Florida Injury Attorney Blawg

August 11, 2022

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Medical Authorization Legal Nuggets

Florida employers and their workers’ compensation insurance carriers, often referred to in combination as the “E/C,” are obligated under Florida Statute 440.13(2)(a) to “furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require….” Many a battle is fought over medical necessity.

It is common in workers’ compensation cases for authorized medical providers to make referrals for various types of medical care. Under 440.13, once E/C has received the referral request, it has a prescribed period of time to respond or the requested care will be deemed medically necessary. The request must be made in writing to the carrier, while the carrier’s response may be by telephone or in writing. Sec. 440.13(3)(d).

How long E/C has to respond depends on the nature and expense of the requested service. 440.13(3)(d) limits the response time to three (3) days, while 440.13(3)(i) allows ten (10) days. 440.13(3)(i) provides in pertinent part as follows:

Notwithstanding paragraph (d), a claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, X-ray examinations, or special diagnostic laboratory tests that cost more than $1,000 and other specialty services that the department identifies by rule is not valid and reimbursable unless the services have been expressly authorized by the carrier….

In practice, this exception applies to most referrals. For example, in the typical workers’ compensation case, the carrier will authorize a clinic to provide the initial evaluation and treat to the extent of its expertise. Almost invariably, the clinic will prescribe onsite physical therapy. This prescription falls under (3)(i). When the employee’s complaints persist, the clinic doctor will prescribe an MRI. This, too, falls under (3)(i). And if the MRI shows a medical condition outside the expertise of the clinic doctor, a referral will be made to a specialist, another (3)(i) situation.

August 3, 2022

Jeffrey P. Gale, P.A. // “Objective Relevant Medical Findings” Only Required in Florida Workers’ Compensation Cases to Prove Compensability

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system has its own unique set of laws. One of these concerns the burden claimants bear in establishing the compensability of injuries. Per section 440.09(1), Florida Statutes, the injury “must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries.”

The statute defines objective relevant medical findings as “those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing.” The instructions accompanying form DWC-25, which is typically completed by workers’ compensation doctors after each appointment, say this about objective relevant medical findings:

Objective Relevant Medical Findings: Pursuant to Section 440.09(1), F.S., pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable. Further, pursuant to Section 440.13(16)(a), F.S., abnormal anatomical findings alone, in the absence of objective relevant medical findings, shall not be an indicator of an injury or illness, a justification for the provision of remedial medical care, the assignment of restrictions, or a foundation for limitations. Objective relevant medical findings are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by the physical examination findings or diagnostic testing.

Compensability is but one of many issues in Florida workers’ compensation cases. Even after compensability is resolved, disputes may arise over other issues such as the transfer of medical care and the payment of indemnity (money) benefits. Interestingly, even though medical evidence is needed to resolve almost every workers’ compensation dispute, compensability is the only one in which “objective relevant medical findings” is a mandatory element.

This point has been and remains an area of confusion for lawyers, adjusters, and workers’ compensation judges.

July 29, 2022

Jeffrey P. Gale, P.A. // The Federalist Society Opposes Civil Jury Trials for Average Citizens

by Jeffrey P. Gale, P.A.

The Seventh Amendment to the United States Constitution provides as follows:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The first ten amendments to the Constitution are known as the Bill of Rights. They were proposed by James Madison, the fourth president of the United States, in a speech before Congress on June 8, 1789. Here’s what he said in that speech about jury trials:

Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre—existent rights of nature.

The Federalist Society is a conservative American legal organization. Former members include current U.S. Supreme Court justices Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, and Amy Coney Barrett. The society’s logo is a silhouette of James Madison and its website displays his portrait at the bottom.

July 27, 2022

Jeffrey P. Gale, P.A. // Unrelated Works Exception to Workers’ Compensation Immunity Does Not Apply to Employees of a Different Subcontractor

by Jeffrey P. Gale, P.A.

It is the job of every injury lawyer to maximize the client’s recovery. Sometimes when a person is hurt at work, more than one remedy is available. Workers’ compensation is one remedy. Civil law is another.

Florida’s workers’ compensation laws do not allow for the recovery of noneconomic damages such as pain and suffering. Workers’ compensation covers only authorized medical expenses and a defined period of lost wages. Noneconomic damages are not allowed. Civil remedy damages include economic damages such as medical expenses and lost wages as well as noneconomic damages.

Florida Statute 440.11 provides immunity to employers and their employees from civil remedy actions. There are exceptions to this rule. The exceptions are outlined in 440.11. The employer loses its immunity if it fails to maintain the workers’ compensation security required by Chapter 440 or commits an intentional tort. Section 440.11(1)(b) describes the fellow-employee exceptions:

Fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment. (Italics added.)

In Moradiellos v Gerelco Traffic Controls, Inc., 176 So.3d 329 (Fla. 3rd DCA 2015), Mr. Moradiellos was killed in a construction site incident caused by the negligence of a subcontractor’s employee. Employees of construction subcontractors typically also get the 440.11 workers’ compensation immunity. The decedent was employed by the general contractor.

July 26, 2022

Jeffrey P. Gale, P.A. // Changing Societal Expectations Impact Negligent Security Law

by Jeffrey P. Gale, P.A.

To defeat a negligent security claim arising from a violent crime, property owners and event organizers used to be able to hide behind the defense that nothing similar happened in the past. In a society buried in cellphone footage of violent crimes, juries are less inclined to give those who hold the safety of others in their hands a free strike or two before holding them accountable. Those in control of surrounding circumstances are now expected to be proactive in protecting against foreseeable harm.

Examples of proactive conduct include:

A visible security presence including guards and cameras.

July 22, 2022

Jeffrey P. Gale, P.A. // Florida Motor Vehicle Insurance Protections Gutted by The Graves Amendment

by Jeffrey P. Gale, P.A.

Companies make billions of dollars leasing and renting their motor vehicles. You’d think they’d have some corresponding corporate responsibility to compensate individuals injured through no fault of their own by the negligent operation of their vehicles. They don’t.

The Florida Legislature once believed they did. They may still feel this way, but its will has been overridden by Federal law.

While section 324.021(9), Florida Statutes requires rental and leasing companies to maintain a substantial minimum amount of liability insurance on their vehicles operated in the state, it has been superseded by 49 U.S. Code Sec. 30106, also known as the Graves Amendment, which was enacted into law in 2005.

July 19, 2022

Jeffrey P. Gale, P.A. // Florida Liability Insurance Carriers Not Obligated by Duty of Good Faith to Settle Claims of All Insureds

by Jeffrey P. Gale, P.A.

Florida liability insurance policies often provide coverage to many individuals, including those not named in the policy. For example, the standard Florida motor vehicle policy will insure vehicle owners and unlisted permissive users. This was the scenario in Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16 (Fla. 4th DCA 2006).

Insurance companies are obligated under Florida law to act in good faith and with due regard for every insured’s interests. Boston Old Colony Insurance Company v. Gutierrez, 386 So.2d 783 (Fla. 1980). Under this duty, carriers must give fair consideration of any settlement opportunity and settle the claim when it can and should do so. Powell v. Prudential Property & Casualty Ins. Co., 584 So. 2d 12, 13 (Fla. 3rd DCA 1991).

In Contreras, a permissive user struck and killed a pedestrian while driving at a high rate of speed after consuming alcohol. Both the owner of the vehicle and the permissive user were covered under a U.S. Security motor vehicle liability insurance policy. Coverage under the policy for wrongful death was limited to $10,000.

May 12, 2022

Jeffrey P. Gale, P.A. // Limiting Social Security Disability Offset After Florida Workers’ Compensation Settlement

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system provides for three types of weekly indemnity benefits:

440.15(1) Permanent Total Disability

440.15(2) Temporary Total Disability

400.15(4) Temporary Partial Disability

An injured worker may simultaneously be eligible for monthly Social Security Disability benefits under 42 U.S.C. s. 423. If the combined benefits exceed 80% of the claimant’s workers’ compensation average weekly wage (AWW), section 440.15(9), Florida Statutes, allows the workers’ compensation carrier to reduce its payment until the combined amount gets down to 80%. (The state precedence is authorized by 42 U.S.C. § 424a(d).)

Not every state allows the insurance carrier to take an offset. In the absence of the carrier taking an offset, the federal government may take an offset. (The federal offset formula, contained at 42 U.S. Code Sec. 424a – Reduction of disability benefits, is somewhat different than Florida’s workers’ compensation formula.)

While the claimant is receiving periodic workers’ compensation indemnity payments and the carrier is taking the offset, it is unlikely the Social Security Administration (SSA), which administers SSD, is entitled to an offset. However, most Florida workers’ compensation cases resolve with a lump sum washout settlement resulting in the termination of periodic payments. Surprisingly, at this point, the SSA is eligible to begin taking offsets. (The SSA offset applies even when the WC claimant does not qualify for SSD until after a settlement. Additionally, where the SSA had the right but failed to take the offset, resulting in “overpayments,” the SSA may recover the overpayments.)

May 1, 2022

Jeffrey P. Gale, P.A. // Exculpatory Clauses Place Florida School Children at Risk

by Jeffrey P. Gale, P.A.

One of the main goals behind holding individuals and corporations accountable for the damage caused by their negligence is to make society a safer place. The thinking is that to avoid the substantial hassle and expense of lawsuits and damage awards, thoughtful people will act reasonably.

An exculpatory clause purports to deny an injured party the right to recover damages from the person negligently causing his injury. Elalouf v School Board of Broward County, 311 So.3rd 863, 865 (Fla. 4th DCA 2021). Exculpatory clauses are commonly used against children in Florida’s public and private schools.

April 30, 2022

Jeffrey P. Gale, P.A. // Florida Tortfeasors Do Not Benefit From Negotiated Subrogation Waivers

by Jeffrey P. Gale, P.A.

Liability insurance carriers pursue every avenue to limit the amounts they must pay in damages to harmed parties. One avenue at their disposal is Florida Statute 768.76(1):

In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.

768.76(2)(a) defines “Collateral sources” as follows:

(a) “Collateral sources” means any payments made to the claimant, or made on the claimant’s behalf, by or pursuant to:

1. The United States Social Security Act, except Title XVIII and Title XIX; any federal, state, or local income disability act; or any other public programs providing medical expenses, disability payments, or other similar benefits, except those prohibited by federal law and those expressly excluded by law as collateral sources.

2. Any health, sickness, or income disability insurance; automobile accident insurance that provides health benefits or income disability coverage; and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by her or him or provided by others.

3. Any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the costs of hospital, medical, dental, or other health care services.

4. Any contractual or voluntary wage continuation plan provided by employers or by any other system intended to provide wages during a period of disability.

Interestingly, under 768.76(2)(b), “Medicare, or any other federal program providing for a Federal Government lien on or right of reimbursement from the plaintiff’s recovery, the Workers’ Compensation Law, the Medicaid program of Title XIX of the Social Security Act or from any medical services program administered by the Department of Health shall not be considered a collateral source.”

Subpart (2)(b) is there to make it clear that the enumerated programs have a right of subrogation or reimbursement. However, as suggested by the second clause of subpart (1), there can be other entities that have paid compensation to the benefit of the claimant with the right of subrogation or reimbursement. The most common of these are health and disability insurance carriers.

FLORIDA INJURY ATTORNEY BLAWG