wasteful. However, the health economists and independent legal experts who study the issue do not believe that is true. They say that malpractice liability costs are a small fraction of the spiraling costs of the U.S. health care system, and that the medical errors that malpractice liability tries to prevent are themselves a huge cost both to the injured patients and to the health care system as a whole. Tom Baker, a professor at the University of Pennsylvania Law School and author of The Medical Malpractice Myth states “If you were to eliminate medical malpractice liability, even forgetting the negative consequences that would have for safety, accountability, and responsiveness, maybe we’d be talking about 1.5 percent of health care costs.”

The bottom line to me is that medical malpractice lawyers provide a much needed service. Heaven forbid that you or a family member be the victim of medical malpractice and have no legal recourse. Without legal recourse, what incentives are there to make our medical system better?
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Fifteen-passenger vans, especially those manufactured before 2004, are, by design, inherently unstable and unsafe, making them prone to roll over during tire blowouts and quick maneuving at higher speeds. People are being severly injured and killed when the vans roll over. Sadly, federal regulators and auto safety experts have known for years that these vans are unfit to transport people, yet they continue to be manufactured.

These vans were originally designed to carry cargo, not people. Those designed before 2004 lack even the most basic safety improvements and NHTSA-required warnings and advisories. However, even the newer models are unstable.

Federal law prohibits the sale of 15-passenger vans for the school-related transport of high school age and younger students, yet they continue to be rented for family use by the major rental agencies.

More than 500,000 of these vehicles are in use in the United States.
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A statute of limitations is a provision that ends a person’s right to claim benefits or sue for compensation and damages. A Florida workers’ compensation claim or petition for benefits is forever barred unless it is filed within (1) two years of the date of injury, or (2) after the initial two years, within one year of the last payment of compensation or provision of medical treatment, care or attendance. Florida Statute Sections 440.19(1) & (2).

The two years from the date of injury element does not begin to run until the injured worker, as a reasonable person, knew or should have recognized the “nature, seriousness, and probable compensable character of his injury or disease.” See Herb’s Exxon v. Whatmough, 487 So. 2d 1169, 1172 (Fla. 1st DCA 1986) and 440.19(1). The practical application of this rule is that the statute of limitations (SOL) begins to run in most cases, but not all, from the date of the actual accident. Examples of when the SOL does not begin to run on the date of the accident include conditions of unknown cause, such as hepatitis and HIV infection (where the diagnosis comes well after the infecting mechanism, e.g., needle stick, occurred), a minor injury, e.g., tinge of back pain from lifting a box, that is diagnosed a few weeks later as a serious condition, and injuries resulting from repetitive trauma (see this blog). If the issue of knowledge goes to trial, a Judge of Workers’ Compensation Claims will make the final determination based on the “reasonable man” standard (a standard frequently used in law to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining a particular issue).
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Florida employees injured in the course and scope of their employment may be eligible for workers’ compensation wage loss benefits. Florida’s workers’ compensation system offers three types of wage loss benefits – Temporary Partial Disability (TPD) (Florida Statute 440.15(4)), Temporary Total Disability (TTD) (440.15(2)), and Permanent Total Disability (PTD) (440.15(1)). Of the three types of benefits, only TPD and TTD are available during the recovery stage, or before maximum medical improvement (440.02(10)). Of the two, only TPD is payable while the injured employee is able to work. This blog will discuss what evidence injured workers must present to make a prima facie case to receive TPD.

Under 440.15(4)(a), TPD benefits are payable “if overall maximum medical improvement has not been reached and the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work.” For years, the second clause of this simple sentence has resulted in extensive litigation. With the recent decision in

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With the exception of independent contractors working or performing services in the construction industry (Florida Statute 440.02(15)(c)3), individuals working as independent contractors are not eligible for workers’ compensation benefits from the companies for whom they are performing services. The reason why is because they are not considered employees of those companies. F.S. 440.02(15)(d)1.

These statements should not be misconstrued as meaning that employees of independent contractors are not entitled to workers’ compensation. Such employees are entitled to workers’ compensation from their own employers. However, in many instances, the individuals who work as independent contractors are self-employed or work for others who do not have workers’ compensation insurance.

Many companies seek to limit their workers’ compensation insurance premiums and claims by classifying individuals as independent contractors when they are not. On the opposite end of the spectrum, some companies try to avoid being sued for negligence by classifying independent contractors as employees. See Florida Statute 440.11 Exclusiveness of Liability.

The issue has been heavily litigated in Florida. To provide some guidance on the issue, the Florida Legislature created a checklist of factors to consider in making the determination. See 440.02(15)(d). The factors include:

  • Whether or not the individual maintained a separate business, with his or her own work facility, truck, equipment and materials;
  • Whether or not the individual holds or has applied for a federal identification number;
  • Whether or not the individual performs work for any entity in addition to the person for whom he or she was performing work at the time of the accident;
  • Whether or not the individual incurs the expenses of the work performed;
  • Whether or not the individual may realize a profit or a loss in connection with the work;
  • The success or failure of the individual’s business depends on the relationship of business receipts to expenditures

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