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July 29, 2022

Jeffrey P. Gale, P.A. // The Federalist Society Opposes Civil Jury Trials for Average Citizens

The Seventh Amendment to the United States Constitution provides as follows:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The first ten amendments to the Constitution are known as the Bill of Rights. They were proposed by James Madison, the fourth president of the United States, in a speech before Congress on June 8, 1789. Here’s what he said in that speech about jury trials:

Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre—existent rights of nature.

The Federalist Society is a conservative American legal organization. Former members include current U.S. Supreme Court justices Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, John Roberts, Samuel Alito, and Amy Coney Barrett. The society’s logo is a silhouette of James Madison and its website displays his portrait at the bottom.

July 27, 2022

Jeffrey P. Gale, P.A. // Unrelated Works Exception to Workers’ Compensation Immunity Does Not Apply to Employees of a Different Subcontractor

by Jeffrey P. Gale, P.A.

It is the job of every injury lawyer to maximize the client’s recovery. Sometimes when a person is hurt at work, more than one remedy is available. Workers’ compensation is one remedy. Civil law is another.

Florida’s workers’ compensation laws do not allow for the recovery of noneconomic damages such as pain and suffering. Workers’ compensation covers only authorized medical expenses and a defined period of lost wages. Noneconomic damages are not allowed. Civil remedy damages include economic damages such as medical expenses and lost wages as well as noneconomic damages.

Florida Statute 440.11 provides immunity to employers and their employees from civil remedy actions. There are exceptions to this rule. The exceptions are outlined in 440.11. The employer loses its immunity if it fails to maintain the workers’ compensation security required by Chapter 440 or commits an intentional tort. Section 440.11(1)(b) describes the fellow-employee exceptions:

Fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment. (Italics added.)

In Moradiellos v Gerelco Traffic Controls, Inc., 176 So.3d 329 (Fla. 3rd DCA 2015), Mr. Moradiellos was killed in a construction site incident caused by the negligence of a subcontractor’s employee. Employees of construction subcontractors typically also get the 440.11 workers’ compensation immunity. The decedent was employed by the general contractor.

August 22, 2021

Jeffrey P. Gale, P.A. // Health and Disability Insurance Reimbursement Rights in Florida Personal Injury Cases

by Jeffrey P. Gale, P.A.

It is common for health and disability (lost wages) insurance companies to pay benefits to their insureds who have been injured through the negligence of others. Most of the insurance policies contain language granting the insurance company a right of reimbursement for the money it has paid out from the proceeds recovered by the insured in the personal injury case for the same losses.

How much must be repaid depends on policy language and who is paying the settlement or judgment in the personal injury case.

Many of the insurance policies provide that the carrier has the right to be reimbursed in full up to the amount recovered in the liability case before the insured and the insured’s attorney receive penny one. When the compensation is paid by a tortfeasor, who is the person or entity responsible for causing the harm, reimbursement is determined by the formula set forth in section 768.76(4), Florida Statutes. The statutory formula applies even where the insurance policy calls for full reimbursement to the carrier first. In Ingenix v. Ham, 35 So.3d 949 (Fla. 2nd DCA 2010), Gerald Ham’s health insurer, UnitedHealthcare, paid almost all of Ham’s medical bills relating to a medical procedure that ultimately resulted in his death. After settling with the medical providers (i.e., tortfeasors) in a medical malpractice lawsuit, Ham’s estate contended that it was only required to reimburse UnitedHealthcare a reduced amount according to the formula set out in section 768.76(4), Florida Statutes (2008). UnitedHealthcare took the position that it was entitled to full reimbursement in accordance with the language of its policy. The court held that section 768.76(4) controlled, limiting UnitedHealthcare’s reimbursement to the formula under section 768.76(4).

June 13, 2021

Jeffrey P. Gale, P.A. // Two-Tiered Analysis Required Under F.S. 112.18(1) a/k/a the “Firefighter’s Presumption” or the “Heart-Lung” Statute When Disabling Condition Results From a Combination of an Underlying Condition With a “Triggering Event.”

by Jeffrey P. Gale, P.A.

In City of Jacksonville v. Ratliff, 217 So. 3d 183 (Fla. 1st DCE 2017), a firefighter with a pre-existing history of diabetes, high cholesterol, prior history of smoking, and a family history of early onset CAD – blocked arteries (CAD – coronary artery disease) caused by the build-up of plaque – among other pre-existing factors, suffered a myocardial infarction (another term for heart attack) after a stressful meeting at work. The myocardial infarction resulted from the rupture of the plaque.

The Employer/Carrier (E/C) presented uncontroverted evidence that the CAD was caused by preexisting factors unrelated to work. Nevertheless, the Judge of Compensation Claims (JCC) awarded compensation and related medical treatment for the myocardial infarction under the “heart-lung” statute, section 112.18, Florida Statutes. E/C appealed. The First DCA affirmed the JCC’s decision.

The Claimant asserted compensability of the heart condition on a “presumption only” basis; or in other words, the Claimant had no medical evidence of occupational causation and relied solely on the presumption of the “heart-lung” statute. To rebut the presumption, E/C faced only the threshold rebuttal burden of presenting competent evidence, rather than clear and convincing evidence, that the disease was not work related. This required E/C to provide evidence that a single factor, or multiple factors, wholly combined, causing the CAD were non-industrial in nature. Punsky v. Clay Cty. Sheriff’s Office, 18 So.3d 577 at 583 (Fla. 1st DCA) (on rehearing en banc); Fuller v. Okaloosa Corr. Inst., 22 So.3d 803, 806 (Fla. 1st DCA 2009).

E/C met its burden. Even still, it was held responsible for Claimant’s heart attack.

November 9, 2020

Jeffrey P. Gale, P.A. // Our Views on the 2020 Presidential Race

by Jeffrey P. Gale, P.A.

We 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.

September 11, 2020

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation EMA “Super Doc” Not Always Super

by Jeffrey P. Gale, P.A.

Almost 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).

May 30, 2020

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Law — Coronavirus in the Workplace

by Jeffrey P. Gale, P.A.

It is fairly certain that until an effective vaccine is created to control Covid-19 (a.k.a.
“Coronavirus”), the virus will continue to spread from human-to-human contact. With the reopening of businesses, the threat of being infected in the workplace is real. If an employee can prove that his coronavirus infection came from the workplace, he would be entitled to workers’ compensation benefits (including medical and indemnity). The trick is in proving the case.

There are two possible approaches. One approach is to view the infection as an occupational disease and pursue relief under s. 440.151, Florida Statutes. To succeed under this section of Chapter 440, the employee must establish the following elements:

The virus has resulted from the nature of the employment in which the employee was engaged under such employer. Section 440.151(1) explains “nature of employment” this way: “in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations”.
The virus was actually contracted while so engaged.
The nature of the employment was the major contributing cause of the disease.

Because the virus knows no boundaries, establishing that it was contracted in the workplace and resulted from the nature of the employment is going to be exceedingly difficult in most cases. While there may be some types of employment, say, medical staff in hospitals, where the elements will be easier to satisfy, the burden of proof in most cases may be too great to overcome. Making matters worse is that in cases involving occupational disease, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. s. 440.09(1). This is a higher standard of proof than for many other types of workplace injuries. The lower standard is, “to a reasonable degree of medical of medical certainty.” Section 440.09(1), Florida Statutes.

March 7, 2020

Jeffrey P. Gale, P.A. // Permanent Injury Not Required if Tortfeasor Does Not Have Insurance Policy Complying With Florida PIP Law

by Jeffrey P. Gale, P.A.

Florida is one of only a handful of states that operates under a No-Fault system for paying medical expenses incurred in connection with motor vehicle accidents. Florida’s No-Fault Law, commonly referred to as “PIP” (personally injury protection, is contained in sections 627-730-627.7405 of the Florida Statutes. There is a dollar limit as to how much is covered under the No-Fault Law. Section 627.736(1) provides as follows:

REQUIRED BENEFITS.—An insurance policy complying with the security requirements of s. 627.733 must provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in the motor vehicle, and other persons struck by the motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to subsection (2) and paragraph (4)(e), to a limit of $10,000 in medical and disability benefits and $5,000 in death benefits resulting from bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle….

Florida jurisprudence allows individuals involved in accidents to seek damages for pain, suffering, mental anguish, and inconvenience because of bodily injury. These are known as non-economic damages. Florida’s No-Fault Law makes obtaining these damages in motor vehicle crash cases more difficult than in other types of accident cases. This is because of the unique requirements outlined in s. 627.737(2):

In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for her or his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, or disease arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:

(a) Significant and permanent loss of an important bodily function.

(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

(c) Significant and permanent scarring or disfigurement.

(d) Death.

The primary battleground in the fight for non-economic damages is part (b), which involves more subjectivity than parts (a), (c), and (d). Typical examples include claims of back, neck, and knee pain. Defendants argue that there hasn’t been an injury or that an injury, as visualized in diagnostic testing such as x-rays and MRI imaging, is preexisting and unrelated to the accident.

November 23, 2019

Jeffrey P. Gale, P.A. // Workers’ Compensation Employers/Carriers May Sue to Recover Personal Injury Damages

by Jeffrey P. Gale, P.A.

Most workers’ compensation and personal injury lawyers have had the occasion to deal with workers’ compensation liens. The lien, which is established by section 440.39, Florida Statutes, becomes an issue when the injured employee who has received workers’ compensation benefits also receives compensation from a third party tortfeasor in connection with the same accident. (While employers have workers’ compensation immunity providing protection against civil liability, many work-related accidents are caused by parties that don’t have the immunity.) The instructions for handling the lien are set forth in 440.39(3)(a) and Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990). (Read this blog for further explanation: Florida Workers’ Compensation Liens — 440.39, the Manfredo Formula, etc.)

Few lawyers realize that workers’ compensation employers and carriers (E/C) may bring a lawsuit against the third party tortfeasor in the claimant’s name in an effort to recoup their expenditures. This is authorized by 440.39(4)(a). The right is limited to a one year period, from the period beginning one year after the cause of action has accrued to two years following accrual of the action, and may only be brought if the workers’ compensation claimant fails to bring the suit within one year of the cause of action. If E/C fails to bring suit during this one year time period, it loses the right to do so. 440.39(4)(b).

Regardless of who brings the lawsuit, the rights of both the E/C and the claimant must be taken into account. E/C cannot disregard the claimant’s right to a say in the third party damages and the claimant cannot ignore E/C’s 440.39 lien right.

July 24, 2019

Jeffrey P. Gale, P.A. // Post-Settlement/Post-Judgment Payment of Medical Expenses by Health Insurance

by Jeffrey P. Gale, P.A.

Once a case involving personal injuries has been settled or resolved by the payment of a final judgment, the injured party will receive no more money from the closed matter to cover any later incurred expenses such as those for medical care. This rule applies in both civil and workers’ compensation cases.

The question often arises as to whether health insurance will cover post-resolution incurred expenses. The answer depends on the type of coverage available. Medicare, for example, will not cover expenses for which a person has been compensated in an underlying personal injury or workers’ compensation case unless a pre-determined portion of the compensation is first exhausted. The amount that must be exhausted is set forth in what is known as a Medicare Set Aside Arrangement. In contrast, medical benefits available through the Veterans Administration are not subject to being offset against funds recovered in the underlying accident case. These are the two extremes. Health insurance benefits provided through ERISA plans and the Affordable Care Act fall somewhere in between.

A majority, albeit dwindling, number of Americans receive group health insurance through their employers. (The trend is for employers to reduce employee work hours to avoid having to provide group health insurance.) The rights and duties of insureds and insurers under these plans is governed by a federal law known as ERISA (Employee Retirement Income Security Act), see 29 U.S.C. §§ 1001-1461. Many other individuals are covered by individual insurance policies mandated by the Affordable Care Act (ACA), also known as “Obamacare.” Even though ERISA plans must meet certain ACA requirements, in various other important respects the plans are less consumer friendly than individual ACA policies, which are governed by Florida law for Florida issued policies. Two of the most significant differences involve challenging the denial of claims and carrier subrogation rights.