doctorCivil disputes arising from death due to negligence are governed by statutes 768.16-768.26, known as the “Florida Wrongful Death Act.” Section 768.17 sets forth the legislative intent of the Act:

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.”

In all fairness, section 768.17 should read as follows:

With the exception of cases involving medical negligence, it is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.” (Language in bold added to make the point of this blog.)

Consider these scenarios:

Scenario No. 1:

Sixty five year old Tom was killed when his vehicle was struck from behind by a Coca Cola truck. Single, he is survived by two adult children over the age of 25. Tom’s children filed suit against Coca Cola and settled the case for a substantial sum of money. Most of the money was paid as compensation for their immense pain and suffering.

Sixty five year old Dick died on the operating table due to a surgeon’s negligence. Single, he is survived by two adult children over the age of 25. Because of an exception contained in Florida’s Wrongful Death Act, Dick’s children did not have a right to be compensated for their immense pain and suffering. The negligent surgeon was able to walk away scot free.

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calculatorFlorida workers injured in the course and scope of their employment may end up receiving simultaneously both workers’ compensation indemnity (money) benefits under Florida Statute 440.15 and Social Security Disability benefits under 42 U.S.C. s. 423. When this happens, Federal law and Florida law provide that the combined benefits shall not exceed 80 percent of the claimant’s pre-disability earnings. See 42 U.S.C. s. 424a and s. 440.15(9)(a).

The Federal law authorizes each state to enact legislation permitting employers and their workers’ compensation insurance companies (“E/C”), rather than the Social Security Administration, to take the offset. Regnier v. Department of Labor & Indus. of Wash., 110 Wash.2d 60, 749 P.2d 1299, 1300-01 (1988) (en banc). Florida has enacted such “reverse offset” legislation. See section 440.15(9), Florida Statutes.

Injured workers’ lawyers are entitled to fees for services rendered in obtaining 440.15 indemnity benefits. Where there is no basis for the E/C to pay the fees, the Judge of Compensation Claims (“JCC”) may order that the fees be withdrawn from the claimant’s periodic workers’ compensation indemnity payment.

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calendar-1192688-300x230Workers’ compensation employers and carriers (“E/C”) “shall furnish to the employee … medically necessary remedial treatment, care and attendance….” See s. 440.13(2)(a), Florida Statutes.

440.13(1)(k) defines “medically necessary” as follows:

“Medically necessary” or “medical necessity” means any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature.

Unless medical necessity is established by operation of law, it is the Claimant’s burden to prove medical necessity. Medical necessity by operation of law arises if E/C fails to respond to a written request from an authorized health care provider for additional medical care or services within the time periods allowed in sections 440.13(3)(d) and (i). See Elmer v. Southland Corp. 17-11, 5 So.3d 754, 756 (Fla. 1st DCA 2009); see also Pearson v. BH Transfer, 163 So. 4d 1280 (Fla. 1st DCA 2015) (The medical provider’s written request can be attached to a Petition for Benefits.)  Section 440.13(3)(d) applies only to requests from doctors for referrals to other doctors and not to requests by employees. Wal Mart Stores, Inc. v. Mann, 690 So.2d 649 (Fla. 1st DCA 1997). When one health care provider refers an employee to another health care provider for treatment, section 440.13(3)(d) applies. See Wuesthoff Mem’l Hosp. v. Schmitt, 694 So.2d 145, 145 (Fla. 1st DCA 1997).

A carrier must respond, by telephone or in writing, to a request for authorization by the close of the third business day after receipt of the request. A carrier who fails to respond to a written request for authorization for referral for medical treatment by the close of the third business day after receipt of the request consents to the medical necessity for such treatment. All such requests must be made to the carrier. Notice to the carrier does not include notice to the employer.

Section 440.13(3)(i) applies to requests “for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, X-ray examinations, or special diagnostic laboratory tests that cost more than $1,000 and other specialty services that the department identifies by rule….”

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calculatorThe Florida Legislature meets yearly in Tallahassee, the State’s Capitol, to craft new legislation during a two month session. In an annual tradition, Republican legislators set its sights on reducing the quantity and quality of workers’ compensation benefits available to injured workers. Since 2016, those legislators have been unable to argue that workers’ compensation insurance premiums are on the rise.

As in recent years past, the National Council on Compensation Insurance, Inc. (“NCCI”), a rating organization authorized to make rate filings on behalf of workers’ compensation insurance companies in Florida pursuant to Section 627.091(4), Florida Statutes, has proposed a decrease in the overall rate level on new and renewal policies. On August 27, 2020, it proposed a 5.7% reduction to the Florida Office of Insurance Regulation. Following a review of the data and public comments, the Office of Insurance Regulation ordered a 6.6% reduction, a difference of nearly 14%. The reduction shall become effective January 1, 2021.

Despite this good news, Republican legislators are still expected to challenge the rights of injured workers. One of their favorite tactics is to prevent lawyers who represent injured employees from being reasonably compensated for their efforts. With the help of then Governor Jeb Bush, this goal was accomplished in 2002. It took 13 years for the Claimant’s bar to level the playing field.

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calendar-1192688-300x230This memo was written for an upcoming workers’ compensation trial. The key issue in the case is whether Florida’s “120-Day Rule” (F.S. 440.20(4)) will preclude the Employer/Carrier from denying the compensability of a number of claimant’s injuries and medical conditions. If the answer is Yes, the Claimant should be awarded Temporary Partial Disability Benefits (F.S. 440.15(4).

 

CLAIMANT’S TRIAL MEMORANDUM PURSUANT TO RULE 60Q-6.116(7)

      COMES NOW the Claimant, by and through his undersigned counsel, and files this, Claimant’s Trial Memorandum Pursuant to Rule 60Q-6.116(7):

POSTURE OF THE CASE

  1. Final Hearing is scheduled for November 30, 2020.
  2. The only claim to be heard at the Final Hearing is TPD from March 9, 2019 to April 21, 2020.
  3. E/C’s defenses[1] are:

All TPD due or owing. The claimant has reached overall MMI, with a 0% PIR, and no restrictions, three months following the date of accident per the opinion of E/C IME Dr. Fernandez.

Based on the opinions of Dr. Fernandez and the February 5, 2019 MRI report, the claimant has suffered an intervening trauma that has broken the causal chain. Thus, the MCC of the need of any future medical treatment or loss of earning is not the July 19, 2016 industrial accident.

  1. Claimant replied to E/C’s defenses as follows (ID102):

Contrary to E/C’s unsubstantiated assertion, the claimant has not “reached overall MMI, with a 0% PIR, and no restrictions”; (2) E/C’s IME doctor limited his MMI, PIR, and restrictions opinions to a Grade I ankle sprain. He failed to express opinions on these subjects with regard to the claimant’s many other compensable injuries, as determined by Kenneth Hodor, M.D., claimant’s authorized orthopedist, and for which E/C has been providing benefits since on or about March 26, 2019. Accordingly, this is the only compensable injury for which there can possibly be a difference of opinion between E/C’s IME doctor and Dr. Hodor, thus limiting the scope of the EMA’s opinions regarding MMI, PIR, and restrictions to the Grade I ankle sprain only; (3) By virtue of the “120-Day Rule”, E/C has waived any right it may have had to contest that claimant’s injuries, as determined by Kenneth Hodor, M.D., including those revealed by the February 5, 2019 right ankle MRI, arose out of, and occurred within the course and scope of the claimant’s employment. Therefore, E/C should be estopped from defending the claim for TPD by challenging the compensability of claimant’s injuries.

Neither legally nor factually has the claimant “suffered an intervening trauma that has broken the causal chain.” In actuality, E/C’s “intervening trauma” defense is a preexisting condition defense, albeit one without a factual basis, under § 440.09(1)(b), Fla. Stat.; (2) By virtue of the “120-Day Rule”, E/C has waived any right it may have had, whether based on the theory of “intervening trauma” or of a preexisting condition, to contest that claimant’s injuries, as determined by Kenneth Hodor, M.D., claimant’s authorized orthopedist, arose out of, and occurred within the course and scope of the claimant’s employment. Therefore, E/C should be estopped from defending the claim for TPD by challenging the compensability of claimant’s injuries; (3) E/C has interjected an issue – “the MCC of the need of any future medical treatment” – which has not, heretofore, been at issue, and is not presently at issue. E/C has not denied any medical care, therefore, claimant has not had the need to file a claim for authorization of medical care. As no such claim is presently ripe for adjudication, the Pretrial Stipulation does not include any claim for same. Claimant does not consent to trying this issue at the upcoming Merit Hearing.

FACTS

  1. The Accident. Claimant stepped into a hole with his right foot. He twisted his right ankle, lost his balance and fell onto his side. E/C accepted compensability of the workplace accident.
  2. E/C authorized these medical providers as primary care physicians:

Port of Miami Medical Clinic/Irwin M. Potash, M.D.

Ortho Assoc. of South Broward/Dr. Steven Steinlauf

Kenneth R. Hodor, M.D., P.A./Kenneth R. Hodor, M.D.

  1. Dr. Potash last saw the Claimant on August 2, 2016. Dr. Steinlauf saw the Claimant once, on September 7, 2018. He noted that the Claimant had an antalgic gait on the right. He administered an injection in the right ankle and provided the Claimant with an AFO brace and an ankle support brace. Dr. Hodor was authorized and has seen the Claimant a total of seven (7) times, from January 29, 2019 to April 29, 2020. He remains authorized. From the first appointment to the last, Dr. Hodor has opined that the Claimant has functional restrictions and is not at MMI as a result of injuries sustained in the industrial accident.
  2. On the first examination, Dr. Hodor found an increase in girth on the right foot as compared with the left, a right antalgic gait, and tenderness in the right foot that was not present in the left. Right ankle x-rays performed that day revealed areas with degenerative changes. Dr. Hodor reported to the carrier that “the work related injury is the major contributing cause of the onset of the current symptoms in the right lower extremity.” His DWC-25 diagnosis is: “719.07 R Post tibial tendinitis.” He felt that a trial of anti-inflammatories was reasonable and necessary. Transdermal gel was provided. He also prescribed a course of therapy to the right ankle. He ordered an “MRI of the right ankle to rule out a partial tear of the posterior tibial tendon and/or any evidence of loose bodies.” Restrictions of minimize repetitive climbing stairs and ladder and squatting over the right ankle were imposed.
  3. E/C authorized the MRI, pharmaceuticals, and physical therapy. The MRI was performed on February 5, 2019. The findings were reported as follows:

Tear of the anterior talofibular and anterior tibiofibular ligaments.

Sprain of the posterior talofibular and posterior tibiofibular ligaments.

Sprain with partial tear of the calcaneofibular and deltoid ligaments.

Bone marrow edema pattern suggesting bone bruise of the medial malleolus and adjacent medial aspect of the talus.

Peroneus brevis and longus tendinosis.

Distal posterior tibialis tendinosis.

Instrasubstance longitudinal partial tear and focal plantar tear of central slip of the plantar fascia.

Tibiotalar joint effusion with posterior superior capsule ganglion.

Tibiotalar joint marginal osteophytes, subchondral remodeling and cartilage thinning.

  1. In Claimant’s first follow up appointment, on March 26, 2019, Dr. Hodor read the MRI report and images. He reported the MRI images as demonstrating “multiple abnormalities including the following: 1) tear of the anterior talofibular ligament with reactive edema; 2) a high signal was noted within the posterior talofibular ligament consistent with a sprain; 3) tear of the anterior tibiofibular ligament with reactive edema; 4) sprain of the posterior tibiofibular ligament; 5) sprain with partial tear of the calcaneofibular ligament; 6) sprain with partial tear of the deltoid ligament and again adjacent reactive edema and bone marrow edema in the adjacent medial malleolus and adjacent talus. There was noted to be an intact spring and bifurcate ligament.” He also interpreted the MRI images as showing: “a high signal and thickening of the peroneus brevis and longus tendons of the distal to the lateral malleolus consistent with tendinosis. There was a prominent peroneal tubercle and a high signal evident with the distal insertional posterior tibial tendon at and proximal to its insertion at the navicular/medial cuneiform, again reflecting tendinosis.” Dr. Hodor reported that Clamant continued to demonstrate an antalgic gait on the right and “fullness or swelling about the right ankle compared with the left.” The same restrictions as before were maintained. His handwritten DWC-25 diagnoses is “Varus Arthritis R ankle; tears of multiple ligaments ATFL PTFL; tearing anterior tibio-fibular, sprain of posterior tip-fib lig, partial tear unable to decipher lig.”He prescribed physical therapy for Claimant’s “R Ankle/Foot” and pharmaceuticals. He indicated that the injuries were the major contributing cause for the treatment recommendations and functional limitations and restrictions. E/C authorized the prescriptions.[2]
  2. Hodor next saw the Claimant on May 7, 2019. In his typed report of this date, he informs E/C that Claimant “does have varus ankle arthritis which certainly preceded his injury but has been aggravated by it. He is going to continue with physical therapy and I will see him again in 6-8 weeks. There has been no change in his work status.” His DWC-25 diagnosis is: “719.07 R Post tibial tendinitis.” PT and pharmaceuticals are prescribed. Dr. Hodor advises E/C that the “Injury/Illness for which treatment is sought is work related. E/C authorizes everything.
  3. In the June 18, 2019 appointment, Dr. Hodor advises the Claimant to avoid “any impact type activities” and to use his ASO brace. He again informs E/C that the reason for the medical treatment is work related. His DWC-25 diagnosis is: “R 719.07 Posterior tibial tendinitis R.”
  4. In the next appointment, on August 20, 2019, Dr. Hodor elicited tenderness and detected soft tissue fullness. He decided to write a prescription for a Vector ankle/foot orthotic brace “to see whether that may give him some additional support.” The handwritten DWC-25 diagnosis, which I am unable to decipher in full, includes at least two ligament tears. E/C authorized the brace. Claimant’s work restrictions remain the same and he is still not at MMI.
  5. On February 19, 2020, now more than one year after his first appointment with Dr. Hodor, Claimant’s examination continued to “reveal evidence of fullness posteromedially,” tenderness, and “restricted hindfoot mobility.” Dr. Hodor reminds E/C of his previous diagnosis of “tenosynovitis of the posterior tibial tendon on the right superimposed on his varus osteoarthritis of the right ankle,” and notes the ligament tearing demonstrated in the February 5, 2019 MRI. His DWC-25 diagnosis is: “R Ankle Synovitis; R Ankle Varus Ankle arthritis.” Claimant’s medications are renewed. Dr. Hodor indicates that the need for the medical treatment is work related. Claimant’s work restrictions remain the same and he is still not at MMI.
  6. Dr. Hodor last examined the Claimant on April 29, 2020. X-rays were performed. In his typed report to E/C, Dr. Hodor writes: “As noted, his prior MRI showed multiple ligament injuries.” Ongoing therapy is prescribed to his ankle and it is recommended that Claimant be fitted for a “custom device for his shoe once we have to order this and get him fitted when the pandemic allows.”
  7. Dr. Hodor was deposed on April 20, 2020. This is the first time anyone acting on E/C’s behalf asked Dr. Hodor questions about the case. In Dr. Hodor’s opinion, the February 5, 2019 MRI demonstrates that the ligaments supporting both sides of the right ankle, the medial or inner side of the ankle and the lateral or outer side of the ankle, were torn and stretched in the accident, resulting in “a disbalance of muscular tendinous forces in the ankle.” He described this as “an acute injury superimposed on pre-existing degenerative changes.” In his words, “[T]here [are] a lot of interacting pathologies going on in … this patient,” including “a muscle and bone imbalance situation” and reactive edema. He went on to say that the “torn ligaments aren’t going to resolve, they’re scarred out.” Dr. Hodor also opined that the accident has caused the underlying Varus Arthritis to progress more rapidly. Finally, Dr. Hodor explained that if conservative care, consisting of physical therapy, anti-inflammatories, and a custom orthotic fail to achieve satisfactory results, surgery in the form of “an arthrodesis of the foot and ankle or a triple arthrodesis, which is a big operation,” might be indicated. On a cross examination question from E/C’s attorney, Dr. Hodor answered that if surgery has to be performed, “It’ll be greater than 51% related to the injuries he sustained.” As of the date of the deposition, the Claimant was not at MMI and he continued to have functional restrictions.

DISCUSSION

  1. E/C owns all of the injuries and conditions diagnosed and treated by Dr. Hodor. E/C’s intervening trauma defense does not relieve it of this obligation. In North River Ins. Co. v Wuelling, 683 So. 2d 1090 (Fla. 1st DCA 1996) (en banc), the Court held that an E/C which pays compensation or intentionally provides benefits, but fails to deny compensability within the 120 days provision set forth in section 440.20(4), Florida Statutes, waives the right to contest that an injury “arose out of, and occurred within the course and scope of the claimant’s employment.” North River at 1092; see also s. 440.192(8), Fla. Stat. (2011) (“A carrier that does not deny compensability in accordance with s. 20(4) is deemed to have accepted the employee’s injuries as compensable, unless it can establish material facts relevant to the issue of compensability that could not have been discovered …”) E/C waited until August 19, 2020, to first deny the compensability of Dr. Hodor’s care.
  2. E/C wants the Court to believe that the only compensable injury which it is obligated to cover is an ankle sprain. This is the only injury Dr. Fernandez (E/C’s IME), Dr. Steinlauf[3], and Dr. Brill (EMA) attribute to the accident. In contrast, Dr. Hodor believes that the accident is the MCC of a much broader and more serious range of injuries and conditions as described above. Since Dr. Hodor has been authorized since January 29, 2019 without challenge, it is estopped by operation of law from now contesting the compensability of the injuries he diagnosed and treated. See North River at 1092; see also s. 440.192(8), Fla. Stat. (2011) (“A carrier that does not deny compensability in accordance with s.440.20(4) is deemed to have accepted the employee’s injuries as compensable….”)
  3. E/C claims that a sprained ankle is the only injury for which it authorized treatment before Dr. Hodor became Claimant’s primary care physician. Accordingly, it contends that this is the only injury for which it can ever be responsible. This position fails to recognize how the “120-Day Rule” works. Teco Energy, Inc. v. Williams, 234 So. 3d 816 (Fla. 1st DCA 2017) shows what E/C is missing:

The “120-Day Rule” is not necessarily rendered obsolete on the 121st day after the first report of accident and initial installment of benefits. The rule remains viable and is again triggered when, and if, a new condition or injury arises. Snyder, 765 So.2d at 754; Boyle v. JA Cummings, Inc., 212 So.3d 1060, 1062-63 (Fla. 1st DCA 2017) (holding JCC erred by excluding adjuster’s testimony concerning specific identity of condition accepted as compensable as it related to application of subsection 440.20(4) to preexisting condition); McIntosh v. CVS Pharmacy, 135 So.3d at 1157, 1159 (Fla. 1st DCA 2014) (“It was of no consequence that compensability [of the claimant’s PTSD] was sought long after the date of the accident; the relevant inquiry is whether the E/C denied compensability within 120 days of first providing treatment for the PTSD.”).

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american-flag-1316754-300x200We are Democrats. We are Americans. It is why our firm is committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests. We oppose Donald J. Trump and Trumpism.

November 9, 2020

Enough already, tRumpis. You’ve had four years of delusion. It is now time to put country before cult. Your Man-Child has been beaten fairly and squarely. He’s a loser (and doesn’t care about you). Stop with the destructive fraud and conspiracy theories.

massage-200x300Personal Injury Protection (PIP) is mandatory insurance coverage for Florida motor vehicle owners. It covers a limited amount of medical expenses and lost wages, typically $10,000 total.

The PIP statute,  s. 627.736, is particular as to which types of medical providers may seek reimbursement. In Geico General Insurance Co. v. Beacon Healthcare Center, Inc. (Fla. 3rd DCA; opinion filed February 26, 2020), the court confirmed that “a person who is licensed as a massage therapist, but not licensed as a physical therapist,” may not be reimbursed by PIP.

A number of GEICO insureds sought treatment at Beacon Healthcare Center, Inc. During their initial consultations, the treating physician (and Beacon’s medical director) prescribed therapy modalities that were provided by massage therapists who held massage therapy licenses, but did not hold licenses in physical therapy. The massage therapists were not directly supervised on site by either a licensed physical therapist or by a medical physician when they performed the treatments.

doctorAlmost every trial level decision made by a Florida judge of workers’ compensation claims (JCC) relies, at least in part, on the opinion of a physician. If there is a disagreement in the opinions of the health care providers, section 440.13(9)(c), Florida Statutes allows the JCC to appoint what the statute calls an expert medical advisor (EMA) to break the tie. Because the statute provides that “[t]he opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary,” the EMA doctor has come to be known as a “Super Doc.”

More times than not, the presumption favoring the opinion of the Super Doc cannot be overcome. This can even be the case, for example, where the Super Doc has only reviewed medical records or examined the patient once, while the authorized doctor, who may hold a different opinion, has been treating the claimant for years. The constitutionality of the provision has been challenged. Unfortunately — in my opinion — it has survived constitutional muster. See Abreu v. Riverland Elementary School (1st DCA 2019).

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calendar-1192688-300x230Few parts of Chapter 440 of the Florida Statutes demand as much attention from the workers’ compensation insurance carrier as section 440.20(4), Florida Statutes. It provides:

If the carrier is uncertain of its obligation to provide all benefits or compensation, the carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits as required under subsection (2) or s. 440.192(8). Additionally, the carrier shall initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable, without prejudice and without admitting liability. Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation as required under subsection (2) or s. 440.192(8) waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period. The initial provision of compensation or benefits, for purposes of this subsection, means the first installment of compensation or benefits to be paid by the carrier under subsection (2) or pursuant to a petition for benefits under s. 440.192(8).

It is not always easy to determine which injuries are work related. This is why section 440.20(4) gives E/C 120 days to investigate and decide. Doctors can be questioned, medical records can be reviewed, witnesses and the injured worker can be deposed.

Absent a showing  that material facts relevant to the issue of compensability could not have been discovered through reasonable investigation within the 120-day period, an E/C who intentionally provides benefits, but fails to deny compensability within 120 days waives its right to contest an injury “arose out of, and occurred within the course and scope of, the claimant’s employment. North River Ins. Co. v. Wuelling, 683 So. 2d 1090, 1092 (Fla. 1st DCA 1996) (en banc). 

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maze2-300x225Florida statute 440.11 precludes workers injured on the job from recovering damages from the employer at law or in admiralty on account of such injury or death. Damages at law or in admiralty include non-economic damages such as pain and suffering. It is a common law remedy. Damages for pain and suffering are not available under Florida’s workers’ compensation system. Basically, workers’ compensation benefits are limited to medical and indemnity. Statute 440.10 extends the 440.11 immunity to contractors and subcontractors on the same project who are not the injured worker’s actual employer. They are considered statutory employers.

It is every personal injury lawyer’s job to maximize his or her client’s recovery. In most workplace accidents, the injured worker is limited to workers’ compensation benefits, leaving the personal injury lawyer without a role. (Our law firm handles both personal injury and workers’ compensation cases.) This is not only because of 440.10 and 440.11. In many instances, there is nobody to blame for the accident other than the employee.

Are there exceptions to 440.10 and 440.11? Yes. To succeed against the actual employer, the employee must demonstrate that the employer’s conduct rose to the level of intentional conduct substantially certain to result in injury. To make good on a case against a 440.10 entity, the employee must show that the accident was caused by gross negligence. Gross negligence requires:

1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril, 2) knowledge or awareness of the imminent danger on the part of the tortfeasor, and 3) an act or omission that evinces a conscious disregard of the consequences. Kline v. Rubio, 652 So. 2d 964, 965-66 (Fla. 3d DCA 1995).

Under certain circumstances, an employee may pursue these common law remedies after receiving workers’ compensation benefits. At least one case, Vellejos v. Lan Cargo SA, appears to have allowed the pursuit after the workers’ compensation case was settled and a broad release was signed. (Vellejos, the injured worker, sued a subcontractor alleging gross negligence. The appellate court said he had the right to do so, but upheld the trial court’s summary judgment dismissal on the basis that, as a matter of law, no reasonable jury to conclude that the facts constituted gross negligence. The opinion is confusing and has not been cited as authority by any other appellate courts.)

A person injured while working has the right to elect between two different remedies — workers’ compensation and common law — for compensation. “However … the point upon which a worker’s action with regard to a compensation claim constitutes an election of the workers’ compensation remedy to the exclusion of a civil action is not entirely clear.” Jones v. Martin Electronics, Inc., 932 So. 2d 1100, 1105 (Fla. 2006). Florida courts have clearly stated that the “[m]ere acceptance of some compensation benefits . . . is not enough to constitute an election” of remedies. Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984) (quoting Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 254 (Alaska 1976)); see also Wheeled Coach Indus., Inc. v. Annulis, 852 So.2d 430, 432 (Fla. 5th DCA 2003)Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000)Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA 1995); Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991).

There are also the cases where, because the compensability of the claim or the status of the employee at the time of the injury was contested, an election was not made: Vasquez v. Sorrells Grove Care, Inc., 962 So. 2d 411, 415 (Fla. 2d DCA 2007) (noting that the carrier contested the compensability of the claim and whether Vasquez was an employee); Hernandez v. United Contractors Corp., 766 So. 2d 1249, 1252 (Fla. 3d DCA 2000) (holding that because the carrier contested the compensability of the claim and took the position that there was no evidence that the accident arose out of and in the course and scope of Hernadez’s employment, there was no conclusion on the merits); Lowry v. Logan, 650 So. 2d 653, 658 (Fla. 1st DCA 1995) (“there remain disputed issues of fact concerning whether Lowry is an [sic] covered employee or an independent contractor and whether he was injured in the course and scope of his employment”); Wright v. Douglas N. Higgins, Inc., 617 So. 2d 460, 461-62 (Fla. 3d DCA 1993) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case); Wishart v. Laidlaw Tree Serv., Inc., 573 So. 2d 183, 184 (Fla. 2d DCA 1991) (“The critical issue of fact which must be determined by the trial judge is whether the employee was injured in the course and scope of his employment.”); Velez v. Oxford Dev. Co., 457 So. 2d 1388, 1391 (Fla. 3d DCA 1984) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case).

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