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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dollarsPrice gouging for medical services is the scourge of personal injury cases. Hospitals are the worst offenders.

By ambulance from the accident scene to admissions for surgery, accident victims wind up in hospitals. The hospital charges are always staggering.

The charges are phony, having no relationship to either costs or value. Average pricing at Florida hospitals is a minimum of 500 percent of Medicare allowable amounts (which amounts to roughly three to four times more than hospitals negotiate as reasonable rates with commercial health insurers).

The gouging is especially problematic in personal injury cases for the uninsured and those with large deductibles or unpaid charges. Large outstanding balances can stand in the way of resolving cases involving low policy limits or of questionable value because of causation issues.

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wheelchair2The defense of Florida workers’ compensation claims under Martin v. Carpenter, 132 So.2d 400 (Fla. 1961) and Florida Statute 440.15(5)(a) are employer/carrier favorites. While similar, the defenses are not entirely alike.

The case and statute deal with misrepresentations made by job seekers concerning medical history. Under Martin, applicants who lie about their medical history can be denied workers’ compensation benefits for otherwise compensable claims when the evidence shows:

  1. Causal relationship between the injury and the false representation;
  2. The employee knew the representation to be false;
  3. The employer relied on the false representation; and
  4. Such reliance resulted in consequent damage to the employer.

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Can a worker injured outside the state of Florida be eligible for Florida workers’ compensation benefits? The answer lies in § 440.09(1)(d), Fla. Stat.:

If an accident happens while the employee is employed elsewhere than in this state, which would entitle the employee or his or her dependents to compensation if it had happened in this state, the employee or his or her dependents are entitled to compensation if the contract of employment was made in this state, or the employment was principally localized in this state. However, if an employee receives compensation or damages under the laws of any other state, the total compensation for the injury may not be greater than is provided in this chapter.

Key elements for Florida jurisdiction:

  1. The contract of employment was made in Florida; or
  2. The employment was principally localized in Florida.

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dollarsAn employee injured or killed in the course of his or her employment by the negligence or wrongful act of a third-party tortfeasor may receive workers’ compensation benefits and pursue a remedy by action at law against such third-party tortfeasor. (Where the employee has been killed, the third-party action will be handled through the decedent’s estate by a court appointed Personal Representative.)

Pursuant to Florida Statute 440.39, if the employee or his or her dependents accept workers’ compensation benefits, the employer or its workers’ compensation insurance company shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid. This is known as the workers’ compensation lien.

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