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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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In 1920, the Florida Supreme Court, in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920), applied the dangerous-instrumentality doctrine to automobiles. The significance of the holding is that owners of automobiles are responsible for personal injuries caused through the negligence of those who drive their vehicles. The legal theory that holds the owner accountable is known as vicarious liability. The Supreme Court reasoned:

This form of vicarious liability is not based on respondent superior or an agency conception, but on the practical fact that the owner of an instrumentality which [has] the capability of causing death or destruction should in justice answer for misuse of this instrumentality by anyone operating it with his knowledge and consent.

(See this blog for a major exception to the danagerous-instrumentality doctrine.)

In 1984, the Florida Supreme Court expanded the dangerous-instrumentality doctrine to include golf carts, even those being used on the golf course. Meister v. Fisher, 462 So. 2d 1071 Fla. 1984). However, as the evolution of common law doctrine moves at a glacial pace, it has not yet been determined if ATVs are dangerous-instrumentalities for purposes of vicarious liability. The question is likely to be answered soon.
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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. Like a non-stop chant – think Florida State University football games – they scream of a crisis involving frivilous claims and fleeing doctors (but refuse to make the same claims under oath). The statistics tell a much different story.

According to the Insurance Information Institute, a study of almost 11,000 medical malpractice trials between 1985 and 1999 found that provider-defendants won approximately 81 percent of the time. A Bureau of Justice Statistics study of medical malpractice cases tried in large counties across the United States found that defendants won approximately 73 percent of the time. By contrast, the study reports that plaintiffs won 52 percent of all tort trials (not just medical malpractice trials) in its sample that took place in 2001.

Despite the availability of these enlightening numbers, the false misrepresentations have not abated. Sadly, the legislators of many states, Florida included, have accepted, purposely or not, the misrepresentations like a grouper swallowing its prey. The result has been the enactment of laws making it prohibitive to pursue a claim for negligence against medical providers.

In Florida, pre-suit requirements can exact the expenditure of upwards of $10,000 before a lawsuit can be instituted, versus a more reasonable $400 filling fee to initiate a claim against a non-medical provider. In addition, the Florida Legislature, aided and abetted by Governor Jeb Bush, placed arbitrary damage caps on awards against medical providers. (See this blog.) Claims against non-medical providers do not have similar arbitrary damage caps.
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There are three primary types of lost wage, or indemnity, benefits available to injured workers under Florida’s workers’ compensation system. They are: Temporary Partial Disability (440.15(4)); Temporary Total Disability (440.15(2)); and Permanent Total Disability (440.15(1)). Each of the temporary benefits is available for a limited period of time – not to exceed 104 weeks (see 440.15(2) & (4) – while the injured worker is actively receiving medical care prior to reaching maximum medical improvement (440.02(10). PTD is the only one of the three available after maximum medical improvement (Section 440.15) … and the most difficult to receive.

For the most part, TTD and TPD benefits are available upon a simple showing that the wage loss is the consequence of the injury. Much more is required to establish entitlement to PTD.

To qualify for PTD, one must show that he/she is not physically capable of engaging in at least sedentary duty work within a 50-mile radius of his/her residence or have sustained one or more of the catastrophic injuries listed in 440.15(1)(b). Not surprisingly, qualifying is not as easy as it may seem from a simple reading of the statute.

The sedentary work referenced in the statute can be any job in the national economy, not just the injured worker’s former job. Many claimants believe that unless they are able to return to their former employment, they are PTD. This is rarely the case. (Former employment has relevance in PTD cases, but not in the way most lay people think. Examples of sedentary work include security guard and toll booth attendant. A qualified vocational expert will come to court with a list of 200+ so-called sedentary jobs that exist in the national economy for individuals with limited educations and office skills.)
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Allergan, Inc., the maker of wrinkle-smooting Botox, has agreed to pay $600 million to settle a year-long federal investigation into its marketing of the top-selling, botulin-based drug. The investigation, involving charges of paying kickbacks to induce physicians to inject Botox for off-label uses and teaching doctors how to bill for off-label uses, including coaching doctors how to miscode Botox claims leading to millions of dollars of false claims being submitted to federal and state programs, was started by a whistle-blower complaint. The Justice Department says the company will plead guilty of one misdemeanor charge of “misbranding.” (Allergen also reached an agreement with the Department of Health and Human Services’ Office of the Inspector General that requires the company to submit compliance reports, and to post on its website any payments to doctors, such as honoria, travel or lodging.”

Manufacturers are prohibited from promoting drugs for unapproved, or “off-label,” uses. Botox is approved by the F.D.A. to treat uncontrolled blinking; crossed eyes; certain neck muscle spasms; excessive underarm sweating; and stiffness associated with muscle spasticity in the elbows and hands. It also is approved for cosmetic purposes — to smooth lines between the eyebrows – and two weeks ago, ironically, it was approved as a treatment to prevent chronic migraine headaches, one of the charges for which it agreed to pay the $600 million.

The misuse of prescription drugs, both purposely and through negligence, happens frequently and often has dire consequences. If you or a loved one may be the victim of such misuse, please contact our office for a free, confidential consultation to discuss your case.
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Annually, well more than one million Americans have refractive surgery to correct their vision. Refractive surgery is any type of surgery that alters the refractive power of the eye. Lasik is the most well known of the procedures, but others are available, including Lasek, PRK, and Epi-Lasik. Most of the refractive surgeries rely on laser, but Conductive Keratoplasty (CK) uses radio wave energy.

Unfortunately, as common as the procedures have become, preventable injuries do occur. Most of the injuries can be divided into five major categories:

  • Contraindications for surgery
  • Surgeon error
  • Failure to treat postoperative complications in a timely and proper manner
  • Failure to obtain informed consent
  • Equipment malfunction

Contraindications for Refractive Surgery
Some patients are poor candidates for refractive surgery. Eye diseases, such as keratoconus, corneal dystropies, or retinal detachments, are the most common contraindications for these patients.

A surgeon is supposed to evaluate the patient prior to surgery. A policy statement from the American Academy of Ophthalmology (AA0) explains the reasoning for the surgeon evaluation:

“The best interest of the preoperative patient is served by preoperative evaluation by the operating surgeon. Ethical and qualify of care standards are met only if the individual patient’s needs are addressed…. It is the ophthalmologist’s responsibility to provide quality control, prospectively, in the preoperative assessment.”

Unfortunately, the preoperative evaluation by the surgeon is not always done. This increases the chances that contraindications are missed. The consequences of performing surgery with contraindications can be extremely severe, including the need for corneal transplants.

Other reasons for negative surgical outcomes include poor skills of technicians responsible for reading measurements and surgeons taking unnecessary chances.

Surgeon Error
The surgeon’s inadequate technique or skills may result in poor alignment of the corneal flap or cutting into the cornea. In some instances, the wrong prescription is programmed into the laser.
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worker2.jpgMost work-related injuries are caused by acute, single incident accidents. Absent the accident being the result of horseplay, injuries caused this way are typically compensable under Florida’s workers’ compensation system.

Are injuries caused by repetitive trauma over a period of time compensable? So long as the injured worker’s evidence establishes the following elements, the answer is Yes: (1) prolonged exposure; (2) the cumulative effect of which is injury or aggravation of a preexisting condition; and (3) the job subjected the injured worker to a hazard greater than that to which the public is exposed. See Festa v. Teleflex, Inc., 382 So.2d 122, 124 (Fla. 1st DCA 1980). (See, however, Rodriguez v. Frito-Lay, Inc., 600 So. 2d 1167 (Fla. 1st DCA 1992) which seems to do away with the requirement that the job subjected them to a hazard greater than that to which the public is exposed.) (See, also, University of Florida v. Massie, 602 So. 2d 516 (Fla, 1992), a Supreme Court case which provides that for a preexisting condition to be compensable, the condition must be aggravated by some non-routine, job related physical condition, or by some form of repeated physical trauma. By requiring physical stress, this case is aimed at limiting, if not altogether eliminating, mental stress as being enough to establish entitlement for aggravation of a preexisting condition.)

Significantly, in repetitive trauma cases the proof required to overcome the non-compensable presumption in 440.02(1), Fla. Stat., “clear and convincing evidence,” rather than the lower “preponderance of the evidence” standard. “Clear and convincing evidence” is evidence of a quality and character designed to produce in the judge of compensation claims’ mind a firm belief or conviction, without hesitation, as to the truth of the allegations.

The facts of the first workers’ compensation case I took to final merit hearing illustrate the law well. My client was a 60+ year old woman, who, we alleged, developed inververtebral cervical disc herniations through years of repetitive trauma from lifting box spring mattress frames. She worked in a warehouse and her job was to construct the frames, ranging in size from single to king, then physically lift and place each frame, one on top of the other, onto a dolly located beside her work station. She slowly developed severe cervical pain that forced her to retire. The employer and its insurance company denied responsibility for her injuries. Unable to point to a single incident to explain the disc herniations, we brought a Festa repetitive trauma claim against the employer/carrier.
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Much has been reported lately about Florida Republican gubenatorial candidate Rick Scott invoking 75 times his Fifth Amendment right against self-incrimination in a civil case brought by a Nevada company.

The Fifth Amendment to the United States Constitution was ratified in 1791. It provides as follows:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. Kastigar v. U.S., 406 U.S. 441 (1972). Accordingly, assuming that Mr. Scott reasonably believed his statements could be used against him in a criminal prosecution, he had the constitutional right those 75 times to refuse to answer questions put to him under oath.
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Workplace forklift accidents are common in Florida and often result in catastrophic injuries or death. Our law firm is currently handling two forklift accident cases, each involving serious injuries.

Employees injured in forklift accidents should be eligible to receive workers’ compensation benefits through the employer or its insurance company. The workers’ compensation benefits will consist of medical benefits and lost wages. Because of Florida Statute 440.11, these are the only benefits that will be available from the employer in most cases. There will be no compensation [from the employer] for pain and suffering, and only a remote chance of being indemnified for the loss of future earning capacity.

To be compensated for these damages, the injured worker must be able to make out a case of negligence against a third party, such as the forklift manufacturer or an outside forklift maintenance company. This is our strategy in one of the two forklift cases, in which the forklift failed to slow when it was being operated in reverse, causing the operator’s foot to be crushed between the forklift and a wall. In our other forklift case, we have eliminated third party liability as the cause.
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