Workers' Compensation

July 12, 2020

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

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.

September 2, 2019

Jeffrey P. Gale, P.A. // Injured Workers and the Fallacy of the Double Recovery

by Jeffrey P. Gale, P.A.

Despite what some people believe, injured workers who are compensated both under workers’ compensation and the civil legal system for the same accident, do not receive a double recovery, or windfall. Section 440.39(3), Florida Statues, authorizes workers’ compensation carriers to file a lien against the claimant’s recovery in the civil action. The lien attaches to benefits recovered in the civil matter that duplicate those received by the claimant in the workers’ compensation case, typically only medical benefits and wage compensation. (The common law allows damages for pain and suffering, and loss of spousal services, which are not provided for under the workers’ compensation act. The workers’ compensation lien does not attach to these damages.)

Even if the workers’ compensation carrier does not file a notice of lien in any subsequent civil action which would operate as a lien on any judgment in favor of the injured employee, Florida’s collateral source statute would at least prevent a double recovery on the part of the injured employee. See § 768.76(1), Fla. Stat. (2019). Section 768.76 states that “the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources….”

Importantly, § 768.76(1), Fla. Stat. (2019) goes on to say that “there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.” Florida courts have stated that “workers’ compensation benefits are a collateral source” within the meaning of the statute. Am. Mut. Ins. Co. v. Decker, 518 So.2d 315, 317 (Fla. 2d DCA 1987), adopted in Liberty Mut. Ins. Co. v. Chambers, 526 So.2d 66, 67 (Fla.1988).

August 31, 2019

Jeffrey P. Gale, P.A. // Particular Difficulties and Deceits Involving Long Term Disability Insurance

by Jeffrey P. Gale, P.A.

With a sizable portion of our law firm’s practice engaged in the representation of injured workers, we often tangle with issues related to long term disability insurance. LTD is commonly offered by employers to their employees as a fringe benefit. The employer either pays the full premium, a portion thereof, or nothing at all. One advantage of a group plan (employer based) over an individual plan is that the premium is typically lower due to economies of scale. On the other hand, disputes under group plans are more difficult for insureds to prosecute as compared to individual plans, as the former fall under the less consumer friendly federal ERISA law while the latter are governed by more equitable state laws. Group or individual, benefiting from LTD insurance can prove illusory.

An LTD insurance policy is a contract. Its terms control the rights and duties of the parties to the contract. Most LTD policies provide that LTD benefits will be offset against disability payments received from other sources such as workers’ compensation and Social Security Disability (SSD). For example: assume that the LTD policy provides for a $2,000 monthly payment for a qualifying disability. However, if the insured is receiving $500 per week from workers’ compensation or a monthly payment from Social Security Disability (SSD), the $2,000 LTD payment will be reduced by the amount of those payments. Hence, a $500 weekly payment from WC will reduce the LTD carrier’s obligation to zero. Not surprisingly, LTD does not rebate the premium to its insured under this circumstance.

LTD insurance carriers know that a large percentage of disabling injuries are work related. Because the qualifying requirements for workers’ compensation disability benefits and LTD are always similar, injured workers are usually just as likely to qualify for workers’ compensation benefits as they are for LTD benefits. LTD carriers also know that those who meet their qualifying standards can also be expected to qualify for SSD benefits. Only a tiny fraction of LTD policy consumers will not be eligible for one of the other benefits if not both.

August 15, 2019

Jeffrey P. Gale, P.A. // Election of Remedy

by Jeffrey P. Gale, P.A.

Accident victims can sometimes bring a legal claim seeking compensation for their losses. They may even have the option of electing a remedy between personal injury common law and workers’ compensation statutory law. The choice can be consequential.

Personal injury claims are cases at common law. In Florida, recoverable damages in personal injury claims include medical expenses, lost wages, and pain and suffering. In suits at common law, the 7th Amendment to the U.S. Constitution guarantees the right of trial by jury.

Workplace injury cases in Florida against employers can be limited to the statutory remedies outlined in Chapter 440 of the Florida Statutes. Cases are tried before administrative law judges (known as Judges of Compensation Claims, or JCC) and, unlike in personal injury cases, compensation for pain and suffering cannot be awarded.

Election of Remedy is a legal concept concerning:

The liberty of choosing (or the act of choosing) one out of several means afforded by law for the redress of an injury, or one out of several available Forms of Action. An election of remedies arises when one having two coexistent but inconsistent remedies chooses to exercise one, in which she or he loses the right thereafter to exercise the other. The Doctrine provides that if two or more remedies exist that are repugnant and inconsistent with one another, a party will be bound if he or she has chosen one of them. The Free Dictionary.

The doctrine “… is an application of the doctrine of estoppel and provides that the one electing should not later be permitted to avail himself of an inconsistent course.” Williams v. Robineau, 124 Fla. 422, 168 So. 644, 646 (1936).

While there is plenty of case law on the subject, it is still not entirely clear what constitutes an election sufficient to lock in the choice. This uncertainty was acknowledged by the Florida Supreme Court in Jones v. Martin Electronics, Inc., 932 So.2d 1100 (Fla., 2006): “[I]n the context of workers’ compensation, 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 @ 1105.

July 26, 2019

Jeffrey P. Gale, P.A. // Pre-Settlement Considerations for Claimants/Plaintiffs Receiving Both Medicare and Medicaid Benefits

by Jeffrey P. Gale, P.A.

Settling an injury case is not as easy as it once was. In the old days, cases would be settled with little or no consideration being given to satisfying liens and protecting an injured person’s right to receive post-settlement Medicare and Medicaid benefits. Rather than attorney neglect, much of this was due to weak and sometimes non-existent lien rights and undeveloped requirements for protecting the interests of Medicare and Medicaid. Times have changed. This blog will touch on the interplay between Medicare Set-Asides (MSA) and Medicaid’s means-tested Supplemental Security Income (SSI) benefits.

According to the Centers for Medicare & Medicaid Services (CMS), a “Medicare Set-Aside Arrangement (WCMSA) is a financial agreement that allocates a portion of a … settlement to pay for future medical services related to the … injury, illness, or disease. These funds must be depleted before Medicare will pay for treatment related to the … injury, illness, or disease.” While MSAs have been part of the workers’ compensation landscape for many years, it is unclear, despite years of discussion, whether they are required in personal injury cases. In cases involving serious injuries where the plaintiff will most definitely require future medical care, caution dictates considering, at least, the creation of an MSA.

Supplemental Security Income (SSI) “is a Federal income supplement program funded by general tax revenues (not Social Security taxes):

It is designed to help aged, blind, and disabled people, who have little or no income; and
It provides cash to meet basic needs for food, clothing, and shelter.”

The more countable income you have, the less the SSI payment will be. Moreover, if your countable income is over the allowable limit, you cannot receive SSI benefits at all.