December 2010 Archives

December 30, 2010

Wage/Income Loss Claims for "Illegal Immigrants"/Undocumented Workers in Florida Personal Injury and Workers' Compensation Cases

worker.jpgThe question often arises in Florida as to whether undocumented workers can be compensated for lost wages (past and future) in personal injury and workers' compensation cases. With few exceptions, the answer appears to be No.

Although the damages available in workers' compensation and personal injury cases may differ, both offer elements of awards for lost wages. Proving entitlement requires showing that the lost wages are related to the injuries. However, the employer (wc) and defendant (pi) may nullify the proof by establishing that the claimant is prohibited from working in the United States due to immigration issues. In other words, an immigrant who is not authorized to work in the United States, cannot be compensated under Florida law for lost income resulting from an accident.

The two primary exceptions in workers' compensation cases are (1) the employee is totally, as opposed to partially, unable to work because of his injuries, and (2) the employer knew or should have known of the employee's status as an unauthorized alien prior to the disabling accident. (The law of Florida does not impose on an employer the burden of verifying forged or borrowed green cards - Florida Statute 448.09 - nor is there any such federal requirement.)

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December 24, 2010

Debunking The Myth About Frivolous Lawsuits (Florida) - Installment #2

In installment #1 of this series of blogs addressing the myth regarding frivolous lawsuits, I tried to debunk the myth through common sense by noting some of the practical considerations that make handling baseless cases untenable for lawyers. In other words, practical considerations alone work against the notion that frivolous lawsuits are a staple of the legal system.

In this blog, I will try to debunk the myth further by discussing actual laws and rules that are designed to eliminate and prevent baseless lawsuits.

Very few cases are not defended. Those not defended typically involve parties who are without money or insurance to mount a defense or pay a judgment, making it a complete waste of time and money bothering to obtain the judgment. Anyone bringing suit against such a defendant may end up with a piece of paper, the final judgment, establishing that money is owed. That piece of paper and $1.00 will get the owner of the final judgment a cup of coffee. In other words, in most instances the final judgment is worthless.

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December 23, 2010

Florida Workers' Compensation - Out Of State Accidents

Many scenarios arise that bring into question the applicability of Florida's workers' compensation system for accidents that occur in other states. The general rule is that a worker injured outside of the state is eligible for Florida's workers' compensation benefits if:

(1) The employer and the employee entered the contract of employment in Florida; or
(2) If the principal location of the employment is in Florida.

(Only one of the two elements must be met, not both.)

The statutory language, located at 440.09(1)(d), reads as follows: "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."

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December 20, 2010

"Disloyal Opposition"

I agree with the observations, reproduced below, of one Harry Rosenzweig, whose letter was published by The Miami Herald on 12/19/10:

DISLOYAL OPPOSITION

Blaming President Obama for the financial crisis and deficit is delusional propoganda. He inherited this mess and saved us from a far deeper crisis. Further, it is the stated purpose of the "disloyal" opposition to stonewall Obama toward a failed presidency, nation be damned, in their effort to return to political power and the fox-in-the-henhouse policies that brought us to the brink. We are careening toward a government of, by and for the largest corporations and the wealthy. It's a tragic and concerted effort to destroy our once great nation.

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December 14, 2010

Dangerous Products

From time to time, I will list in this blog recent important information regarding manufactured products used by American consumers. Today's entries:

Darvocet and Darvon: Popular prescription pain medications, go by the generic name propoxyphene. FDA studies show that the drug puts patients at risk of potentially serious or even fatal heart rhythm abnormalities. Propoxyphene is an opoid. Safety concerns were raised as early as 1978. Warnings were placed on boxes in 2009 of the dangers of overdoses. Now, the manufacturer, Xanodyne Pharmaceuticals, Inc., has agreed to withdraw the drug from the U.S. market.

DePuy Hip Replacement Parts: Some component parts in the DePuy Hip replacement system are feared to be the cause of a high rate of repeat surgies in those who have received the parts. Johnson & Johnson and DePuy Orthopaedics, its subsidiary, have announced that it is recalling the parts.

EBIce Cold Therapy: This is a cryo-therapy ("Cold Therapy") device typically prescribed by orthopedists and podiatrists after a surgical procedure. Poor use instructions have resulted in serious nerve and skin damage similar to frost bite.

Fosomax: Manufactured by Mreck, this is a class of drugs called bisphosphonates. It is commonly used in tablet form to prevent and treat osteoporosis in post-menopausal woman. The Journal of Oral and Maxillofacial Surgeons recently reported a link between bisphosphonates and serious bonce disease called Osteonecrosis of the Jaw (ONJ), a disfiguring and disabling condition of the jaw bone that causes infection and rotting of the jaw bone.

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December 13, 2010

Debunking The Myth About Frivolous Lawsuits (Florida) - Installment #1

Without knowing any better, one might believe that most lawsuits are frivolous. This is a popular message in American society spread through ignorance and deceit. The truth reveals a different reality.

Through my blog, I will attempt to debunk through facts and reason this false notion regarding lawsuits. It will be undertaken in multiple installments.

The first thing to understand is that, for the past 30 years, big business has made a concerted effort to undermine the integrity of the civil justice system. The reason why is simple: Profits over people.

The civil justice system is the best vehicle an individual in our society has of holding a much stronger corporation accountable for wrongdoing. When the system works as designed by our Founding Fathers, powerful companies can be made to answer to judges and, more importantly, jurors.

Not happy with being held accountable, big business has undertaken a campaign to undermine the integrity of the civil justice system. In addition to the creation of laws making it more difficult for individuals to pursue claims, big business has developed a successful propoganda machine designed to pollute the minds of our citizenry against individuals who bring claims against companies.

Hardly an adult in America has not heard the expression "Frivolous Lawsuit." Unfortunately, nearly every potential juror has been tainted with the false concept, some of whom are downright hostile against individuals who would sue a company. It a classic counter intuitive response: Everday Americans reflexively siding with big business over "We, the People." Sad but true.

Big business is patting itself on the back for successfully turning individuals against their own best interests. They are laughing at you and me for being such fools.

In Florida, the minimum cost to file and serve a lawsuit on a single party is nearly $500. $500 is $500, not small change to most people, especially nowadays, including lawyers and law firms. Add in the fixed costs of rent, supplies, and salaries and the cost of filing a lawsuit approaches upwards of $1,500-$2,000. (This does not include, for example, the requirement in medical malpractice cases of obtaining an expert opinion before filing suit, which, depending on the complexity and seriousness of the case, can easily cost more than $5,000, or the practical need in other cases to obtain an expert's knowledge before filing suit.)

The point is, it takes a significant amount of time, energy, and money to get a case off the ground. This is all without any guarantee whatsoever of being paid penny one in the case, even the strongest case. That's right, contrary to the false ideas spread by the propogandists and those who have been duped into believing their garbage, the mere fact of filing a lawsuit does not assure a recovery. What it does guarantee is a knock-down, drag-out fight. I liken the consequence of filing a lawsuit to being on the back of an angry bull as it leaves the cage with the sole intent of bucking the rider off its back. Hold on tight and expect a rough ride.

Given the significant initial expense of filing suit and the uncertainty of success, does it make sense that lawyers make a practice of filing baseless (i.e., "frivolous") claims? Not in the common sense world in which I try to live.

Stay tuned for more installments.

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December 11, 2010

Florida Workers' Compensation Lost Wages Benefits

Florida's workers' compensation system contains many different types of wage loss benefits. Each is unique in scope and character. They are:


  • Temporary total disability (TTD; 440.15(2)): Unable to work prior to maximum medical improvement (MMI)

  • Temporary partial disability (TPD; 440.15(4)): Able to work with restrictions

  • Impairment benefits (IB): Based on medical impairment rating upon reaching MMI

  • Permanent Total Disability (PTD; 440.15(1)): Unable to perform substantial gainful employment after reaching MMI. (See blog.)

  • Retraining: While being retrained in a certified program. (440.491) (See blog.)

Other monetary benefits that may be available to injured workers include:
If you have questions about any of these benefits, contact our office for a free, confidential consultation.

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December 9, 2010

Doctor Selection Under Longshore and Harbor Workers' Compensation Act (LHWCA)

33 U.S.C.A. 907 provides that employers are responsible for furnishing medical care to LHW for so long as the nature of the injuries and process of recovery may require. This sounds good for injured workers, but doesn't always work out that way.

The key to the successful medical outcome for any injured longshore and harbor worker is the quaility of care provided. Sadly, successful recovery is not always an employer's primary concern. Often, limiting claim costs is the foremost concern. When this is so, the quality of medical care may be compromised.

Under the LHWCA, injured workers are entitled to medical care and, in most cases, some wage loss benefits. The extent of those wage loss benefits is largely determined by the medical opinions given by the treating doctor(s).

Doctors closely aligned with employers and their insurance carriers have a tendency or inclination to give opinions favorable to the employers and carriers. When in doubt, their decisions favor employers and carriers.

Our law firm does not approve of this mentality. We believe that medical providers should act with the patient's best interest in mind, rather than the employer/carrier's.

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December 6, 2010

Florida Public Utililty Companies (e.g., FPL) and Medically Essential Electric Service

Florida Statute 366.15 addresses the issue of medical dependence on electric-powered equipment and public utility companies. Unfortunately, the statute appears to be a toothless tiger.

Many Floridians who live in private residences are dependent on electric-powered equipment that must be operated continuously to avoid the loss of life or immediate hospitalization. Not infrequently, the money to pay for the electric service to power the life support equipment is not always readily available.

One might conclude from reading the statute that public utility companies must overcome numerous procedural hurdles in order to disconnect service to individuals in need of "medically essential" electric-powered equipment. For example, the statute speaks in terms of prior notice to the customer and providing information regarding funding sources to pay electric bills. However, the last paragraph of the statute, which provides as follows, sends a somewhat different message: (11) Nothing in this act shall form the basis for any cause of action against a public utility. Failure to comply with any obligation created by this act does not constitute evidence of negligence on the part of the public utility.

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December 3, 2010

Florida Legislature Targets Enhanced Injury Law

In the November, 2010 election, Republicans gained additional seats in the Florida House and Senate, making their previous solid majorities even stronger. Combined with the election of pro-big business Republican Governor Rick Scott, individuals should expect to see their rights at seeking redress from large corporations dramatically curtailed.

One of the first orders of business for the Republican legislature will be to eliminate the "enhanced injury" doctrine. As I discussed in a previous blog, the enhanced injury doctrine is a principle of law that allows civil courts to hold corporations accountable for damages caused by their negligence that exceed the damages due to the initial fault. A clear and simple example of the principle in application comes from the seminal case on the doctrine, D'Amario v. Ford Motor Company, 806 So.2d 424 (Fla. 2001). D'Amario involved a minor passenger in a vehicle that struck a tree. Following the impact, a fire began that ended in an explosion, causing the minor to lose three limbs and suffer burns to much of his body. The minor and his mother sued Ford alleging that a defective relay switch in the automobile caused the fire. They alleged that but for the defective switch, the fire would not have started and the minor's injuries would have been limited to those from impacting the tree. Consistent with the enhanced injury doctrine, they limited their claim for damages to those caused by the fire. The case went to trial and was ultimately appealed to the Florida Supreme Court. The Supreme Court held Ford Motor Company responsible for the enhanced injuries, thus establishing the doctrine.

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