pinoccioFlorida’s experience with crafting workers’ compensation legislation is a case study in the danger of accepting without challenge the statements of insurance industry lobbyists. One after the other during Florida’s last legislative session (March – May, 2017), insurance industry lobbyists stood before committees of elected officials and made baseless comments for the simple purpose of  increasing insurance company profits, without regard for the health and welfare of hard working men and women and their families. None testified under oath so they were free to pull crap from their asses to feed to legislators, which they did in abundance. Had they been required to take an oath, not a one of them would have said a word.

The following article debunks the comments of every insurance industry shill who tried to influence legislation.

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Workers’ Comp Drops Off The Legislative Map

Oct 6, 2017

Just a year after dire predictions that the state’s economy was in peril due to rising insurance costs, Florida businesses could see an average 9.3 percent reduction in workers’ compensation premiums in the coming year under a rate filing Insurance Commissioner David Altmaier will consider later this month.

While it may be good news for those who pay the premiums, the proposed reduction filed by the National Council on Compensation Insurance presents a hurdle for business lobbyists and special interests who have warned lawmakers for more than a year that a pair of 2016 Florida Supreme Court rulings would drive workers’ compensation rates so high that employers would be forced to slash jobs.

Bill Herrle, executive director of the National Federation of Independent Business in Florida, acknowledged that after traveling the state in the summer of 2016 discussing the issue and spending the majority of the 2017 session unsuccessfully pushing a workers’ compensation bill, it’s not a priority this year.

Enthusiasm to tackle the complicated issue has waned since the proposed 9.3 percent reduction was filed in August, he said.

“We still believe the rates are going to go up, but when rates are going down, we don’t have wind in our sails,” Herrle said.

House Commerce Chairman Jim Boyd, R-Bradenton, worries about attorney involvement in the workers’ compensation insurance system and has asked members of his committee to receive an update during a meeting next week in Tallahassee.

Nevertheless, Boyd, an insurance agent, acknowledged that there isn’t a need for legislative action if Altmaier approves lower workers’ compensation rates for the coming year.

“I’m not sure doing anything this year would be appropriate or prudent,” Boyd said.

Workers’ compensation is a no-fault system meant to protect workers and employers. It is supposed to provide workers who are injured on the job access to medical benefits they need to be made whole. Those who are injured for at least eight days also are entitled to indemnity benefits, or lost wages. In exchange for providing those benefits, employers generally cannot be sued in court for causing injuries.

While the system is supposed to be self-executing, injured workers hire attorneys when there are disputes over the amounts of benefits they should receive.

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red-umbrella-mingling-with-grey-umbrellas-be-different-concept-300x205Making a first party insurance claim is not always the only or even the best option available to a person or corporation whose property has been damaged by wind or rain. (A first party claim is made by a policy holder to his or her own insurance company. These claims are contractual; meaning that they arise out of a contract (the insurance policy) between the insurance company and the policy holder.)

Most first party property damage insurance policies have a deductible. (Deductibles are the amount an insured must pay before the insurance company becomes responsible for making payments under the policy. The deductible amounts can range from $250 to thousands of dollars.)

Making a first party claim may also result in a premium increase. (An insurance premium is the amount of money that an individual or business must pay for an insurance policy.)

Whether the property owner has an alternative to the first party claim depends on the cause of the damage. For example, a manufacturing defect or improper installation may account for a roof leak. In these instances, the better option may be to seek compensation from the responsible third party. The downside to this avenue of recourse is the time, delay, and expense of having to prove fault and damages against a party that is likely to be more hostile than the first party carrier.

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chronic-pain-spots-painful-joints-in-the-body-300x203Wikipedia defines a functional capacity evaluation (FCE) as “a set of tests, practices and observations that are combined to determine the ability of the evaluated person to function in a variety of circumstances, most often employment, in an objective manner. Physicians change diagnoses based on FCEs.”

I, for one, consider FCEs junk science. At the very least, they must be handled with care. Most FCE administrators are not sufficiently grounded in science, case law and forensic issues. Examples may include misquoting standard journal articles and texts, making false statements, providing “junk science” opinions, including predicted functional capacity over prolonged periods projected into the future based on flimsy short-term testing, and interpretation, and deliberately omitting important facts and knowledge. Nevertheless, FCEs are a fairly common component within Florida’s workers’ compensation system.

Chapter 440 is the section of the Florida Statutes containing the workers’ compensation system’s statutory laws. Surprisingly, Chapter 440 contains no reference to FCEs. This means that a judge of compensation claims does not have authority to compel a claimant’s attendance at an FCE. Caution is counseled here: While a claimant cannot be compelled to attend, under some circumstances the refusal to attend may result in the loss of benefits.

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hand-drawing-a-house-on-blackboard-real-estate-and-housing-con-300x209Every property damage insurance policy issued in Florida requires the insured to provide the insurance company (or, in some instances, the procuring policy agent) with timely notice of a loss. The notice requirement enables the insurer to conduct a timely and adequate investigation of all circumstances surrounding an accident. Bankers Insurance Company v. Macias, 475 So.2d 1216 (Fla. 1985). Many a claim has been denied for failing to meet the notice requirement.

Unless the terms of a policy run afoul of statutory or case law, they will govern the relationship between the insured and the insurer. This includes responsibilities with regard to loss reporting.

The reporting requirements can vary from policy to policy. This makes it advisable to read the insurance contract upon purchase and after a loss. The words “immediate” and “prompt” are commonly used to establish the reporting parameters.

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home-insuranceMost homeowner and commercial residential insurance policies obligate policyholders to participate in a potentially expensive and time-consuming adversarial appraisal procedure before litigation. Here’s an example, from Allstate Insurance Company v. Suarez, 833 So. 2d 762 (Fla. 2002), of a typical contractual appraisal provision:

Appraisal. If you and we fail to agree on the amount of loss, either party may make written demand for an appraisal. Upon such demand each party must select a competent and impartial appraiser and notify the other of the appraiser’s identity within 20 days after the demand is received. The appraisers will select a competent and impartial umpire. If the appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge or a court of record in the state where the resident premises is located to select an umpire. The appraisers shall then determine the amount of loss, stating separately the actual cash value and the amount of loss to each item. If the appraisers submit a written report of an agreement to us, the amount agreed upon shall be the amount of loss. If they cannot agree, they will submit their differences to the umpire. A written award by any two will determine the amount of loss.

Cognizant of this daunting burden, the Florida Legislature enacted statute 627.7015, which provides an alternative procedure for resolving disputed property insurance claims. The essential elements of the statute are:

Senator-Rob-BradleyFrom: Jeff Gale [mailto:jeffgalelaw@bellsouth.net]
Sent: Wednesday, April 19, 2017 9:15 PM
To: ‘bradley.rob@flsenate.gov’
Subject: Senate Bill 1582 (Workers’ Compensation)

Dear Senator Bradley:

I have been representing injured workers since 1990. As Florida’s 1st DCA wisely noted in 1985, in language adopted by the Florida Supreme Court in Castellanos v. Next Door Company, et al., a claimant proceeding “without the aid of competent counsel” would be as “helpless as a turtle on its back.” Davis v. Keeto, Inc., 463 So. 2d 368, 371 (Fla. 1st DCA 1985).

I have followed all of the Senate Committee hearings on your bill. I take issue with those who testified that the Castellanos fee was an aberration. It was not. While $1.53/hr. falls at the low end of the spectrum, there is little practical difference between $1.53/hr and $15.00/hr or $20.00/hr for a lawyer trying to keep his or her law office lights on. Between 2003 and Castellanos, I handled hundreds of WC cases. My average hourly rate on those cases ranged from $15 to $20 per hour. Unsustainable. I continued to accept workers’ compensation cases because they are the most gratifying of the various types of cases I handle, but it was personal injury cases that allowed me to stay in business. Many workers’ compensation attorneys dropped out.

My experience with low hourly rates is not unique. As FN 2 in Castellanos indicates, on the date the Supreme Court rendered its decision it had pending before it (on certiorari jurisdiction from the 1st DCA) 18 other cases on the very same issue. I say this as a caution against believing those who downplay the devastating impact of the law challenged in Castellanos.

The reasonable carrier-paid attorney’s fee serves two tremendously important purposes. First, it affords injured workers the opportunity to retain competent counsel. Second, and just as important, it compels carriers to provide needed benefits timely. The problem pre-Castellanos is that carriers faced little consequence for poor and bad faith claims handling.

I greatly appreciate your steadfastness and decency in seeking to fashion a fair and measured workers’ compensation bill in the face of powerful opposition forces. The current version of SB 1582 is that bill. The House bill is not. The hourly rate for carrier-paid fees must be high enough to serve the important goals of affording injured workers adequate legal representation and of prodding carriers into doing the right thing. The House bill, with its $150/hr. cap and onerous hurdles to securing fees – period — eviscerates these goals.

Most respectfully,

Jeff Gale

From: Jeff Gale [mailto:jeffgalelaw@bellsouth.net]
Sent: Thursday, April 20, 2017 12:57 PM
To: ‘bradley.rob@flsenate.gov’
Subject: RE: Senate Bill 1582 (Workers’ Compensation)

Dear Senator Bradley,

The total fee received by the Claimant’s attorney in the Castellanos case was $164.54. This was for 107.2 hours of work determined by the Judge of Compensation Claims (JCC) to be “reasonable and necessary.” Under the law ruled unconstitutional, this means that the value of the benefits secured totaled $822.70. More likely than not, had the current attorney’s fee provisions been in place when Mr. Castellanos was seeking these benefits, the carrier would have provided them without a fight. Instead, the E/C forced Claimant’s attorney to the mat figuring early capitulation or, worst case, having to pay the attorney a measly fee in the event of a loss at the trial level.

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crushed-vehicle-1-300x207Even when an insurance company is willing to pay fair market value on a wrecked or damaged vehicle, it sometimes makes more sense to repair rather than have it declared a total loss. This can be the case when it is not practical to purchase another vehicle with the amount of money payable under the total loss calculation.

Florida motor vehicle insurance policies cover for vehicle loss and repair through Property Damage Liability and Collision provisions. PD Liability, which is third party coverage because it insures for loss suffered by persons other than the insured, is mandatory in Florida. Collision, which is first party coverage because it covers the insured, is not.

Section 319.30, Florida Statutes (2016) allows registered owners of wrecked or damaged vehicles covered under 1st or 3rd party coverage to insist on repair over fair market replacement value. Subsection (3)(a)2. provides as follows:

P1010046-1-300x225Our firm represented a gentleman who sustained life-threatening injuries after being struck by an SUV while standing next to his incapacitated truck on the side of Interstate 95 in Broward County, Florida. (See blog photo.) The accident happened in broad daylight during rush hour traffic.

Following a tire blowout, our client had pulled his semi-tractor trailer rig into the highway gore, a paved section of roadway which separated northbound I-95 thru-lanes from two exit lanes, to await the arrival of roadside assistance summoned by his employer to replace the tire. The roadside assistance vehicle that arrived on the scene was owned and operated by an independent contractor. Essentially, it was a beat up old jalopy — see photo — that was not equipped with any warning lights of the type highway drivers have come to expect, and its small factory hazard lights were partly obscured by a rear metal door  lowered to access the truck bed. It pulled up directly behind the trailer, blocking the trailer’s warning lights and hazard strips.

As our client was standing next to the service technician, who was in the process of changing the tire on the left side of the trailer, both he and the technician were struck by a northbound vehicle whose driver had failed to timely recognize that the vehicles were stopped rather than moving with the regular flow of traffic. At the last split second this driver recognized the situation and swerved sharply to avoid striking the service vehicle. His vehicle clipped the left rear of the vehicle before striking the two gentlemen. His vehicle was totaled and each of the three individuals were transported to the hospital with severe injuries.

We sued the driver and the roadside assistance company. Our allegations against the company included the failure to employ adequate safety warning devices on its vehicle. Through research in this and other cases, we knew that daylight crashes involving disabled vehicles are commonplace. Among the explanations for the phenomenon are the theories known as “follow-the-leader” and “looming distance.” They rely on human perception and reaction to various roadway situations. (In 2013, we were involved in obtaining a $2.7 million jury verdict, in Orlando, Florida, in reliance on the “looming distance” theory. In broad daylight under clear weather conditions, our client drove a Disney bus into the back of a large motor coach stopped on the highway for mechanical reasons. The motor coach’s hazard lights were on and it had been stopped long enough for the operator to exit and inspect the vehicle, then walk to the side of the road to make a phone call. Our client, who was not distracted and did not have any visual impairments, had a 1/4 mile unobstructed view as he approached on a straightaway. Because of “looming distance” factors, he was not able to realize until the accident was unavoidable that the motor coach was stopped rather than moving.)

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Countless times we have prepared witnesses to give sworn testimony. At the very outset we go over the basic rules: 1. Listen carefully to each question and make it is fully understood before answering; 2. Only answer the question asked. If that can be done with a simple yes or no, answer accordingly. If an explanation is required, be short and sweet with it. Do not jump onto a soapbox and give a speech; 3. Do not be a wise guy or hostile to the questioner. If, for whatever reason, the question is inappropriate the witness’ lawyer will make an objection, and, if necessary, instruct the witness not to answer (e.g., where attorney/client communications are involved); 4. BE TRUTHFUL!!!

On June 13, 2017, U.S. Attorney General Jeff Sessions testified under oath before the Senate Intelligence Committee25 Times Jeff Sessions Had a Convenient Memory Lapse While Testifying. In our considered opinion, AG Sessions violated all of the above rules, especially #4.

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ny-worker-268x300Workers hurt on the job do not have an unlimited period of time in which to institute legal proceedings against employers and their insurance companies, herein collectively referred to as the “E/C,” to resolve disputes. Rights can be lost if not exercised timely.

Florida statute 440.19 allows for the filing of a petition for benefits — which is how legal proceedings are instituted under Florida’s workers’ compensation system — up to the greater of two 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment or one year from the payment of any indemnity benefit or the furnishing of remedial care.

Under certain circumstances these SOL deadlines can be extended. For example, where the E/C, intentionally or otherwise, misleads the claimant as to his rights or the availability of workers’ compensation benefits with the result that the claimant fails to timely file his claim, the E/C will be estopped from asserting the statute of limitations as a defense. Boyd v. Florida Memorial College, 475 So.2d 990 (Fla. 1st DCA 1985); Foster Wheeler Energy Group v. Fairhurst, 405 So.2d 438 (Fla. 1st DCA 1981); Catalano v. Hillsborough County Board of Public Instruction, 249 So.2d 24 (Fla. 1971); Jenkins v. M.H. Harrison Construction Company, 228 So.2d 911 (Fla. 1969); Engle v. Deerborne School, 226 So.2d 681 (Fla. 1969); Howanitz v. Biscayne Electric, Inc., 139 So.2d 678 (Fla. 1962); Baptist Village v. Newton, IRC 2-3551 (1978), cert. denied, 368 So.2d 1362 (Fla. 1979).

The above examples are obvious. Other situations can be more subtle.

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