TRUMP-225x300July 19, 2018; Facebook

Despite Trump’s BS about being willing to meet with Special Prosecutor Mueller, said as recently as last night in a CBS interview, everyone knows he won’t do it. It will take a subpoena to compel his testimony.

Tonight I heard a former Federal Prosecutor, with 30 years of experience, posit that Mueller won’t issue such a subpoena. The reason why is not good news for Comrade Trump.

law-books-300x238In Giraldo v. AHCA, the Florida Supreme Court addressed the vexing question regarding whether the Agency for Health Care Administration (AHCA) may lien the future medical expenses portion of a Florida Medicaid recipient’s tort recovery. In an opinion favoring individuals who have sustained personal injuries through the fault of third parties, the court held that federal law allows AHCA to lien only the past medical expenses portion of a Medicaid beneficiary’s third-party tort recovery to satisfy its Medicaid lien.

Medicaid will sometimes pay the medical expenses of a Medicaid recipient who has been harmed through the negligence of a third party. In some cases, the payments are extremely sizeable. (In Giraldo, for example, Florida’s Medicaid program (administered by AHCA) paid $322,222.27 for the victim’s medical care.) Where the victim is compensated by the third party for his or her damages, either through a settlement or a court judgment, Medicaid may recoup from the victim some or all of its payments. The recovery formula is set forth in section 440.910(11)(f), Florida Statutes. Giraldo addressed Medicaid’s lien rights.

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clock-300x200Every type of legal matter has a time bar to when legal proceedings can be maintained to address a dispute. The time bar is known as the statute of limitations. The Florida workers’ compensation statute of limitations is contained in section 440.19, Florida Statutes.

Especially in the area of workers’ compensation, the courts have formulated ways of overcoming the SOL defense. One avenue is by demonstrating — it is the claimant’s burden — that the employer/carrier (E/C) have neglected or shirked their responsibilities and obligations to notify claimant[s] of possible benefits under the Workers’ Compensation Act. Gauthier v. Florida International University, 38 So.3d 221 (Fla. 1st DCA 2010). The result of making the proper proof is that the E/C will be estopped from relying on a statute of limitations defense.

In Gauthier, the claimant sustained a serious eye injury. Despite its knowledge of claimant’s severe ocular injury, E/C never pursued a date of maximum medical improvement (MMI) — section 440.02(10), Florida Statutes — or a permanent impairment rating (PIR) — 440.02(22) — thus avoiding the payment of permanent impairment benefits — 440.15(3) — which, if paid, would have tolled the statute of limitations.

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worker2-300x223For the most part, workers’ compensation insurance companies limit their payment of medical expenses to conditions caused by work-related accidents. In some instances, however, carriers may be required to cover expenses for unrelated conditions. The primary instances are when (1) diagnostic testing is required to determine the compensability of an injury, (2) an unrelated condition presents a hindrance to the recovery of a compensable medical condition, and (3) controlling an unrelated condition, like high blood pressure, is necessary to allow the claimant to undergo a related procedure, like surgery.

Both principles are grounded on section 440.13(1)(k), Florida Statutes, which provides:

“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.

Treatment to determine whether an injury is compensable

Laxner v. Target Corporation, 41 So.3d 396 (Fla. 1st DCA 2010). To establish entitlement to medical treatment, care, and modalities that have an investigatory or diagnostic purpose, workers’ compensation law does not require claimant to prove the major contributing cause of the need for treatment or diagnostic testing is her workplace accident or injury; rather, the award of such medical care is dependent on a finding that the evaluation is reasonably required to determine the cause and extent of claimant’s injuries.

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dwc-19-235x300By demonstrating that particular physical restrictions are responsible for lost wages or lack of employment, an employee with functional limitations less than a total disability may be eligible for temporary partial disability benefits (TPD) pursuant to section 440.15(4), Florida Statutes.

The claims-handling entity may impose a further burden by requiring the injured employee to complete, sign, and return Form DFS-F2-DWC-19 within 21 days after receiving it to report all earnings of any nature, including all social security benefits.

In Perdue v. Sebring Marine Ind. Inc., 82 So.3d 816 (Fla. 1st DCA 2011), reh. den. Sept. 3, 2011, the Judge of Compensation Claims (JCC) denied TPD benefits to the claimant on the basis that the injured employee did not submit a DWC-19 Employee Earnings Report in the claim. However, there was no evidence that the employer/carrier had provided the forms to the claimant. The First DCA reversed the JCC’s ruling, holding that the employer/carrier has the burden to prove it sent the forms to the claimant.

scales-of-justice-300x203Under Florida law, only individuals meeting the definition of “Survivors” under Florida’s Wrongful Death Act may be compensated for losses resulting from the death of another person. (See this blog, Florida Wrongful Death Survivors Chart, for a handy reference to benefits available under the Act.)

Under section 768.18(1) of the Act, survivors are defined as: 

the decedent’s spouse, children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.

In January 2011, Richard Wiederhold was immediately rendered a quadriplegic in a motor vehicle crash. One month later he sued Domino’s Pizza as being responsible for the crash. Several months later he married his girlfriend. In March 2012, Mr. Wiederhold died, and his now-wife, Mrs. Wiederhold, as personal representative of his estate, was substituted as the plaintiff. She then filed an amended complaint to include a claim for wrongful death damages as Mr. Wiederhold’s surviving spouse.

Mrs. Wiederhold received a favorable jury verdict. Domino’s appealed, arguing that because Mrs. Wiederhold was not married to Mr. Wiederhold at the time of the accident, she was not a surviving spouse under the Act.

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mri-image-brain-241x300The current definition of “attendant care,” which is not significantly different than in past versions of the statute, is as follows:

Florida Statute 440.13(1)(b). “Attendant care” means care rendered by trained professional attendants which is beyond the scope of household duties. Family members may provide nonprofessional attendant care, but may not be compensated under this chapter for care that falls within the scope of household duties and other services normally and gratuitously provided by family members. 

At the outset, it should be noted that the Claimant has the burden of proving the quantity, quality, and duration of the attendant care. See Adams Bldg. Materials, Inc., v. Brooks, 892 So.2d 527, 530 (Fla. 1st DCA 2004) (citing Orange Cnty. Sheriff’s Dep’t v. Perez, 541 So.2d 652, 654 (Fla. 1st DCA 1989) (holding claimant has burden to prove “the quantity, quality and duration of attendant services claimed”)).

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ATV-300x200Uninsured/Underinsured motor vehicle insurance (UM/UIM) – Florida Statute 627.727 — covers losses covered by bodily injury liability insurance (BI) but not available because the at-fault party did not maintain BI (UM) or the BI limit is insufficient to cover the full extent of the damages (UIM).

Subsection (2) of the UM/UIM statute provides that “[t]he limits of uninsured motorist coverage shall be not less than the limits of bodily injury liability insurance purchased by the named insured.” The typical application of this provision involves dollars: the UM policy limit must be the same amount as the BI policy limit. E.g., if the BI policy limit is $100,000, the UM/UIM limit must be $100,000.

In Amica Mutual Insurance Company v. Willis, Fla: Dist. Court of Appeals, 2nd Dist. 2018 (Opinion filed January 17, 2018), the court considered the same statutory provision in the context of a different scenario. Appellee Willis was injured by an uninsured golf cart. She sought coverage under her UM policy. The BI section of the policy provided liability coverage for damages resulting from an accident involving this type of motor vehicle, while the UM section excluded coverage. Relying on the UM exclusion, the insurance company denied coverage.

worker-225x300Florida Statute 440.02(1), which is contained in the definitions section of Florida’s workers’ compensation system, defines “Accident” as “an unexpected or unusual event or result that happens suddenly.” Can an injury resulting from an event that is not unexpected or unusual be compensable under Florida’s workers’ compensation system? Yes.

In Bryant v. David Lawrence Mental Health Center, 672 So.2d 629 (Fla. 1st DCA 1996), the Employee/Claimant, who was employed as a housekeeper at a mental health facility, squatted to lift a bag of laundry off the floor of the laundry room and felt immediate pain in her right knee. She sustained a tear of the lateral meniscus in that knee.

Because squatting is not an unexpected or unusual event, the Employer/Carrier denied the claim, and it was able to get the judge of workers’ compensation claims (JCC) to agree with its position that “her [the Claimant’s] injury was idiopathic and did not arise out of the claimant’s employment because her employment did not expose her to any greater risk than she experiences in her everyday life and to which the population as a whole is exposed.” (Miriam-Webster defines idiopathic as an injury “arising spontaneously or from an obscure or unknown case.”)

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clock-300x200Florida’s workers’ compensation system has two distinct time bars for filing petitions to seek benefits. Most people are at least vaguely aware of one of the concepts, known as the statute of limitations (SOL). Florida’s workers’ compensation SOL is enunciated in section 440.19, Florida Statutes.

The other time bar is laid out in Florida Statute 440.185(1), reproduced below:

(1) An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under this chapter unless:

(a) The employer or the employer’s agent had actual knowledge of the injury;

(b) The cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;

(c) The employer did not put its employees on notice of the requirements of this section by posting notice pursuant to s. 440.055; or

(d) Exceptional circumstances, outside the scope of paragraph (a) or paragraph (b) justify such failure.

This blog addresses subsection (d).

The statute is often interpreted strictly to the detriment of the injured worker. Accordingly, while there is some room for challenge built into every subsection of the statute, it is nevertheless advisable to err on the side of caution by giving notice [to the employer] whenever practicable within 30 days of  having even the slightest indication a work-related injury may have been sustained.

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