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The defense of Florida workers’ compensation claims under Martin v. Carpenter, 132 So.2d 400 (Fla. 1961) and Florida Statute 440.15(5)(a) are employer/carrier favorites. While similar, the defenses are not entirely alike.

The case and statute deal with misrepresentations made by job seekers concerning medical history. Under Martin, applicants who lie about their medical history can be denied workers’ compensation benefits for otherwise compensable claims when the evidence shows:

1. Causal relationship between the injury and the false representation;
2. The employee knew the representation to be false;
3. The employer relied on the false representation; and
4. Such reliance resulted in consequent damage to the employer.

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The life of a personal injury lawyer is precarious. Serious pitfalls lurk around every corner. One of the scariest dangers is the unknown medical lien. Of this breed, the Medicare lien can have the biggest bite.

In 1965, Congress enacted the Medicare Act by adding Title XVIII to the Social Security Act, with the purpose of establishing a “federally funded health insurance program for the elderly and the disabled.” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 506 (1993). It is taxpayer funded.

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Following a car crash, Florida car insurance companies are required to pay 80% of their own insureds’ medical expenses and 60% of their lost wages until coverage is exhausted at a combined $10,000. The requirement applies regardless of who caused the accident.

In 1972, the Florida Legislature crafted a law, known as the “Florida Motor Vehicle No-Fault Law,” for application in motor vehicle accident cases. Every owner or registrant of a Florida motor vehicle — there are exceptions — became obligated to maintain Personal Injury Protection (PIP), an insurance coverage designed to pay medical expenses and reimburse lost wages up to $10,000 (less deductibles) without regard to fault. The purpose of the law was to provide important benefits quickly without having to fight over fault — similar to workers’ compensation. PIP remains the law in Florida.

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It is not uncommon in personal injury cases that some medical bills are paid by health insurance and Medicare. These payments should not be ignored by any of the parties to the personal injury case, especially the injured party.

These sources must be repaid from the proceeds of any recovery made in the personal injury case. (Note: PIP, which is mandatory no-fault motor vehicle medical insurance, does not have to be reimbursed.)

While it may be possible to negotiate the repayments, it is, of course, important to know how much is owed. Making this determination can depend on when the payments were made in relationship to when the personal injury case was settled.

This cutoff date varies depending on the entity involved.

HEALTH INSURANCE: The cutoff date depends on whether or not the health insurance policy is subject to ERISA. If it is not, the lien ends at the date of settlement. See Florida’s collateral statute — 768.76. It is fairly well established (although not conclusively — see Coleman v. Blue Cross and Blue Shield of Alabama, Inc. So.3d , 35 FLW D2718 (Fla. 1st. DCA 12-8-2010) for a contrary view) — that the collateral source statute does not apply to ERISA plans. ERISA lien rights are controlled by the subrogation/reimbursement language in the Summary Plan Description (SPD). The SPD should be requested, but in all likelihood its provisions are expansive, allowing for the recovery of all charges related to the accident including those made post-settlement. The plan may provide that it is not responsible for covering post-settlement accident related care.

Because ERISA laws strongly favor the carriers, dealing with ERISA liens is never pleasant. Nevertheless, we drive a hard bargain. We sometimes begin negotiating by making a low ball offer to repay 30% of the lien amount coupled with a request that the insurance carrier agree to cover future accident-related medical expenses. Another approach is to argue for a 40+% discount to account for attorneys fees and costs incurred in securing the recovery.
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There was a time when few personal injury lawyers gave a moments thought to satisfying liens when wrapping up personal injury cases. Medicare liens, most especially.

Woe is the fate of the personal injury lawyer who operates that way today.

Medicare is a federal program that provides medical insurance to qualified elderly and disabled persons. However, with regard to medical expenses for which a third party (e.g., tortfeasor) bears responsibility, it is a secondary payer. 42 U.S.C. § 1395y(b)(2). While Medicare will cover medical expenses in personal injury cases, it has the legal right to be reimbursed from the proceeds of third party payments.

Se difisil pou konprann kiles ki ka kalifye pou konpansasyon anba “Lalwa Sivivan Lanmò Abizif nan Florid,” seksyon 768.16 jiska 768.26; se tankou konplete yon devinèt. Anba gen yon tablo ki fasil a konprann ki montre enfòmasyon sa a epi ki kalite konpansasyon ki ka disponib. En patikilye, seksyon 768.21 e enpotan anpil. Tablo a esplike seksyon sa a.

Dapre lalwa a, se sèlman “sivivan legal” ak byen moun ki mouri te kite dèyè a ki kalifye pou konpansasyon ki koze pa zak entansyonèl oswa neglijans ki fèt pa yon twazyèm pati. Yon Reprezantan Pèsonèl (RP), souvan yon manm fanmi pre moun ki mouri a, se nonmen pa tribinal la, apre yo fin bay avi pou lòt pati ki ka enterese nan jere byen moun ki mouri te kite dèyè a. Reprezantan nan anboche yon avoka pou jwenn dedomajman anba lalwa. Lòt sivivan ka anboche avoka pa yo, men, ofisyèlman, yo dwe avanse anba Reprezantan Pèsonèl epi avoka ki chwazi pa RP la. Tipikman, tout sivivan yo dako ak chwa RP la. Avoka la oubyen avoka yo okipe dosye a sou yon baz kontenjan, sa vle di RP, sivivan, ak byen moun ki mouri te kite dèyè a, pa oblije peye frè avoka davans. Si avoka rive jwenn bon rezilta ak dosye a, avoka a resevwa yon pousantaj nan dedomajman an ak tout frè ki asosye ak pouswit dedomajman an.

Ki moun ak kisa ki ka dedomaje anba lalwa varye selon sikonstans dosye a. Lalwa sa te defye anpil fwa nan tribinal la, men li toujour rete lalwa. Se selman aksyon Lejislati nan Florid la ki ka chanje lalwa a.

Moun ki andomaje nan travay ap fè fas ak yon gwo pwoblèm sou zafè dwa yo genyen anba sistèm konpansasyon pou anplwaye ki andomaje nan travay nan Florid depi kòmansman’l nan ane 1935. Kèk nan peryòd sa yo te pi mal pase kèk lòt. Sepandan, pa gen yonn ki te ka pi mal pase tan Jeb Bush te sèvi kòm 43èm Gouvènè nan Florid soti nan ane 1999 rive nan 2007, ansanm ak yon chanm Depite ak Senatè ki te anba kontwòl Repibliken yo. Ansanm, yo te kraze sistèm lan.

Apre plizyè ane nan enjistis ak soufrans, li sanble yo pral kòmanse rekòlte sa yo te simen.

Anvan Florida te vini ak sistèm konpansasyon pou anplwaye ki andomaje nan travay la, pou yo te peye yon anplwaye ki andomaje pou jou travay li te pèdi epi pou ba li benefis medikal, li te bezwen bay anpil prèv aksidan te rive akòz neglijans travay la. Sa te yon tèt chaje ke lwa leta te rann pi difisil toujou sitou si yo te gen kèk prèv anplwaye a pat pran prekosyon oswa li te aksepte travay nan kondisyon ki te ka kreye pwoblèm sa yo. Sistèm sa te akoz anpil anplwaye pa resevwa benefis. Sistèm sa pat nan benefis konpayi travay yo tou ki te fè yo pase anpil tan nan pwosè.

“Rabbit from a hat.” That’s the description I have given to a case we recently handled with Domnick & Shevin PL.

I have blogged extensively about the indecent and dangerous immunity afforded medical providers under Florida’s wrongful death statute. (Gigantic Loophole in Florida’s Wrongful Death Act; Florida Wrongful Death Survivors Chart — Back by Popular Demand; Doctors Skirt Fault Under Florida’s Wrongful Death Act; Florida’s Wrongful Death Act Fosters Better-Dead-Than-Alive Philosophy In Medical Malpractice Cases.)

We found a way around the statutory immunity … sort of.

Section 768.21(8) of Florida’s Wrongful Death Act exempts medical providers from liability where the decedent dies without leaving behind a surviving spouse or minor children. Our office receives a stream of inquiries from adult children and the siblings of senior citizens whose deaths resulted from medical malpractice. Frequently, we are not the first law firm they have contacted. They have been informed that Florida law precludes a recovery. Very often, all we can do is confirm the bad news. Shock, dismay, and anger towards the system typically follow.
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Doctor selection under the Defense Base Act and the Longshore and Harbor Workers Compensation Act (LHWCA) is crucial. It can make the difference between fairness and injustice.

Through 42 U.S.C. 1651(a), the LHWCA is the substantive law for the Defense Base Act. Under the LHWCA, employers/insurance companies are required to provide injured workers with medical care. Injured workers have the right to choose one doctor. Once the selection is made, any change must come by agreement of the E/C or order of the Secretary of Labor’s office. Injured workers do not want to be reliant on either alternative. Accordingly, the initial choice is key.

Money has a tendency to corrupt. Sadly, doctors are not above being influenced by insurance company money to render false opinions unfavorable to their patients. Doing otherwise jeopardizes the flow of future insurance company business. This is why we see the same doctors being selected time and again in every type of workers’ compensation case, from state workers’ compensation cases, to Defense Base Act cases, to LHWCA cases.

Like sexual prostitutes, whore doctors do whatever is required to please the customer. Unlike sexual prostitutes, however, the immoral acts of whore doctors harm innocent victims … their own patients. So much for the Hippocratic Oath.

Given these harsh realities, it is especially important for injured workers to select their doctors carefully. There are many doctors of high principle who are not beholden to insurance companies. Lawyers who represent injured workers know who they are and can help in the selection process. Unfortunately, in a large percentage of cases the dye has already been cast by the time proper legal advice is sought. Most injured workers have already begun treating by the time they meet with a lawyer.
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Just as the Jones Act, the Federal law which governs personal injury cases involving seamen, relies on FELA, the Federal Employers Liability Act, established in the 19th century to protect railroad workers, for it’s substantive law, the Defense Base Act relies on the Longshore and Harbor Workers Act for its substance law.

42 U.S.C. 1651(a), the first clause of the Defense Base Act, states that the provisions of 33 U.S.C. 901 et seq. apply with respect to any employee of a defense contractor injured overseas in the course and scope of employment. Due to the relative underdevelopment of DBA jurisprudence, legal guidance in DBA cases often derives from LHWCA precedent.

Read our other blogs to learn the particulars of the DBA/LHWCA. It is a fascinating and complex area of the law with significant consequences for those who are severely injured and their loved ones.