greedThis article — Frightened by Donald Trump? You don’t know the half of it — published in theguardian.com, paints a dire picture of what awaits the human race under a Trump Presidency. Civil trial lawyers are all too familiar with the insidious threat discussed in the article.

For more than 30 years, trial lawyers have been the target of these Masters of Misinformation. The Masters have systematically misinformed the public into believing that trial lawyers are the reason for the rising cost of insurance and medical care. One of the bellwether terms used in the misinformation campaign is “frivolous lawsuits.”

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scales of justiceFollowing the Florida Supreme Court’s April, 2016 decision in Castellanos v. Next Door Company, Florida’s workers’ compensation insurance industry quickly mobilized in an effort to obtain approval of a rate increase from the Florida Office of Insurance Regulation. It claimed that a substantial premium rate hike was needed to handle the expected increase in claim costs — in particular, fees paid to claimants’ attorneys — resulting from the decision.

Insurance industry representatives hired National Council on Compensation Insurance (NCCI), a private company authorized to request rate changes, to present its case to the Florida Office of Insurance Regulation (OIR), the regulatory agency responsible for setting insurance rates. OIR ultimately approved a 14.5% rate hike. Problem is, opponents were prevented from fully engaging  in the regulatory process.

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caduceus-1219484-mIn the upcoming healthcare debate, watch carefully for a Republican shell game. In his 60 Minutes interview, Trump professed support for prohibiting insurance carriers from denying coverage for preexisting medical conditions. Left unsaid is whether carriers will be allowed to charge higher premiums based on preexisting conditions, a practice banned under the Affordable Care Act (a/k/a “Obamacare”).

With “Profits Over People” representing a fundamental Republican theological belief, it seems likely that their healthcare plan will allow price gouging on this issue just like before the ACA, essentially making illusory the promise of coverage for preexisting conditions.

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DisabledU.S. President Theodore Roosevelt famously said, Speak softly and carry a big stick.” The meaning of the proverb is that, if necessary, blunt force will be used to compel compliance with reasonable behavior. It works.

In Castellanos v. Next Door Company, the Florida Supreme Court gave injured workers a big stick. It is Section 440.34(3) Florida Statutes.

The Castellanos version of 440.34(3) gives employers and their workers’ compensation insurance companies thirty days (30), a safe harbor period, to provide requested benefits without risking having to pay the injured worker’s attorney’s fees. The risk can be sizeable. Hourly attorney fee rates range from $200 to $400 and complex cases can involve hundreds of hours of legal work.

This threat, the big stick, is usually effective in getting carriers to furnish needed benefits without a fight. Since the value of benefits at stake is often greater than the exposure for attorney’s fees, it makes practical sense for carriers to be cooperative. In the days when injured workers did not have the big stick, it was the policy and procedure of most insurance companies to summarily deny benefits since the adverse consequences of being proven wrong were de minimis.

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voteComplaining now about the 2016 presidential election outcome based on the popular vote vs the Electoral College results is nonsense. It’s like a football team that was outscored arguing that it should be declared the winner because it controlled the clock and gained more yards than the other team. Them ain’t the rules.

For example, just this past Saturday my Florida Gators beat the LSU Tigers by the score of 16-10, even though LSU won the time of possession and yards gained statistics. I’ll take the W over the statistical victory.

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greedWe are all in deep trouble with Trump, right-wingers included, but Congress, especially Republicans, can limit the damage by insisting on decency, honesty and fair-dealing from his administration. This will require principle and backbone, two characteristics in short supply in Republican leaders like Mitch McConnell and Paul Ryan.

It took resolute and honorable Republicans to bring down Richard Nixon. That was a long time ago, during a period when civil discourse and cooperation between the parties was at a much higher level than it is today.

What’s especially frightening is that compared to Trump, Nixon was a decent fellow.

accident-1307665To receive wage loss benefits following an accident, injured workers must demonstrate a connection between the wage loss and their injuries. Wyeth/Pharma Field Sales v. Toscano, 40 So. 3d 795 (Fla. 1st DCA 2010). The most common way of accomplishing this is through medical testimony. Many people believe that it is the only way. It’s not.

Florida’s workers’ compensation system provides for two types of pre-maximum medical improvement indemnity compensation benefits, temporary partial (TP; section 440.15(4) Florida Statutes) and temporary total (TT; 440.15(2)). TP is for employees able to work with restrictions, TT is for employees unable to work.

The workers’ compensation insurance companies get to pick the doctors. Many of these doctors tend to favor the insurance companies in their opinions. One way they help is by limiting restrictions or assigning none at all.

Form DWC-25 is a form completed by the workers’ compensation doctors. Sections 21-23 address work restrictions. Workers’ compensation insurance companies typically refuse to pay indemnity benefits to injured employees who refuse or quit a job that is available within the DWC-25 restrictions.

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worker2Shame on the Miami Herald!

On September 30, 2016 (print) and October 4, 2016 (online), the Miami Herald published an editorial, written by Mark Wilson, president and CEO of the Florida Chamber of Commerce, titled Workers’ comp rate hike will hurt Florida businesses.

Mr. Wilson contends that two recent Florida Supreme Court decisions will cause workers’ compensation insurance premiums to rise, “all for the benefit of billboard trial lawyers.” While it is debatable whether rates will or should increase, there is no question that the decisions were just and proper. Moreover, the true and deserved beneficiaries of the court decisions are injured workers, not “billboard trial lawyers.” Positive results have already been experienced on the ground.

The first case mentioned by Mr. Wilson, Castellanos v. Next Door Company, et al. (Fla., 2016), was decided on April 28, 2016. It involved a challenge to a workers’ compensation statute that made it exceedingly difficult for injured workers to obtain adequate legal representation.

Mr. Wilson fails to present any Castellanos case facts, attempting, instead, to sway unknowing readers with inflammatory and broad brush statements. He does not even give the full case name to make it easier for curious readers to find and read the decision to reach informed conclusions.

Shame on him. Shame on the Miami Herald for providing the forum.

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greedSome catastrophically injured Florida workers qualify for both workers’ compensation permanent total disability benefits (PTD) (F.S. 440.15(1)) and taxpayer funded Social Security Disability (SSD) benefits (42 U.S.C. s. 423).

The compensation rate for PTD is 66-2/3% of the claimant’s average weekly wage (AWW) (440.14) payable bi-weekly until age 75. SSD is paid monthly until converting to Social Security Retirement at full retirement age (age 66 if born after 1942, 67 if born after 1960).

With the exception of government employees, PTD is paid by the private employer or its workers’ compensation insurance company. SSD, a Federal program, is paid from taxpayer dollars.
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crushed vehicleBecause the vast majority of rear-end crashes are caused by the trailing driver, Florida decisional law places a presumption of fault on that driver. See generally Eppler v. Tarmac America, Inc., 752 So.2d 592, 594 (Fla. 2000) (explaining origins of rear-end presumption). However, the presumption is a rebuttable presumption. What this means is that the trailing driver is allowed the opportunity to present evidence of sufficient value to overcome the presumption, but failing this, the beneficiary of the presumption is entitled to judgment as a matter of law. Birge v. Charron, 107 So.3d 350 (Fla. 2012) and Bodiford v. Rollins, So. 3d , 40 FLW D1844 (Fla. 5th DCA 8-7-2015) (as there was no evidence showing that plaintiff Rollins breached any legal duty or failed to use reasonable care, the trial court’s denial of plaintiff Rollins’ motion for judgment notwithstanding the verdict was reversed.).

The “rear-end presumption has never been recognized as anything more than an evidentiary tool that facilitates a particular type of negligence case by filling an evidentiary void where the evidence is such that there is no relevant jury question on the issue of liability and causation,” Birge @ 361. It was “constructed by the law to give particular effect to a certain group of facts in the absence of further evidence.” Gulle v. Boggs, 174 So.2d 26, 28 (Fla.1965) and Clampitt v. D.J. Spencer Sales, 786 So.2d 570, 572-73 (Fla.2001) (same).

In Birge, the passenger of a trailing motorcycle that flipped over when its driver attempted to avoid a rear-end collision, sued the driver of the front vehicle for negligence. In spite of divergent fault evidence concerning the circumstances of the crash, the trial court entered summary judgment for the defendant based on the rear-end presumption. The trial judge ruled, as a matter of law, that the evidence did not rebut the presumption of negligence against the driver of the trailing motorcycle.

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