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November 9, 2020

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

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.

July 3, 2019

Jeffrey P. Gale, P.A. // Where We Stand

by Jeffrey P. Gale, P.A.

FACEBOOK POSTS:

July 2, 2019

For G_D’s sake, Trumpis, come to your senses already. Trump’s oddness is not genius. He’s a nincompoop.

February 24, 2019

Jeffrey P. Gale, P.A. // The Peculiar Matter of Split Sample (Specimen) Urine Collection in Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

Employers and their workers’ compensation insurance companies (E/C) relish the opportunity to deny benefits to employees injured on the job. One of the most powerful weapons in their ample arsenal is the section 440.09(3), Florida Statutes drug defense. It reads as follows:

(3) Compensation is not payable if the injury was occasioned primarily by … the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician….

Urine is the specimen of choice for drug testing. It is collected from the donor at a collection site or directly from the injured worker’s urine bag when urinating into a cup cannot be accomplished.

January 18, 2019

Jeffrey P. Gale, P.A. // Where We Stand

by Jeffrey P. Gale, P.A.

FACEBOOK POSTS:

January 18, 2019

Americans are about to learn in detail that Trump and Putin colluded on a massive scale to dupe American voters. So far, we’ve only seen the tip of the proverbial iceberg.

November 5, 2018

Jeffrey P. Gale, P.A. // Workers’ Compensation Temporary Partial Disability Benefits Following Relocation

by Jeffrey P. Gale, P.A.

Per section 440.15(4), Florida Statues, Temporary Partial Disability (TPD) benefits are due “if the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work … or an employee returns to work with the restrictions resulting from the accident and is earning wages less than 80 percent of the preinjury average weekly wage.” Does this provision allow an injured worker who has left a job to relocate to a different city or state, to receive TPD? The answer depends on the motivation of the worker for leaving the job.

In Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173 (Fla. 1st DCA 2003), the Claimant left a modified duty job following an industrial accident and relocated to Pensacola because he and his wife were having marital problems and he thought he needed “to be with his family, be back home with [his] mom.” (His wife confirmed this testimony.) While in Pensacola he tried without success, due to his industrial injuries, to maintain a job. Two months later he returned to the job he had left. He also filed a claim for workers’ compensation TPD benefits for the period of time he was in Pensacola.

The workers’ compensation carrier denied the claim for TPD, contending that Claimant voluntarily limited his income. The Judge of Compensation Claims (JCC) agreed, finding that Claimant’s loss of earnings after his employment with the city of Pensacola and before returning to work was “not the result of an injury related disability, but rather the result of his voluntary hiatus from the job he ultimately returned to.” Claimant appealed the JCC’s decision.