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Florida law offers a mechanism for making non-compensable workers’ compensation injuries compensable. A key element to the equation is the date when the Employer/Carrier (E/C) knew or should have known that the injury may not be compensable. See Travelers Ins. Co. v. Collins, 825 So. 2d 451 (Fla. 1st DCA 2002).

Unless an accident is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought, the injury is not compensable. Section 440.09(1), Florida Statutes (2017). This principle allows the E/C to avoid furnishing workers’ compensation benefits when the combination of preexisting conditions exceed the need for care and treatment caused by the workplace accident. It is known as the major contributing cause (MCC) defense.

The E/C can waive this defense, either intentionally or inadvertently. The consequence of both is the same: the questionable injury becomes compensable.

An intentional waiver occurs when the E/C affirmatively decides that it will accept rather than contest compensability. The decision is always based on a cost analysis.

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handshake-268x300Various Florida statutes require court approval of wrongful death settlements and settlements involving minors (if the amounts received in the aggregate exceed $15,000; See Section 744.301(2), Florida Statutes (2017)). Does this mean that settlements in these situations cannot be negotiated to resolution by the parties without first obtaining court approval? The answer is that the parties can come to a binding agreement before presenting the deal to the court, with the understanding, however, that if the court rejects deal, the parties are unbound.

Berges v. Infinity Insurance Company, 896 So.2d 665 (Fla, 2004) is the leading case on the subject. It involved the wrongful death of a wife/mother and serious personal injuries to her minor child. After the surviving spouse/natural father of the minor child rejected the carrier’s late tender of its $10,000/$20,000 policy limits, the case proceeded to trial on the wrongful death claim and the personal injury claim. The jury returned a $911,400 verdict in favor of the estate on the wrongful death claim and a $500,000 verdict on the personal injury claim involving the minor. As a result of these combined verdicts, on the theory of bad faith the insured sought to make Infinity pay the full judgments. The jury found that Infinity acted in bad faith.

Infinity appealed the trial court’s judgment and the Florida Second District Court of Appeal reversed. According to the district court, “because Taylor [the surviving spouse/natural father of the minor] had neither been appointed personal representative of his wife’s estate nor been given court approval for the proposed settlement of his minor daughter’s claim, he was without authority to make a valid settlement offer to Infinity.” See Infinity Insurance Co. v. Berges, 806 So.2d 504, 508 (Fla. 2d DCA 2001). The Second District reasoned that the spouse/father’s offer to settle “was merely an expression of his intent to settle once he became authorized to make an offer.”

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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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worker2-300x223Section 440.13(5)(e), Florida Statutes (2016) limits who may give medical opinions in Florida workers’ compensation cases.

(e) No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.

The limitation tends to impair injured workers more than it does employers and their workers’ compensation insurance companies (collectively referred to as E/C). The reasons have to do with doctor selection and money.

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cemetery1-300x200Liability insurance policies issued in Florida that provide coverage for personal injuries contain a per person/per occurrence provision. The provision declares the limits of coverage available under the policy.

The Florida Wrongful Death Act outlines who may be compensated for the wrongful death of a person caused by the intentional act or negligence of a third party. The Act refers to these individuals as “Survivors.” Section 768.18(1) Florida Statutes (2016). (Link to this page to see a “Survivors” chart.)

As the chart shows, there can be multiple Survivors in a single case. How does the per person/per incident provision apply to the situation involving more than one survivor?

In Jones v. Zagrodnik, Dean Jones was killed in a collision with a negligent Roger Zagrodnik. Zagrodnik was insured by Home Insurance under a $100,000 per person/$300,000 per occurrence policy. There were three “Survivors.” The Fifth District Court of Appeal limited their recovery to a total of $100,000, reasoning that their claims were derivative from the deceased and fell under the per person limit of the policy.

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fox-292x300NCCI is the only entity that proposes rate increases/decreases to the Florida Office of Insurance Regulation (OIR). It is a private company that does not owe a fiduciary responsibility to the state’s residents. NCCI does not divulge its methodology or source information, calling it “proprietary.”

In 2016, the workers’ compensation insurance industry sent marching orders to NCCI to make the case for a dramatic increase in premiums charged to business owners. The case was presented to the Florida Office of Insurance Regulation and resulted in a 14.5% rate hike.

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