Uncategorized

June 14, 2017

Jeffrey P. Gale, P.A. // Learn Basic Rules of Giving Sworn Testimony from Jeff Sessions’ Testimony to Congress

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 Committee: 25 Times Jeff Sessions Had a Convenient Memory Lapse While Testifying. In our considered opinion, AG Sessions violated all of the above rules, especially #4.

June 10, 2017

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Law — Estoppel as a Response to Trickery and Neglect

by Jeffrey P. Gale, P.A.

Workers 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.

April 30, 2017

Jeffrey P. Gale, P.A. // Obtaining Multiple IMEs in Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

Section 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.

April 10, 2017

Jeffrey P. Gale, P.A. // Applying Florida Insurance Policy Per Person/Per Occurrence Coverage Limits in Wrongful Death Cases

by Jeffrey P. Gale, P.A.

Liability 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.

February 23, 2017

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation — Foxes Guarding the Henhouse

by Jeffrey P. Gale, P.A.

NCCI 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.

February 22, 2017

Jeffrey P. Gale, P.A. // Associated Industries of Florida Proposing Illusory Workers’ Compensation Legislative Changes

by Jeffrey P. Gale, P.A.

Stung from being held accountable by the Florida Supreme Court, Associated Industries of Florida (a/k/a Enemy of the People), commanded by Tom Feeney, he of the 2000 Presidential Election coup, is proposing, on behalf of itself and other workers’ compensation insurance companies, to abolish carrier-paid attorney’s fees.

In Castellanos v. Next Door Company, the Florida Supreme Court ruled that workers’ compensation insurance companies that force injured workers to institute legal proceedings to secure benefits may, in some instances, be required to pay the Claimant’s attorney a reasonable fee. The fee is due only when the injured worker successfully secures wrongly denied benefits. The court described carrier-paid fees as a sensible method of motivating insurance companies to follow the law without the need for judicial involvement (See, Judges of Compensation Claims.) In the court’s view, the threat is the proverbial stick Claimants must have at their disposal to get carriers to comply with the state’s workers’ compensation laws. The ruling was not issued in a vacuum. A long historical record shows that it works.

Which is why it is opposed by Associated Industries. AI abhors the idea of workers being able to compete for benefits on a level playing field. Its legislative proposal looks to slant the field back in its favor — the Castellanos justices spoke at length about leveling the playing field.

December 1, 2016

Jeffrey P. Gale, P.A. // Masters of Misinformation Play Public as Saps

by Jeffrey P. Gale, P.A.

This article — Frightened by Donald Trump? You don’t know the half of it — published in theguardian.com, paints a dire picture of what awaits the human race under a Trump Presidency. Civil trial lawyers are all too familiar with the insidious threat discussed in the article.

For more than 30 years, trial lawyers have been the target of these Masters of Misinformation. The Masters have systematically misinformed the public into believing that trial lawyers are the reason for the rising cost of insurance and medical care. One of the bellwether terms used in the misinformation campaign is “frivolous lawsuits.”

November 21, 2016

Jeffrey P. Gale, P.A. // Beware of Republican Shell Game on Pre-Existing Conditions

by Jeffrey P. Gale, P.A.

In the upcoming healthcare debate, watch carefully for a Republican shell game. In his 60 Minutes interview, Trump professed support for prohibiting insurance carriers from denying coverage for preexisting medical conditions. Left unsaid is whether carriers will be allowed to charge higher premiums based on preexisting conditions, a practice banned under the Affordable Care Act (a/k/a “Obamacare”).

With “Profits Over People” representing a fundamental Republican theological belief, it seems likely that their healthcare plan will allow price gouging on this issue just like before the ACA, essentially making illusory the promise of coverage for preexisting conditions.

November 20, 2016

Jeffrey P. Gale, P.A. // Post-Election Popular Vote vs. Electoral College Griping Off Base

by Jeffrey P. Gale, P.A.

Complaining now about the 2016 presidential election outcome based on the popular vote vs the Electoral College results is nonsense. It’s like a football team that was outscored arguing that it should be declared the winner because it controlled the clock and gained more yards than the other team. Them ain’t the rules.

For example, just this past Saturday my Florida Gators beat the LSU Tigers by the score of 16-10, even though LSU won the time of possession and yards gained statistics. I’ll take the W over the statistical victory.

October 26, 2016

Jeffrey P. Gale, P.A. // Winning Florida Workers’ Compensation Temporary Disability Benefits Without Supporting Medical Testimony

by Jeffrey P. Gale, P.A.

To receive wage loss benefits following an accident, injured workers must demonstrate a connection between the wage loss and their injuries. Wyeth/Pharma Field Sales v. Toscano, 40 So. 3d 795 (Fla. 1st DCA 2010). The most common way of accomplishing this is through medical testimony. Many people believe that it is the only way. It’s not.

Florida’s workers’ compensation system provides for two types of pre-maximum medical improvement indemnity compensation benefits, temporary partial (TP; section 440.15(4) Florida Statutes) and temporary total (TT; 440.15(2)). TP is for employees able to work with restrictions, TT is for employees unable to work.

The workers’ compensation insurance companies get to pick the doctors. Many of these doctors tend to favor the insurance companies in their opinions. One way they help is by limiting restrictions or assigning none at all.

Form DWC-25 is a form completed by the workers’ compensation doctors. Sections 21-23 address work restrictions. Workers’ compensation insurance companies typically refuse to pay indemnity benefits to injured employees who refuse or quit a job that is available within the DWC-25 restrictions.