Florida Injury Attorney Blawg

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.)

Continue reading "Florida Workers' Compensation Permanent Total Disability (PTD) Benefits" »

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.

Continue reading "Pharmaceutical Malpractice (Florida) - Botox Maker to Pay $600 Million In Settlement " »

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

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.

Continue reading "Refractive Surgery (Lasik, PRK, Lasek, CK) Malpractice Litigation in Florida" »

Most work-related injuries are caused by accidents. Absent the accident being the result of horseplay or done purposely by the injured worker, injuries caused by a single event should be compensable under Florida's workers' compensation system.

Are injuries caused by repetitive trivial trauma over an extended period of time compensable? Yes, so long as the injured worker can show all of the following: (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, for a preexisting condition to be compensable, added that the condition must be exacerbated 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. is based on "clear and convincing evidence," rather than the lower standard of "preponderance of the evidence." "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 that 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. After years of performing this routine, she 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.

Continue reading "Repetitive Trauma Injuries Under Florida's Workers' Compensation System" »

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.

Continue reading "Pleading the 5th Amendment in Florida Civil Cases" »

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.

Continue reading "Forklift Accidents in the Workplace - Florida Workers' Compensation & Civil Law" »

Federal law requires all cars sold [to the public] in the United States to meet the Federal Motor Vehicle Safety Standards (FMVSS). It sounds good, but it's not.

The FMVSS are minimum standards for vehicle safety. Many of the standards applicable today were issued in the 1960s and 1970s, cover only a limited number of car safety and performance aspects, and manufacturers are allowed to self-cerfity compliance (in contrast to the approval of new drugs by the FDA, which has demanding requirements before drugs can be put into the hands of consumers), while the creation of better standards is subject to political pressure, with rule making through the National Highway Traffic Safety Administration (NHTSA) being a quasi-legislative process. Changes, if any, come in tiny increments at a snail's pace.

In concept, market forces were expected to encourage manufacturers to produce vehicles that exceeded the minimum safety standards. Sadly, this has not occurred with enough frequency and consistency to be considered a success story. Rather than battle for a competitive advantage, most manufacturers settle for the least common denominator in safety and performance.

Continue reading "PRODUCT LIABILITY - Federal Car Safety Standards Are Inadequate" »

In its infinite wisdom (sarcasm intended), the Florida Legislature, in 2003, placed arbitrary caps on the amount of money persons harmed by medical negligence may recover for noneconomic damages. (Noneconomic damages are defined in Florida Statute 766.202(8) as follows: "Noneconomic damages" means nonfinancial losses that would not have occurred but for the injury giving rise to the cause of action, including pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of capacity for enjoyment of life, and other nonfinancial losses to the extent the claimant is entitled to recover such damages under general law, including the Wrongful Death Act.) This blog will attempt to summarize the caps, as set forth in Florida Statute 766.118:

IF THE NEGLIGENCE IS COMMITTED BY A "PRACTITIONER" ("Practioners" include MDs, DOs, chiropractors, podiatrists, naturopathists, optometrists, dentists, midwives, physical therapists and nurse practioners as well as their employers (i.e. hospitals, private practice groups). See 766.118(1)(c)):

• For personal injury: $500,000 per claimant, regardless of the number of practitioner defendants, and no practioner shall be liable for more than $500,000, regardless of the number of claimants.
• For negligence resulting in a permanent vegetative state or death: $1,000,000 is the total amount recoverable from all practitioners, regardless of the number of claimants.
• In cases that do not involve death or permanent vegetative state, if the trial court determines that the patient has sustained a catastrophic injury and the noneconomic harm sustained by the injured patient was particularly severe: $1,000,000 total by all claimants from all practitioner defendants.

• Personal injury: $750,000 per claimant regardless of the number of nonpractitioner defendants.
• Permanent vegetative state or death: $1.5 million per claimant.
• In cases that do not involve death or permanent vegetative state, if the trial court determines that the patient has sustained a catastrophic injury and the noneconomic harm sustained by the injured patient was particularly severe: $1.5 million.

Continue reading "Limits on Non-Economic Damages in Florida Medical Malpractice Cases" »

The outcome of the 2010 Florida Governor's race will have a profound impact on the rights of individuals to pursue remedies against big business. Alex Sink will preserve those rights. Rick Scott, of Medicare fraud fame, will work to curtail them.

When Jeb Bush became Florida's Governor, in 1998, Florida politics took a radical (not to be confused with conservative) turn to the right. With Florida's House and Senate chambers controlled by Republicans, draconian laws designed to limit the ability of individuals from obtaining relief through the court system were passed with little resistance. (It was not unusual for these laws to gain passage with little to no Democratic support.) This was the Golden-Period in Florida for big business, the dark days for fairness and justice.

After 8 years of Jeb Bush, Floridian's elected Charlie Crist as its governor, in 2006. He proved to be Jeb-light. Beholden to the radical-right, but kinder than his predecessor, Governor Crist encouraged and signed into law many anti-consumer, anti-individual rights laws, but also vetoed some egregious bills that Jeb Bush would have gladly approved. Compared to Jeb Bush, Crist respected the the rights of individuals.

Emboldened by high approval ratings, when Republican Mel Martinez retired from the U.S. Senate, Governor Crist decided to run for the office. This opened the door to career politician Bill McCollum and political neophyte Rick Scott to seek the Republican nomination as his replacement.

In the year of the Tea Party, Rick Scott pulled off a mild upset in the primary election by defeating McCollum. On the Democratic side, Alex Sink handily won her party's nomination. Hence, the battle lines are drawn: Sink/Individuals v. Scott/Big Business.

Who Floridians elect as their next Governor will determine the type of state Florida will be for generations to come. Will Florida be a state that values and respects the rights of individuals above all else, as in "of the people, by the people, and for the people" (The Gettysburg Address), or will it be a state that places profits over people?

Republicans remain firmly in control of both chambers of the The Florida Legislature. As a group, they are more radically-right than the body in power during Jeb Bush's rule, more determined than ever to prevent big business from being accountable to individuals. If Rick Scott is elected, Florida's legislature will be able to operate without restraint. Every draconian bill passed by the legislature will be rubber-stamped into law by a Governor Scott. Not so a Governor Sink.

One example of the sharp differences between the candidates concerns the duty owed by insurance companies to their policyholders. Candidate Sink believes that insurance companies have a fiduciary duty to act in the best interests of their policyholders. This means that insurance companies must act in good faith to pay legitimate claims in a timely manner. This principle is supported by well-established Florida law. When an insurance company violates the principle, hence, acts in bad faith, it faces serious consequences. These consequences have done more than anything else to keep the insurance industry in line. Because Florida's bad faith laws cut into insurance company profits, Rick Scott wants to eliminate them. (Do not believe the propaganda that payments made by insurance companies for acting in bad faith will be passed on to consumers. Bad faith payments are not allowed to be taken into consideration when determining rate premiums.)

Consider this: Even with strong bad faith laws, it is always a battle to resolve claims fairly with insurance companies. Imagine how much more difficult it will become if the bad faith hammer is taken away from the people. It is not a pretty picture.

Alex Sink, a successful yet compassionate businesswoman, will protect the rights of individuals by proposing positive and helpful legislation, while vetoing negative legislation which is surely to come from our Florida Legislature.

Please click here - ALEX SINK - to learn more about her.

(If Rick Scott's policies aren't enough to scare you, consider this segment: Rick Scott and the 5th Amendment.)

Continue reading "Civil Justice & Florida's 2010 Governor's Race (Sink v. Scott)" »