Florida Injury Attorney Blawg

January 16, 2025

Jeffrey P. Gale, P.A. /// Don’t Underestimate Potency of Florida Workers’ Compensation Statute 440.39

It is not uncommon for a personal injury case and a workers’ compensation case to arise out of the same accident. This is often the case when an employee is hurt in the course and scope of his job through the negligence of a third-party. Our law firm handles both types of cases.

Florida Statute 440.39 gives the employer or its workers’ compensation insurance carrier, as the case may be, lien rights in the proceeds of any recovery made in the personal injury liability case. In consideration of this right, the employer and carrier have a “duty to cooperate” with the employee in prosecuting claims and potential claims against third-party tortfeasors. See sec. 440.39(7).

The court in Shaw v. Cambridge Integrated Servs. Group, Inc., 888 So.2d 58, 64 (Fla. 4th DCA 2004), declared that the duty to cooperate found in section 440.39(7) is “[o]ne of the most important rules and conditions stated in the Workers Compensation statute.” For example, an employer/carrier’s failure to cooperate can have adverse consequences on their lien rights. 440.39(3)(a) provides that

the failure by the employer or carrier to comply with the duty to cooperate imposed by subsection (7) may be taken into account by the trial court in determining the amount of the employer’s or carrier’s recovery, and such recovery may be reduced, as the court deems equitable and appropriate under the circumstances, including as a mitigating factor whether a claim or potential claim against a third party is likely to impose liability upon the party whose cooperation is sought, if it finds such a failure has occurred.

A violation of 440.39 can also subject the employer/carrier to a spoliation claim for failing to preserve evidence. This cause of action is not barred by the employer’s workers’ compensation immunity outlined in section 440.11, Florida Statutes. See General Cinema Beverages of Miami v. Mortimer, 689 So.2d 276, 278 (Fla. 3d DCA 1995).

January 9, 2025

Jeffrey P. Gale, P.A. /// Scrutinize Workers’ Compensation Carrier’s Paylog to Reduce WC Lien Amount

by Jeffrey P. Gale, P.A.

It is not uncommon for an individual hurt in a work-related accident, for which workers’ compensation benefits are due, to also have a liability case against a negligent third party. Where compensation is recovered in both cases, the injured party may have to give some of the third-party recovery to the workers’ compensation insurance carrier to satisfy its workers’ compensation lien. See section 440.39(2), Florida Statutes.

There is a formula, commonly referred to as the Manfredo Formula, used for establishing the amount of the lien recovery. However, before getting to the formula, it is necessary to determine the amount of recoverable expenditures to plug into the formula.

January 8, 2025

Jeffrey P. Gale, P.A. // “At-Will” is (Mostly) the Law of the Land

by Jeffrey P. Gale, P.A.

At-will employment allows employers to adjust the terms of employment with employees at any time, with or without notice, for any reason, and without legal consequence. Montana is the only state that is not an at-will employment state.

At-will employment not only subjects employees to arbitrary terminations and reductions in hours, it discourages employees from making legitimate internal complaints about company operations.

Some cities and states have carved out exceptions to the at-will law. However, the exceptions are mostly limited in scope to government employees. New York City enacted a law to protect employees of large fast-food restaurant chains in the city.

Collective bargaining agreements forged by unions also include exceptions. They can cover goverment and private business employees.

The exceptions typically apply a “just cause” or “good cause” standard. Just cause under New York City’s law, the Wrongful Discharge of Fast Food Employees law, is defined as “the fast food employee’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to to the fast food employer’s legitimate business interests.”

November 12, 2024

Jeffrey P. Gale, P.A. // Key Florida Workers’ Compensation Emergency Medical Care Issues

by Jeffrey P. Gale, P.A.

Emergency medical services and care can play a pivotal role in Florida workers’ compensation cases.

Under section 440.13(1)(e), Florida Statutes, “emergency services and care” is defined by its reference to section 395.002, Florida Statutes (2024), as follows:

(9) “Emergency services and care” means medical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists and, if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility.

An “emergency medical condition,” as defined in section 395.002(8)(a), Florida Statutes (2024), means:

(8) “Emergency medical condition” means:

(a) A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:

1. Serious jeopardy to patient health, including a pregnant woman or fetus.

2. Serious impairment to bodily functions.

3. Serious dysfunction of any bodily organ or part.

The provision of “Emergency services and care” is an exception to the rule allowing employers and their workers’ compensation insurance carriers (E/C) to choose the medical providers and pre-approve medical care. For example, in cases involving serious injuries where surgery is performed, it is not uncommon for the emergency room surgeon to become the authorized provider for future care. The doctor may not have a relationship with the E/C or even be familiar with the workers’ compensation system. Once authorized, providers only become deauthorized by agreement of the parties or by court order based on a failure to furnish care meeting community standards.

October 29, 2024

Jeffrey P. Gale, P.A. /// Spouse Married Post-Accident Entitled to Florida Wrongful Death Damages

by Jeffrey P. Gale, P.A.

In Ripple v. CBS Corp., 385 So.3d 1021 (Fla. 2024), the Florida Supreme Court held that a spouse who married the decedent after the onset of the injury that caused the decedent’s death can recover damages as a “surviving spouse” under section 768.21(2) of the Florida Wrongful Death Act (the Act). That provision allows a “surviving spouse” to recover “for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.”

Relying on statutory interpretation, the Court rejected the argument that the common law “marriage before injury” rule bars recovery under section 768.21(2). The “marriage before injury” rule is limited to personal injury claims. It provides that where a couple is not married before the injury occurred, no consortium damages are available. See, e.g., Tremblay v. Carter, 390 So. 2d 816, 817 (Fla. 2nd DCA 1980).

October 11, 2024

Jeffrey P. Gale, P.A. // Prohibited Florida Workers’ Compensation Balance Billing

by Jeffrey P. Gale, P.A.

A medical provider authorized by an employer or workers’ compensation insurance carrier to furnish care to an injured worker is paid based on a fee schedule. (Section 440.13(b), Florida Statutes allows for deviations by agreement.)

Fee schedule payment amounts are always below the provider’s usual and customary charge. However, balance billing by the provider, i.e., an effort to collect from the employee an amount in excess of the fee schedule, is prohibited under Chapter 440 and section 559.72(9), Florida Statutes. In fact, 559.77 creates a civil remedy against medical providers who engage in such balance billing.

In Sun Bank/South Florida, N.A. v Baker, 632 So.2d 669 (Fla. 4th DCA 1994) and Freshwater v Baker, 707 So.2d 937 (Fla. rd DCA 1998), workers’ compensation authorized medical providers brought suit against injured workers to recover amounts above what they accepted in payment from the workers’ compensation carriers. In each case, the injured worker had made a separate recovery from a third party responsible for causing the accident. (It is not uncommon for an employee hurt in the course and scope of his or her employment to also have a cause of action against a third-party, i.e., an entity other than the employer.) In Sun Bank, the injured worker even signed an agreement with the doctor promising to pay any part of the bill not paid by an insurer and containing an acknowledgment that the agreement “constitutes a lien against any recovery for any liability from any source whatsoever.”

September 20, 2024

Jeffrey P. Gale, P.A. // Medicare Set-Aside (MSA) Issues in Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

Medicare is a taxpayer-funded federal health insurance program that pays some health insurance costs. People are eligible for Medicare when they turn 65 years old. In addition, Medicare is automatically available 24 months after becoming entitled to Social Security Disability Income (SSDI). (Date of entitlement is the date of disability plus a five month waiting period. For example, if the date of disability is June 1, 2024, the date of entitlement is November 1, 2024, meaning that the earliest the applicant will qualify for Medicare is November 1, 2026 — there are exceptions to this rule if the disabling diagnosis is End Stage Renal Disease or ALS.)

Medicare will not pay the medical expenses associated with a job accident while the workers’ compensation carrier is paying for the care. This is simple and straightforward. Matters become more complicated when a settlement of the workers’ compensation case is contemplated.

While the workers’ compensation carrier will not pay for medical care after a settlement, Medicare places conditions on paying for post-settlement accident-related medical services. Before it begins paying, Medicare requires that a portion of the settlement proceeds be depleted on accident-related medical expenses.

This requirement does not apply in every instance. It is only triggered under these circumstances:

The total workers’ compensation settlement amount is over $25,000 and the claimant is a Medicare beneficiary.
The claimant is not a Medicare beneficiary, but expects to enroll within 30 months of the settlement date, and the total settlement amount is over $250,000.

When the requirement is triggered, Medicare should be presented with a proposed amount to be paid from the workers’ compensation settlement before the settlement becomes binding. While the settlement does not have to be made contingent on Medicare’s approval, the workers’ compensation insurance carrier will insist on it. In most cases, it’s also a good idea for the claimant. The proposal is called a Medicare Set-Aside (MSA).

August 28, 2024

Jeffrey P. Gale, P.A. // Releasing Active Tortfeasors Does Not Release Vicariously Liable Tortfeasors

by Jeffrey P. Gale, P.A.

Active tortfeasors become legally liable for engaging in negligent conduct. Passive tortfeasors become liable for the negligent conduct of active tortfeasors through the legal principle known as vicarious liability. Examples include owners of motor vehicles whose permissive drivers cause crashes and employers for the acts of their employees.

Nowadays, active tortfeasors can be released from cases, even before a lawsuit is brought, without sacrificing the case against the passive tortfeasors. It wasn’t always this way in Florida.

Common law used to reason that settling with the active tortfeasor discharged the liability of the passive tortfeasor. “At common law and before the enactment of statutes to the contrary, a release of one joint tortfeasor released the other, Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914).” Safecare Health Corp. v. Rimer, 620 So. 2d 161, 164 (Fla. 1993)(McDonald, J. dissenting).

In modern times, at least, the Florida Legislature has, for the most part, not been friendly to Plaintiffs. It has crafted statutes making it harder to gain access to the courthouse and to obtain just compensation for serious injuries once inside. An exception to this history concerns statutory changes that paved the way to the present state of the law regarding settlements with active tortfeasors.

The first statutory change was enacted in 1957. It provided that

A release or covenant not to sue as to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.

In Hertz Corp. v Hellens, 140 So. 2d 73 (Fla. 2d DCA 1962), the court interpreted the statute as applying “to all tort-feasors, whether joint or several, including vicarious tortfeasors.”

Subsequent Florida statutes — 46.015, 768.041, and 768.31 — and case law — e.g., Stephen Bodzo Realty, Inc. v. Willits International Corp., 428 So. 2d 225 (Fla. 1983), Florida TomatoPackers, Inc. v. Wilson, 296 So. 2d 536, 538 (Fla. 3d DCA 1974), JFK Medical Center, Inc. v. Price, 647 So. 2d 833 (Fla. 1994), Crosby v. Jones, 705 So. 2d 1356, (Fla. 1998) — have brought us to the present state where it is safe to settle with, and dismiss, actively liable tortfeasors. However, while this may be true, caution must still be exercised with the settlement release.

First and foremost, avoid any language that could be construed as releasing other defendants, including vicariously liable tortfeasors. As further protection, add language to the release making it clear that it does not apply to any other defendants including but not limited to vicariously liable defendants.

Advantages of settling with the active tortfeasor include gaining access to funds and, in some instances, getting the active tortfeasor to feel friendlier to the plaintiff’s side.

August 1, 2024

Jeffrey P. Gale, P.A. // Volunteer Immunity in Florida for Simple Negligence

by Jeffrey P. Gale, P.A.

Some states exempt charities from liability for damages caused by their servants. Florida does not. Nicholson v. Good Samaritan Hospital, 199 So. 344 (Fla. 1940). This is consistent with the legal doctrine known as respondeat superior, which holds employers liable for the negligent or purposeful acts of their employees. See Valeo v. East Coast Furniture Co., 95 So. 3d 921, 925 (Fla. 4th DCA 2012) (negligence of employee imputed to employer when employee “committed the negligent act: (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer.”). This liability, also known as vicarious liability, applies even if the employer has done nothing wrong.

Most jurisdictions, either by state or federal law, exempt volunteers from all liability for injuries caused by negligence. This is an exception to the general rule that employees are liable for their negligence.

Congress enacted the “Volunteer Protection Act of 1997”

“to promote the interests of social service program beneficiaries and taxpayers and to sustain the availability of programs, nonprofit organizations, and governmental entities that depend on volunteer contributions by reforming the laws to provide certain protections from liability abuses related to volunteers serving nonprofit organizations and governmental entities.”

42 USC 14501 Sec. 2(b)

The Act preempts state law unless the state law provides greater protections to volunteers. Interestingly, it also authorizes states to enact laws under certain prescribed circumstances allowing civil suits against volunteers. Section 3(b).

July 21, 2024

Jeffrey P. Gale, P.A. // Comparative Fault Not Part of Manfredo Formula Equation

by Jeffrey P. Gale, P.A.

Not infrequently, both a workers’ compensation case and a personal injury liability case will arise from the same accident. For example, a construction site supervisor involved in a motor vehicle crash while traveling to Home Depot for supplies can pursue workers’ compensation benefits from the employer and civil liability damages from the at-fault party.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

FLORIDA INJURY ATTORNEY BLAWG