On April 28, 2016, the Florida Supreme Court, in Castellanos v. Next Door Company, righted a wrong that was thirteen years in the making. The court decided that the due process prescriptions contained in the Federal and Florida constitutions required that the judges who decide workers’ compensation cases be allowed to determine the reasonableness of fees paid to the attorneys of injured workers. Not surprisingly, the right-wing propaganda machine went on the immediate attack against the Florida Supreme Court and the Castellanos decision. Today I woke up to an article published on the subject in my local newspaper, the Miami Herald. The article, Workers-comp rates could jump in Florida, got my ire. Here’s the email I sent to the author of that article expressing my views.
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Dear Mr. Saunders:
I read your article of the above title in today’s Miami Herald. I feel the need to respond to a quote in the article from Associated Industries CEO Tom Feeney, the highly controversial right-wing Republican partisan notorious for his role in the 2000 presidential election fiasco. According to Feeney, the Supreme Court’s opinion permits “unbridled hourly rate attorney fees.” This is utter hogwash. If you read the subject opinion, Castellanos v. Next Door Company, and the workers’ compensation attorney’s fee statute (F.S. 440.34), you will see that the hourly attorney fee rate will be anything but “unbridled.” The long and short of the opinion is that the workers’ compensation judges must be allowed to determine the reasonableness of attorney’s fees.

IMG_2410The legal principle of respondent superior makes employers liable in civil damages for the negligence of their employees.

The typical large-scale construction project is manned by workers employed by many different companies. However, the theories of vertical and horizontal immunity contained in Florida Statute Sections 440.10(1)(b)&(e) exempt construction site employers from respondent superior liability for worker on worker accidents.

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scales of justice.jpgOver the years, but especially since 1998, it has gotten progressively more difficult for workers injured on the job to be fairly compensated under Florida’s workers’ compensation system.  Republican governors (Jeb Bush, Charlie Crist, Rick Scott) backed by Republican-dominated legislatures have made every effort to limit and eliminate workers’ rights. Occasionally, the First District Court of Appeal and the Florida Supreme Court will throw workers a bone, but even they cannot fully contend with the overwhelming onslaught from the executive and legislative branches.

Examples of this point:

Two different types of wage loss benefits are available under Florida’s workers’ compensation system. See Florida Statute 440.15. The line of demarcation between the two is maximum medical improvement (MMI).

“Date of maximum medical improvement” means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability. 440.02(10)

While the injured worker is in the pre-MMI recovery stage, he or she is eligible to receive what is known as temporary disability benefits, either temporary partial (TPD; F.S. 440.15(4) ) or temporary total (TTD; 440.15(2)) depending on work status per the treating doctor or doctors. However, once the employee reaches MMI, eligibility for temporary benefits ends and the only available indemnity (wage loss) benefit is permanent total disability (PTD; F.S. 440.15(1)). (At the point of MMI, the treating doctor is required to assign an impairment rating for permanent injuries. The rating is expressed in terms of a percentage (%), and permanent impairment benefits (F.S. 440.15(3)) are paid thereafter according to the rating. While this is a monetary benefit, it is not an indemnity payment based on wage loss.) Except in rare instances, PTD ends at age 75. Continue reading

barricadeWhile a recent Florida Supreme Court decision has leveled the playing field for injured workers in workers’ compensation cases — read Jeffrey P. Gale, P.A. // Another Jeb Bush Law Bites the Dust — a better remedy can sometimes be achieved through the civil justice system under negligence law principles.

Florida Statute 440.11 immunizes most employers and fellow-employees from being sued for simple negligence, limiting the remedies available to injured workers to those outlined in Chapter 440, Florida Statutes, Florida’s body of workers’ compensation laws.

‘”[S]imple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons . . ..”‘ Carraway v. Revell, 116 So. 2d 16, 22 (Fla. 1959) (quoting Bridges v. Speer, 79 So. 2d 679, 682 (Fla. 1955)).

The two jurisprudential systems, negligence and workers’ compensation, provide very different remedies to injured victims. One of the main differences is that the workers’ compensation system does not compensate for pain and suffering, while the negligence system does. (No Compensation for Pain & Suffering Under Florida’s Workers’ Compensation System.)

Chapter 440 is a no fault system for providing benefits. It was designed to assure  “the quick and efficient delivery of disability and medical benefits to an injured worker.” § 440.015, Fla. Stat. (2009). Even so, its shortcomings are many. Read these blogs:

In spite of these drawbacks, Florida Statute 440.11 usually bars other options.
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scales of justiceOn April 28, 2016, the Florida Supreme Court announced its decision in Marvin Castellanos v. Next Door Company, et al. The case involved a challenge to the constitutionality of Florida Statute 440.34, the law that prescribes the payment of fees to attorneys who represent injured workers.

In 2009, Marvin Castellanos, then forty-six years old, suffered an injury during the course of his employment as a press break operator for Next Door Company. When the employer, and Amerisure, as Next Door’s insurance carrier (collectively, the “E/C”), failed to authorize its own doctor’s recommendations,  Castellanos subsequently filed a petition for benefits, seeking a compensability determination for temporary total or partial disability benefits, along with costs and attorney’s fees. The E/C raised twelve defenses, including 440.09(4) (intentional acts) and 440.105(4)(b)9. (fraud), Florida Statutes (2009), ultimately asserting that Castellanos was responsible for his own injuries.

A final hearing was then held before the JCC, in which numerous depositions, exhibits, and live testimony were submitted for consideration. The Judge of Compensation Claims (“JCC”) ruled in favor of Castellanos, determining, therefore, that he was entitled to recover attorney’s fees and costs from the E/C.

Based on the JCC’s finding of compensability, Castellanos filed a motion for attorney’s fees, seeking an hourly fee of $350 for the services of his attorney. However, constrained by Section 440.34, the JCC awarded a statutory fee of $1.53 per hour.

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worker2Two competing principles have always been at play when determining whether injuries, medical conditions, and death are compensable under Florida’s workers’ compensation system. One of the principles was described by the Florida Supreme Court, in Protectu Awning Shutter Co. v. Cline, 16 So. 2d 342 (Fla., 1944): “The purpose of the act [Chapter 440 Workers’ Compensation] is to shoulder on industry the expense incident to the hazards of industry; … and to ultimately pass on to the consumers of the products of industry such expense.” The other principle was described in General Properties Co. v. Greening, 154 Fla. 814, 18 So.2d 908, 911 (Fla. 1944): “This very valuable statute, [Chapter 440, Florida Statutes] while fulfilling a long standing public need, was not designed to take the place of general health and accident insurance.”

What these competing principles represent is that there must be some industrial causation for an injury or death to be compensable — i.e., only “personal injury or death by accident arising out of and in the course of employment” are covered under Florida’s workers’ compensation system. See§ 440.02(19) Florida Statutes.

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UberUber is an app-based transportation service company. The company arranges for service through private motor vehicle owners.

Naturally, some Uber drivers cause accidents. However, Uber does not require its Florida drivers to maintain bodily injury (BI) liability insurance. (BI is a type of liability insurance which compensates for personal injuries and economic losses caused by an at-fault party.) Moreover, Uber considers itself and its drivers  exempt from §324.032 Florida Statutes, which requires owners or lessees of one or more taxicabs, limousines, jitneys, or “any other for-hire passenger transportation vehicles” to maintain 24-hour commercial liability insurance with limits of $125,000/250,000/50,000. Finally, Uber argues that its drivers are independent contractors, a position which, if correct, would shield Uber from liability for driver negligence. See § 440.02(15)(d) Florida Statutes for a comprehensive statutory definition of “independent contractor.”

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dollarsThe wheels of justice grind exceedingly slowly. It can take years for personal injury and workers’ compensation cases to reach final resolution. In the interim, accident victims often experience extreme financial pressure. The pressure can force victims to compromise their case.

An industry has developed to address the problem. Lawsuit funding companies loan money to victims with the promise of being repaid from proceeds recovered in the case. Some of these companies include:

Funding loans are not traditional loans which are subject to being repaid from any of a borrower’s assets. (This blog will not go into homestead laws and other properties exempt from creditors.) Rather, lawsuit funding loans are limited to being repaid from the case itself. The loan cannot be secured by a home mortgage. The lender cannot seize a bank account. Wages cannot be garnished. For the lender, it’s  the case or bust.

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jackhammerMy first workers’ compensation trial involved having to prove that a herniated cervical spine intervertebral disc was work related. Our elderly female client had assembled mattresses in a warehouse for fifteen years. Once the assembly was complete, she was responsible for stacking them one on top of the other until she could reach no higher. The mattresses ranged in size from small to king size. The stacking was done manually and it was a strain to lift each mattress.

Over time, soreness turned into debilitating pain. When she could work no longer, I was hired. Because the disability occurred gradually, rather than from a sudden event, we fought for compensability under the theory of repetitive trauma.

We won, prevailing not only on compensability, but also on the issue of Permanent Total Disability. I’ve retained a fondness for repetitive trauma cases ever since.

With regard to the issue of compensability, we relied on Festa v. Teleflex, Inc., 382 So. 2d 122 (Fla. 1st DCA 1980). Festa crystalized the law on the subject, establishing that for a claimant to recover under the repetitive theory of accident, he must show 1) a series of occurrences, 2) the cumulative effect of which is injury or aggravation of a pre-existing condition and 3) that he has been subjected to a hazard greater than that to which the general public is exposed. Festa built on Victor Wine and Liquor, Inc. v. Beasley, 141 So.2d 581, 588 (Fla. 1962) and Worden v. Pratt & Whitney Aircraft, 256 So.2d 209 (Fla.1971) (the Florida Supreme Court stated, “The accidental nature of an injury is not altered by the fact that, instead of a single occurrence, the injury is the cumulated effect of a series of occurrences.” Id. at 210.)

Prolonged Exposure. Festa does not impose a minimum threshold; almost any period of time will suffice: Festa involved 45 days; in J & J Enterprises v. Oweis, 733 So.2d 1149 (Fla. 1st DCA 1999), the claimant worked for only two weeks before she experienced the onset of symptoms; Daugherty v. Red Lobster, 550 So. 2d 171 (Fla. 1st DCA 1989), 4 to 5 months of trauma; Brevard County Mental Health Center v. Kelly, 420 So.2d 911 (Fla. 1st DCA 1982), ten days of exposure to chemicals (chemical exposure cases apply the same principles); see, also, Moore v. Pasco County Board of Commissioners, 854 So. 2d 256 (Fla. 1st DCA 2003).

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worker2The day after Jeb Bush suspended his run for the Republican presidential nomination, I read a quote in the Miami Herald from a South Carolina voter expressing dismay because she believed Bush was a good man who cared about disabled people. My immediate thought was, this woman does not know Jeb Bush … or at least the Jeb Bush who governed the state of Florida for eight years from 1999 to 2007. As Florida’s governor his policies were anything but sympathetic to disabled people.

Clear examples of his uncaring policies are contained throughout Chapter 440 of Florida’s Statutes, the body of laws that govern the state’s workers’ compensation system. At every opportunity, Mr. Bush pushed to weaken the rights and protections afforded injured workers.

This blog focuses on one example, workers’ compensation immunity.

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