Workers' Compensation

July 21, 2024

Jeffrey P. Gale, P.A. // Comparative Fault Not Part of Manfredo Formula Equation

Not infrequently, both a workers’ compensation case and a personal injury liability case will arise from the same accident. For example, a construction site supervisor involved in a motor vehicle crash while traveling to Home Depot for supplies can pursue workers’ compensation benefits from the employer and civil liability damages from the at-fault party.

Florida Statute 440.39(2) provides that “the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor.” This means that the employer and its workers’ compensation insurance carrier are entitled to recover a portion of their expenditures from money the injured employee receives from the at-fault third party.

Typically, it is not a dollar-for-dollar recovery. The formula for the recovery is contained in section 440.39(3)(a).

June 5, 2024

Jeffrey P. Gale, P.A. // Positive Course Correction in Florida Workers’ Compensation Law

by Jeffrey P. Gale, P.A.

I have railed for years against various aspects of Florida’s workers’ compensation system. One of my main targets has been section 440.13(9)(c), Florida Statutes, covered under the section of the statute dealing with “Expert Medical Advisors.” What bothered me about the law is that it excluded workers’ compensation judges, known as judges of compensation claims (JCC), from being able to perform an important job function.

Before the 2023 Florida legislative session, when there was a “disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work,” the JCC was mandated by 440.13(9)(c) to order the injured employee to be evaluated by an expert medical advisor whose opinion was presumed to be correct unless clear and convincing evidence demonstrated otherwise. Rarely did a JCC rule against the presumption.

May 2, 2024

Jeffrey P. Gale, P.A. // Gamesmanship Practiced by Florida Workers’ Compensation Doctors

by Jeffrey P. Gale, P.A.

Florida law authorizes employers and their workers’ compensation insurance carriers (“E/C”) to choose every one of an injured worker’s treating doctors. See, sections 440.13(2)(a) & (f), Florida Statutes. They pick medical providers, sometimes called “The Usual Suspects,” from whom they can expect to receive favorable opinions. Because the doctors like the steady and easy income, they play along. So much for honoring the Hippocratic Oath.

To receive workers’ compensation wage loss benefits, also known as indemnity benefits (see, sections 440.13(2)&(4), Florida Statutes), the burden is on the injured worker (a/k/a, Claimant) to establish a connection between the work-related injuries and any wage loss. In 2024, the weekly wage loss benefit can be as much as $1,260.

Medical providers authorized by the E/C are required to complete form DWC-25 after each appointment. Section IV of the form addresses the injured worker’s “Functional Limitations and Restrictions.” It contains three paragraphs (numbers 21, 22, and 23) for this purpose with corresponding boxes for the provider to check. Paragraph 21 indicates that the Claimant does not have any functional limitations. Paragraph 22 provides that the Claimant’s injuries are of such severity he cannot work. Paragraph 23 says that the Claimant can work with restrictions.

April 28, 2024

Jeffrey P. Gale, P.A. // Denial of Florida Workers’ Compensation Temporary Partial Disability Benefits Based on Voluntary Limitation of Income and Termination for Cause

by Jeffrey P. Gale, P.A.

We have a case in the office where our client, an injured worker, is being denied temporary partial disabililty (TPD/440.15(4)) benefits based on two defenses. The defenses, voluntary limitation of income and termination for cause, are at odds with one another.

Voluntary Limitation of Income Defense

Our client was fired from her job. She did not resign or refuse employment. In Carcamo v. Business Representation Internation & North River Ins. Co., 37 So. 3d 901 (Fla. 1st DCA 2010), the injured worker voluntarily resigned from suitable employment. The employer/carrier (E/C) denied her claim for TPD benefits. The judge of compensation claims (JCC) sided with E/C. The First DCA disagreed with the JCC and remanded the case for further factual findings.

The appellate court pointed out that a voluntary resignation does not alone support the denial of TPD benefits. Carcamo at 901. What must be taken into account is whether the claimant’s refusal was justifiable, section 440.15(6), Florida Statutes, and the continued availability of the job. See Moore v. Servicemaster Commercial Servs., 19 So.3d 1147 (Fla. 1st DCA 2009) (although employer not required to continually reoffer job to avail itself of statutory defenses based on unjustified voluntary limitation of income, employer must establish continued availability of job for each applicable period to obtain continued benefit of defense).

Our client, a single mother with sole custody of a young child, sustained a significant injury that required extensive surgical repair. After a lengthy recovery period, she was offered light duty work by the same employer. At the time of the job offer, our client and her daughter were living at her mother’s home in Georgia. Due to logistical issues, our client, who otherwise had an exemplary work history, showed up for work one week late. She was fired a few days later. She has not been contacted since by the employer to return to work.

February 12, 2024

Jeffrey P. Gale, P.A. // Avoiding Workers’ Compensation Immunity by Estoppel — Not So Fast!

by Jeffrey P. Gale, P.A.

Florida’s civil liability and workers’ compensation systems handle legal matters for people injured or who have died in accidents. The systems have some similarities and differences. The biggest differences are that the plaintiff must prove fault to recover under civil law, and recoveries for non-economic damages (such as pain and suffering) are not available in workers’ compensation cases. It is not always obvious which remedy route is the best to follow. Most of the time, the aggrieved party does not have a choice.

Employers and fellow-employees are immune from civil lawsuits for work-related accidents. See sections 440.10 and 440.11, Florida Statutes. In other words, the workers’ compensation system is the harmed individual’s exclusive remedy.

Exceptions arise when the employer has failed to secure the payment of workers’ compensation (440.10(1) and 440.11(1)(a)), the employer commits an intentional tort (440.11(1)(b), or the fellow-employee acts with willful and wanton disregard or unprovoked physical aggression or with gross negligence (440.11(1)).

Another exception may apply when 1) the employer makes a representation of a material fact that is contrary to a later-asserted position; 2) the harmed worker relies on that representation; and 3) the worker is damaged by changing his or her position in reliance on said representation. See Specialty Emp. Leasing v. Davis, 737 So. 2d 1170, 1172 (Fla. 1st DCA 1999) (quoting Dep’t of Revenue v. Anderson, 403 So. 2d 397, 400 (Fla. 1981)). This exception is known as equitable estoppel.

In McNair v. Dorsey, 291 So.3d 607 (Fla. 1st DCA 2020), McNair was injured while carrying a tree branch to a wood chipper. The employer first asserted that there was “no compensable accident.” In a later pretrial stipulation, the employer claimed that no compensable accident occurred, and took the position that McNair’s accident did not occur within the course and scope of his employment.

January 26, 2024

Jeffrey P. Gale, P.A. // The Long Evolution of Attorney’s Fees in Florida Workers’ Compensation

by Jeffrey P. Gale, P.A.

For as long as our law firm has been handling Florida workers’ compensation cases, the amount injured workers’ attorneys may receive as a fee has always been a hot topic. The two main factors driving the conversation are the injured workers’ share of a recovery, typically through a settlement, and limiting litigation. While the Florida Legislature pays lip service to the first factor, the second factor is the actual driving force.

Since 1998, when Republicans, with the election of Jeb Bush as governor, took full total control of the lawmaking process in Florida, the workers’ compensation laws have been tailored to make it difficult for lawyers representing injured workers (a/k/a “claimants”) to earn a sustainable income. The stated policy of the laws has been couched as promoting a greater share of recovered proceeds allocated to claimants instead of attorneys’ fees, but the silent truth is to make it difficult for claimants to hire lawyers willing and able to fight toe-to-toe against employers and their workers’ compensation insurance carriers. Bottom line: There is nothing Big Business hates more than pipsqueaks, i.e., injured workers, being able to challenge them on a level playing field. They want the field tilted in their favor.

The most famous example of this blatant abuse came to a head in Castellanos v. Next Door Company, 192 So.3d 431 (Fla. 2016). Marvin Castellanos was injured while working with Next Door Company. With the help of an attorney, Castellanos prevailed in his workers’ compensation claim, after the attorney successfully refuted numerous defenses raised by the employer and its insurance carrier. However, because the statute then in effect limited his ability to recover attorney’s fees to a sliding scale based on the amount of workers’ compensation benefits obtained, the fee awarded to Castellanos’ successful attorney amounted to only $1.53 per hour for 107.2 hours of work.

The Florida Supreme Court found the statute, which essentially became effective in 2003, unconstitutional. It understood that the statute was designed to make it difficult for injured workers to engage competent legal counsel. Citing Davis v. Keeto, Inc., 463 So. 2d 368 (Fla. 1st DCA 1985) (quoting Neylon v. Ford Motor Co., 99 A.2d 664, 665 (N.J. Super. Ct. App. Div. 1953)) the court noted that a claimant proceeding “without the aid of competent counsel” would be as “helpless as a turtle on its back.” At 371.

December 15, 2023

Jeffrey P. Gale, P.A. // Employer/Carrier Cannot Stick its Head in the Ground on Attendant Care Benefits

by Jeffrey P. Gale, P.A.

Some injured workers are hurt so badly that they require attendant care. This benefit can take many forms, from active assistance with such things as eating and bathing, to what is called surveillance, or oversight.

As written, Florida Statute 440.13(2)(b) seemingly places the full burden on the injured worker to provide the employer/carrier (E/C) with a detailed description of his or her attendant care needs before E/C is obligated to furnish anything:

The employer shall provide appropriate professional or nonprofessional attendant care performed only at the direction and control of a physician when such care is medically necessary. The physician shall prescribe such care in writing. The employer or carrier shall not be responsible for such care until the prescription for attendant care is received by the employer and carrier, which shall specify the time periods for such care, the level of care required, and the type of assistance required.

Employers/Carriers oftentimes rely on this language to act indifferently towards providing the benefit. Thankfully, the courts don’t take kindly to this type of conduct.

November 29, 2023

Jeffrey P. Gale, P.A. // Procedure for Florida Workers’ Compensation One-Time (1x) Change Request

by Jeffrey P. Gale, P.A.

For the most part, Florida workers involved in industrial accidents have little control over which medical providers are authorized to treat them under the state’s workers’ compensation system. Control of the medical care is mostly held by the employers and their workers’ compensation insurance carriers (E/C). Section 440.13, Florida Statutes lays out the parameters regarding the provision and control of medical care.

Control impacts the nature and quality of medical care received, the receipt of indemnity (money) benefits, and settlement value. Doctors selected by E/C tend to render opinions favoring E/C. Injured workers have limited ability to wrest control of their care from E/C.

440.13(2)(f) lets injured workers ask E/C to authorize another treating doctor. Barring exceptional circumstances, the request can only be made one time in each case. E/C has five days from receipt of the request to select another doctor of its choosing or lose the right. If the selection is not made within the five days, the injured worker, also known as the claimant, gets to select the doctor. This doctor then becomes authorized. This is a big deal.

November 12, 2023

Jeffrey P. Gale, P.A. // Difference Between Workers’ Compensation Lien and Medicare Lien in Death Cases

by Jeffrey P. Gale, P.A.

A lien is a claim held by a party against the settlement or judgment in a personal injury or death case for reimbursement of damages it has paid in the case. This blog will discuss two types of liens commonly arising in death cases, the Medicare lien and the workers’ compensation lien.

Medicare pays medical expenses while both medical and indemnity (money) benefits are paid by the employer and its insurance carrier in Florida workers’ compensation cases. Each type is often paid in association with cases where the victim ends up dying.

42 CFR sec. 411.24 sets forth Medicare’s lien rights. Section 440.39, Florida Statutes covers the employer/carrier’s lien rights in workers’ compensation cases.

Section 786.21 of Florida’s Wrongful Death Act defines the type of benefits available in civil law wrongful death cases. Section 440.16 does this in the context of workers’ compensation cases. In some instances, a recovery under both laws is available for the same accident.

September 8, 2023

Jeffrey P. Gale, P.A. // Workers’ Compensation Immunity for Florida Contractors and Subcontractors

by Jeffrey P. Gale, P.A.

It is sometimes possible for employees injured on the job in Florida to be compensated through both the state’s workers’ compensation system and its civil justice system. As to the compensation available and the manner in which the compensation is sought and received, the systems are more different than they are alike. One of the primary differences is that compensation for human damages such as bodily injury, pain and suffering, disfigurement, mental anguish, and the loss of capacity for the enjoyment of life, are elements of a civil remedy but not workers’ compensation. In a nutshell, workers’ compensation benefits are limited to medical and indemnity benefits. Non-economic damages, which can amount to millions of dollars, are not recoverable.

What limits most employees from being able to receive the civil remedy is the legal concept known as workers’ compensation immunity. The basic concept is set forth in Fla. Stat. Sec. 440.11(1):

The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death….

Special laws have been devised to deal with workers’ compensation immunity in the context of contractor-subcontractor relationships. See Fla. Stat. Sec. 440.10(b)-(f). For the employees of contractors and subcontractors, the general law is set forth in s. 440.10(b):

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

“[T]he purpose of section 440.10 . . . [is] ‘to insure [sic] that a particular industry will be financially responsible for injuries to those employees working in it, even though the prime contractor employs an independent contractor to perform part or all of its contractual undertaking.’” Gator Freightways, Inc. v. Roberts, 550 So. 2d 1117, 1119 (Fla. 1989) (quoting Roberts v. Gator Freightways, Inc., 538 So. 2d 55, 60 (Fla. 1st DCA 1989)); see also Crum Servs. v. Lopez, 975 So. 2d 1184, 1186 (Fla. 1st DCA 2008) (explaining that section 440.10(1)(b) “is designed to ensure that employees engaged in the same contract work are covered by workers’ compensation, regardless of whether they are employees of the general contractor or its subcontractor”).