Workers' Compensation

December 29, 2022

Jeffrey P. Gale, P.A. // Loss of Co-Worker WC Immunity Not Imputed to Employer

Florida employees hurt at work have the potential of being compensated under the State’s workers’ compensation and civil laws. To recover under civil law against employers and fellow employees (including corporate officers or directors, supervisors, and managers), employees must overcome workers’ compensation immunity. Section 440.11(1)(b), Florida Statutes sets out what employees must prove to overcome the immunity*:

Against Employers:

The employer deliberately intended to injure the employee; or

The employer engaged in conduct that was virtually certain to result in injury or death, and the employee was not aware of the risk.

Against Fellow Employees:

The employee acted with willful and wanton disregard or unprovoked physical aggression or with gross negligence; or

The injured employee and the at-fault employee were assigned primarily to unrelated works.

*These are the standards when the employer has secured workers’ compensation coverage as required by Chapter 440. If the employer fails to secure the compensation required by the chapter, the employee may elect to claim compensation under the workers’ compensation laws or maintain an action at law (a/k/a civil law) or admiralty without having to meet the heightened standards outlined above. See Section 440.11(1)(a), Florida Statutes.

An important consideration in every injury case is whether the target defendant has the financial resources to pay for the losses. Workers’ compensation insurance policies will pay for all workers’ compensation benefits. However, because of exclusions, these policies are unlikely to cover the damages associated with an action at law. Most companies also maintain liability insurance policies. However, these policies also often contain exclusions for injuries to employees even when the harm was caused by the employer or a fellow employee.

November 20, 2022

Jeffrey P. Gale, P.A. // Florida’s EMA Law Neuters the Independence of Workers’ Compensation Judges

by Jeffrey P. Gale, P.A.

The resolution of disputes in Florida workers’ compensation cases often boils down to medical opinions. On this matter, the deck is stacked against injured workers (a/k/a “claimants”).

Section 440.13(2)(a), Florida Statutes lays out the obligations of employers and their insurance carriers, commonly referred to as “E/C,” to furnish medical care to injured workers. Unless an E/C fails to furnish care timely, it controls who is authorized to provide care at every stage of the case. 440.13(2)(a),(c)&(f). In other words, E/C get to pick claimants’ medical providers.

We typically see the same handful of medical providers selected by E/C in every case. The obvious reason why is because the providers make a steady and reliable income from workers’ compensation cases and know better than to bite the hand that feeds them. Especially when a call can go either way, they are skilled at expressing opinions favorable to E/C. They’re also adept at managing care so they make money, for example, with ongoing visits and physical therapy, while depriving claimants of the opportunity to recover lost wage payments. In this regard, “No functional limitations” is a favorite conclusion. See Section 21 of DWC-25. (This form is supposed to be completed by authorized doctors after every appointment.)

Making matters worse is that judges of workers’ compensation claims (“JCC) are not allowed to consider the opinions of any medical providers other than those authorized by E/C, typically the hand-selected usual suspects, each party’s IME, and an EMA doctor. Section 440.13(5)(e) provides as follows:

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.

An IME doctor is not a treater. He or she gets to examine the claimant one time and review medical records. See 440.13(1)(h)&(i) and (5). The EMA doctor is appointed by the Judge of Compensation Claims (JCC) to resolve differences of opinion among authorized and IME doctors. Section 440.13(9), Florida Statutes.

November 8, 2022

Jeffrey P. Gale, P.A. // Peer Review in Florida Workers’ Compensation

by Jeffrey P. Gale, P.A.

The Oxford Dictionary defines peer review as “a judgment on a piece of scientific or other professional work by others working in the same area.” It is a commonly used procedure with a variety of scientific and medical matters.

Florida’s workers’ compensation statutes are located in Chapter 440. Peer review is referenced at section 440.13(1)(o) as follows:

“Peer review” means an evaluation by two or more physicians licensed under the same authority and with the same or similar specialty as the physician under review, of the appropriateness, quality, and cost of health care and health services provided to a patient, based on medically accepted standards.

There is little other jurisprudential instruction to explain the pertinence of peer review in workers’ compensation cases.

Last week I received a “Peer Review” report from a doctor hired by the workers’ compensation insurance company in one of our cases. In the doctor’s opinion, a shoulder surgery recommended by our client’s authorized doctor “does not meet established treatment standards of medical necessity.” The peer review report was generated in response to a Petition for Benefits we had filed seeking authorization of the surgery. A few days later the workers’ compensation carrier filed a formal response to the Petition for Benefits in which it agreed to authorize the surgery. This is not the first time I’ve experienced a similar about-face involving peer review.

I don’t know why the carrier went to the trouble and expense of this so-called peer review. First, the statute requires the review to be done by “two or more physicians.” This review was done by one physician. Next, while 440.13(r) and (s) express an interest in “Utilization control” and “Utilization review,” neither the statute nor case law instruct how or even whether peer review functions to address utilization concerns or disputed medical benefits.

September 20, 2022

Jeffrey P. Gale, P.A. // Consider Gross Negligence to Avoid Florida Workers’ Compensation Immunity

by Jeffrey P. Gale, P.A.

During every initial workers’ compensation client interview, I spend time explaining that Florida’s workers’ compensation system does not pay benefits for non-economic damages such as pain and suffering. Most people don’t know this. I reiterate the point during various stages of the case, especially as we approach settlement discussions. Nothing prevents fair and reasonable settlements more than expectations based on misapprehensions of the law.

The statutory authority for this limit on non-economic damages in workers’ compensation cases is found in Florida Statute 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….

The “at law” provision encompasses non-economic damages, and the limitation is commonly referred to as “workers’ compensation immunity.” Injured workers bound by this provision are limited to receiving medical and indemnity benefits through the workers’ compensation system contained in Chapter 440 of Florida’s statutes.

“[A]t law” non-economic damages are available in personal injury cases. A key element of every personal injury case is that the harm resulted from, at a minimum, another person’s or entity’s negligence. 440.11 bars personal injury claims against co-workers and employers for mere negligence. This is “workers’ compensation immunity.”

September 1, 2022

Jeffrey P. Gale, P.A. // Considerations Concerning Cash Advance Funding of Florida Personal Injury and Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

The competition to advance money to those injured in accidents is fierce. The reason for the fierce competition is the potentially high rate of return on the investment.

Numerous companies, some large with a national presence, engage in the competition. Because their only security is the injury case itself (workers’ compensation and personal injury), which gives rise to the term “non-recourse funding advance“, the companies are not bound by Florida’s usury laws limiting interest rate charges. The rate can be multiple times over the 18% limit allowed in Florida. In fact, the interest rates are so high that the repayment amount can quickly double and triple the principal.

Advance companies are barred from foreclosing on real property or seeking repayment through wage garnishment. Their sole recourse for repayment is the case itself. If the case fails altogether or the recovery is not enough to repay the advance in full, it’s tough luck for the company. Given the precarious nature of accident cases, this is a real risk. Cases can “Go South,” so to speak, for a variety of reasons.

August 23, 2022

Jeffrey P. Gale, P.A. // Can a Treater be an IME Under Florida’s Workers’ Compensation Laws?

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system, located in Chapter 440 of the Florida Statutes, follows its own unique set of rules and procedures. One of the more unusual and challenging is the limitation set forth in section 440.13(5)(e) regarding who may provide expert medical opinions:

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.

Following an industrial accident, “the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require….” Section 440.13(2)(a), Fla. Stat. (2022).

For a variety of reasons, employers sometimes fail or refuse to meet this responsibility. When they do, 440.13(2)(c) allows employees to “obtain such initial treatment at the expense of the employer, if the initial treatment or care is compensable and medically necessary and is in accordance with established practice parameters and protocols of treatment as provided for in this chapter.” This medical care is commonly referred to as “self-help.”

Medical testimony is required to resolve most workers’ compensation disputes. Who may testify is controlled by section 440.13(5)(e), Florida Statues. In Hidden v Day & Zimmerman, 202 So.3d 441 (Fla. 1st DCA 2016), the Court said that “the employee could designate the self-help doctor as his or her IME, thereby making the doctor’s opinion admissible under section 440.13(5)(e)….” Id. at 443.

August 11, 2022

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Medical Authorization Legal Nuggets

by Jeffrey P. Gale, P.A.

Florida employers and their workers’ compensation insurance carriers, often referred to in combination as the “E/C,” are obligated under Florida Statute 440.13(2)(a) to “furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require….” Many a battle is fought over medical necessity.

It is common in workers’ compensation cases for authorized medical providers to make referrals for various types of medical care. Under 440.13, once E/C has received the referral request, it has a prescribed period of time to respond or the requested care will be deemed medically necessary. The request must be made in writing to the carrier, while the carrier’s response may be by telephone or in writing. Sec. 440.13(3)(d).

How long E/C has to respond depends on the nature and expense of the requested service. 440.13(3)(d) limits the response time to three (3) days, while 440.13(3)(i) allows ten (10) days. 440.13(3)(i) provides in pertinent part as follows:

Notwithstanding paragraph (d), a claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, X-ray examinations, or special diagnostic laboratory tests that cost more than $1,000 and other specialty services that the department identifies by rule is not valid and reimbursable unless the services have been expressly authorized by the carrier….

In practice, this exception applies to most referrals. For example, in the typical workers’ compensation case, the carrier will authorize a clinic to provide the initial evaluation and treat to the extent of its expertise. Almost invariably, the clinic will prescribe onsite physical therapy. This prescription falls under (3)(i). When the employee’s complaints persist, the clinic doctor will prescribe an MRI. This, too, falls under (3)(i). And if the MRI shows a medical condition outside the expertise of the clinic doctor, a referral will be made to a specialist, another (3)(i) situation.

August 3, 2022

Jeffrey P. Gale, P.A. // “Objective Relevant Medical Findings” Only Required in Florida Workers’ Compensation Cases to Prove Compensability

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system has its own unique set of laws. One of these concerns the burden claimants bear in establishing the compensability of injuries. Per section 440.09(1), Florida Statutes, the injury “must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries.”

The statute defines objective relevant medical findings as “those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing.” The instructions accompanying form DWC-25, which is typically completed by workers’ compensation doctors after each appointment, say this about objective relevant medical findings:

Objective Relevant Medical Findings: Pursuant to Section 440.09(1), F.S., pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable. Further, pursuant to Section 440.13(16)(a), F.S., abnormal anatomical findings alone, in the absence of objective relevant medical findings, shall not be an indicator of an injury or illness, a justification for the provision of remedial medical care, the assignment of restrictions, or a foundation for limitations. Objective relevant medical findings are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by the physical examination findings or diagnostic testing.

Compensability is but one of many issues in Florida workers’ compensation cases. Even after compensability is resolved, disputes may arise over other issues such as the transfer of medical care and the payment of indemnity (money) benefits. Interestingly, even though medical evidence is needed to resolve almost every workers’ compensation dispute, compensability is the only one in which “objective relevant medical findings” is a mandatory element.

This point has been and remains an area of confusion for lawyers, adjusters, and workers’ compensation judges.

July 27, 2022

Jeffrey P. Gale, P.A. // Unrelated Works Exception to Workers’ Compensation Immunity Does Not Apply to Employees of a Different Subcontractor

by Jeffrey P. Gale, P.A.

It is the job of every injury lawyer to maximize the client’s recovery. Sometimes when a person is hurt at work, more than one remedy is available. Workers’ compensation is one remedy. Civil law is another.

Florida’s workers’ compensation laws do not allow for the recovery of noneconomic damages such as pain and suffering. Workers’ compensation covers only authorized medical expenses and a defined period of lost wages. Noneconomic damages are not allowed. Civil remedy damages include economic damages such as medical expenses and lost wages as well as noneconomic damages.

Florida Statute 440.11 provides immunity to employers and their employees from civil remedy actions. There are exceptions to this rule. The exceptions are outlined in 440.11. The employer loses its immunity if it fails to maintain the workers’ compensation security required by Chapter 440 or commits an intentional tort. Section 440.11(1)(b) describes the fellow-employee exceptions:

Fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death or such acts proximately cause such injury or death, nor shall such immunities be applicable to employees of the same employer when each is operating in the furtherance of the employer’s business but they are assigned primarily to unrelated works within private or public employment. (Italics added.)

In Moradiellos v Gerelco Traffic Controls, Inc., 176 So.3d 329 (Fla. 3rd DCA 2015), Mr. Moradiellos was killed in a construction site incident caused by the negligence of a subcontractor’s employee. Employees of construction subcontractors typically also get the 440.11 workers’ compensation immunity. The decedent was employed by the general contractor.

May 12, 2022

Jeffrey P. Gale, P.A. // Limiting Social Security Disability Offset After Florida Workers’ Compensation Settlement

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system provides for three types of weekly indemnity benefits:

440.15(1) Permanent Total Disability

440.15(2) Temporary Total Disability

400.15(4) Temporary Partial Disability

An injured worker may simultaneously be eligible for monthly Social Security Disability benefits under 42 U.S.C. s. 423. If the combined benefits exceed 80% of the claimant’s workers’ compensation average weekly wage (AWW), section 440.15(9), Florida Statutes, allows the workers’ compensation carrier to reduce its payment until the combined amount gets down to 80%. (The state precedence is authorized by 42 U.S.C. § 424a(d).)

Not every state allows the insurance carrier to take an offset. In the absence of the carrier taking an offset, the federal government may take an offset. (The federal offset formula, contained at 42 U.S. Code Sec. 424a – Reduction of disability benefits, is somewhat different than Florida’s workers’ compensation formula.)

While the claimant is receiving periodic workers’ compensation indemnity payments and the carrier is taking the offset, it is unlikely the Social Security Administration (SSA), which administers SSD, is entitled to an offset. However, most Florida workers’ compensation cases resolve with a lump sum washout settlement resulting in the termination of periodic payments. Surprisingly, at this point, the SSA is eligible to begin taking offsets. (The SSA offset applies even when the WC claimant does not qualify for SSD until after a settlement. Additionally, where the SSA had the right but failed to take the offset, resulting in “overpayments,” the SSA may recover the overpayments.)