Workers' Compensation

September 11, 2020

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

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).

September 10, 2020

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation: Creating Compensability of Injuries by Operation of Law (The “120-Day Rule”)

by Jeffrey P. Gale, P.A.

Few parts of Chapter 440 of the Florida Statutes demand as much attention from the workers’ compensation insurance carrier as section 440.20(4), Florida Statutes. It provides:

If the carrier is uncertain of its obligation to provide all benefits or compensation, the carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits as required under subsection (2) or s. 440.192(8). Additionally, the carrier shall initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable, without prejudice and without admitting liability. Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation as required under subsection (2) or s. 440.192(8) waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period. The initial provision of compensation or benefits, for purposes of this subsection, means the first installment of compensation or benefits to be paid by the carrier under subsection (2) or pursuant to a petition for benefits under s. 440.192(8).

It is not always easy to determine which injuries are work related. This is why section 440.20(4) gives E/C 120 days to investigate and decide. Doctors can be questioned, medical records can be reviewed, witnesses and the injured worker can be deposed.

Absent a showing that material facts relevant to the issue of compensability could not have been discovered through reasonable investigation within the 120-day period, an E/C who intentionally provides benefits, but fails to deny compensability within 120 days waives its right to contest an injury “arose out of, and occurred within the course and scope of, the claimant’s employment. North River Ins. Co. v. Wuelling, 683 So. 2d 1090, 1092 (Fla. 1st DCA 1996) (en banc).

July 25, 2020

Jeffrey P. Gale, P.A. // Election of Remedy Key to Pursuing Civil Action for Personal Injuries Against Employers and Subcontractors

by Jeffrey P. Gale, P.A.

Florida statute 440.11 precludes workers injured on the job from recovering damages from the employer at law or in admiralty on account of such injury or death. Damages at law or in admiralty include non-economic damages such as pain and suffering. It is a common law remedy. Damages for pain and suffering are not available under Florida’s workers’ compensation system. Basically, workers’ compensation benefits are limited to medical and indemnity. Statute 440.10 extends the 440.11 immunity to contractors and subcontractors on the same project who are not the injured worker’s actual employer. They are considered statutory employers.

It is every personal injury lawyer’s job to maximize his or her client’s recovery. In most workplace accidents, the injured worker is limited to workers’ compensation benefits, leaving the personal injury lawyer without a role. (Our law firm handles both personal injury and workers’ compensation cases.) This is not only because of 440.10 and 440.11. In many instances, there is nobody to blame for the accident other than the employee.

Are there exceptions to 440.10 and 440.11? Yes. To succeed against the actual employer, the employee must demonstrate that the employer’s conduct rose to the level of intentional conduct substantially certain to result in injury. To make good on a case against a 440.10 entity, the employee must show that the accident was caused by gross negligence. Gross negligence requires:

1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril, 2) knowledge or awareness of the imminent danger on the part of the tortfeasor, and 3) an act or omission that evinces a conscious disregard of the consequences. Kline v. Rubio, 652 So. 2d 964, 965-66 (Fla. 3d DCA 1995).

Under certain circumstances, an employee may pursue these common law remedies after receiving workers’ compensation benefits. At least one case, Vellejos v. Lan Cargo SA, appears to have allowed the pursuit after the workers’ compensation case was settled and a broad release was signed. (Vellejos, the injured worker, sued a subcontractor alleging gross negligence. The appellate court said he had the right to do so, but upheld the trial court’s summary judgment dismissal on the basis that, as a matter of law, no reasonable jury to conclude that the facts constituted gross negligence. The opinion is confusing and has not been cited as authority by any other appellate courts.)

A person injured while working has the right to elect between two different remedies — workers’ compensation and common law — for compensation. “However … the point upon which a worker’s action with regard to a compensation claim constitutes an election of the workers’ compensation remedy to the exclusion of a civil action is not entirely clear.” Jones v. Martin Electronics, Inc., 932 So. 2d 1100, 1105 (Fla. 2006). Florida courts have clearly stated that the “[m]ere acceptance of some compensation benefits . . . is not enough to constitute an election” of remedies. Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984) (quoting Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 254 (Alaska 1976)); see also Wheeled Coach Indus., Inc. v. Annulis, 852 So.2d 430, 432 (Fla. 5th DCA 2003); Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000); Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA 1995); Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991).

There are also the cases where, because the compensability of the claim or the status of the employee at the time of the injury was contested, an election was not made: Vasquez v. Sorrells Grove Care, Inc., 962 So. 2d 411, 415 (Fla. 2d DCA 2007) (noting that the carrier contested the compensability of the claim and whether Vasquez was an employee); Hernandez v. United Contractors Corp., 766 So. 2d 1249, 1252 (Fla. 3d DCA 2000) (holding that because the carrier contested the compensability of the claim and took the position that there was no evidence that the accident arose out of and in the course and scope of Hernadez’s employment, there was no conclusion on the merits); Lowry v. Logan, 650 So. 2d 653, 658 (Fla. 1st DCA 1995) (“there remain disputed issues of fact concerning whether Lowry is an [sic] covered employee or an independent contractor and whether he was injured in the course and scope of his employment”); Wright v. Douglas N. Higgins, Inc., 617 So. 2d 460, 461-62 (Fla. 3d DCA 1993) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case); Wishart v. Laidlaw Tree Serv., Inc., 573 So. 2d 183, 184 (Fla. 2d DCA 1991) (“The critical issue of fact which must be determined by the trial judge is whether the employee was injured in the course and scope of his employment.”); Velez v. Oxford Dev. Co., 457 So. 2d 1388, 1391 (Fla. 3d DCA 1984) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case).

July 20, 2020

Jeffrey P. Gale, P.A. // Overcoming Workers’ Compensation Immunity in Florida Construction Accidents — Hooking Subcontractors

by Jeffrey P. Gale, P.A.

Florida lawyers handling accident cases are obligated to make every effort to search out all potential revenue sources to justly compensate their clients. Typically, people harmed in the workplace are entitled to workers’ compensation benefits, which are furnished by employers and their workers’ compensation insurance carriers (“E/C”). Because of the legal concept of workers’ compensation immunity, which is set forth in section 440.11, Florida Statutes, in most instances workers’ compensation is the only form of compensation a worker injured on the job will receive. While workers’ compensation serves a valuable purpose, it also has limitations. The most prominent of those limitations is that compensation is never paid for non-economic damages such as pain and suffering.

In some cases, the workplace injury is caused by a person or entity unrelated to the employer, commonly referred to as a “third party.” This may give the injured worker the opportunity to recover both workers’ compensation benefits from the E/C and civil law damages from the at-fault party. For example, an elevator repairman injured in a rear-end car crash while driving from one job site to another, is free to pursue civil damages against the driver, the owner of the vehicle, and the driver’s employer as the case may be. This is because none of these third party entities has workers’ compensation immunity.

July 12, 2020

Jeffrey P. Gale, P.A. // Some Sanity to Florida’s Workers’ Compensation One-Time (1x) Doctor Change Law

by Jeffrey P. Gale, P.A.

From the perspective of injured workers, I am a frequent critic of Florida’s Workers’ Compensation System. Of the many inequities built into the System, I reserve my greatest disdain for its rules on the provision of medical care. Essentially, employers and their workers’ compensation insurance carriers get to pick all of the treating doctors. Because most of these doctors derive a large percentage of their income from workers’ compensation cases, they naturally tend to render opinions favorable to the employers/carriers (E/C). If they don’t, they will stop getting workers’ compensation cases from the E/C.

The System gives injured workers very little leeway to overcome this built-in bias. Section 440.13(2)(f), Florida Statutes (2019) gives workers an inkling of an opening. The section provides as follows:

Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary. (Bold added for purposes of this blog.)

At best, it is a tiny opportunity. Because Employers/Carriers keep lists of favored doctors, once a “one change” request is made it is easy for them to pick another friendly doctor from a list to assure that the opinions rendered by doctor “B” are just as beneficial to their interests as the opinions given by doctor “A.” On rare occasions, the E/C will fail to authorize a physician within the 5 day period outlined in the statute. When this happens, the injured worker (Claimant) can choose his or her own doctor. However, it is not always easy for Claimants to find doctors willing to provide care without a guarantee of being paid. Even though the statute says that “such physician shall be considered authorized,” not every doctor is willing to undertake care based just on assurances from the Claimant’s attorney. They want pre-authorization from the workers’ compensation E/C. Unfortunately, most employers/carriers will not concede their statutory obligation without a fight. Claimants must sometimes waits months for the authorization to come through. Given the seriousness of certain medical conditions, this is not always feasible. Thankfully, our law firm has developed relationships with many fine medical providers who are willing undertake care on our assurances alone knowing we will fight to get them paid.

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.

May 23, 2020

Jeffrey P. Gale, P.A. // Tolling Florida’s Workers’ Compensation Statute of Limitations (SOL)

by Jeffrey P. Gale, P.A.

Our firm recently received a phone call from a highly distraught gentleman claiming that his Florida workers’ compensation case was closed as a result of running afoul of the system’s statute of limitations. After a lengthy question and answer session, I concluded that his only possible avenue of recourse was a malpractice case against his workers’ compensation lawyer. This is not the answer he wanted to hear.

Florida’s workers’ compensation statute of limitations is codified in Florida Statute 440.19. Subsection (1) describes the SOL as being “within 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.” Subsection (2) sets forth a mechanism for extending this period, worded as follows:

Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment.

The gentleman with whom I spoke had a serious accident in 2008 when falling through a glass window. He has undergone four surgeries and has a fifth scheduled to remove glass from his leg. (The fifth surgery is scheduled with a Medicare doctor.) He was recently told by his workers’ compensation lawyer that his workers’ compensation case is closed because none of the subsection (2) factors set forth above were met.

It became apparent from our discussion that the lawyer was correct. However, it also became apparent that the fault for this, at least in part, might lie with the lawyer. While insurance carriers can sometimes account for the inadvertent failure of a claimant to take actions necessary to keep within the SOL, which would give the claimant another chance, I saw none of that in this case. (See these blogs for examples of carrier responsibility: Jeffrey P. Gale, P.A. // Neglecting Duty Prevents Application of Workers’ Compensation Statute of Limitations; Jeffrey P. Gale, P.A. // Navigating Florida’s Tricky Workers’ Compensation Statute of Limitations (SOL); Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Law — Estoppel as a Response to Trickery and Neglect.)

March 10, 2020

Jeffrey P. Gale, P.A. // UM/UIM Not Subject to Florida Workers’ Compensation Lien. However, Beware!

by Jeffrey P. Gale, P.A.

Workers injured in motor vehicle crashes while in the course and scope of employment may be eligible for compensation through uninsured/under-insured (UM/UIM) motor vehicle insurance. UM covers losses sustained by the insured, passengers, and family members through the fault of a party who fails to maintain Bodily Injury (BI) insurance. Hit-and-run and “phantom vehicle” scenarios also fall under UM coverage. UIM covers losses that exceed the limits of coverage available under the at-fault party’s BI insurance. Those same injured workers could also be eligible for workers’ compensation benefits for the same accident.

Section 440.39(3)(a), Florida Statutes (2019) states that in actions by the employee against a tortfeasor, the employee or his representative “shall sue for the employee individually and for the use and benefit of the employer, if a self insurer, or employer’s insurance carrier, in the event compensation benefits are claimed or paid….” Id. This means that the workers’ compensation insurance carrier has a lien against any judgment or settlement ultimately recovered by the employee. Id.

UM/UIM benefits are not subject to the workers’ compensation lien. See Volk v. Gallopo, 585 So.2d 1163 (Fla. 4th DCA 1991).

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.

October 8, 2019

Jeffrey P. Gale, P.A. // Obtaining Permanent Total Disability Benefits Under the Longshore & Harbor Workers’ Compensation Act (LHWCA)

by Jeffrey P. Gale, P.A.

“Disability” under the Longshore and Harbor Workers’ Compensation Act (LHWCA) means “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment * * *.” § 902(10).

The big disability compensation prize under the The Act is Permanent Total Disability. The benefit is described in Section 908(a) of the Act as follows:

In case of total disability adjudged to be permanent 66 2/3 per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability.