Workers' Compensation

July 27, 2023

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation — Compensability of Accidents During Lunch Break

Our client, a construction site supervisor, was injured off-premises at the end of his lunch break. The beginning and end of lunch were signaled by a loud horn. He and his brother traveled by car to a nearby 7-11 to purchase lunch items. They returned to the area near the worksite to eat lunch in the parked car. When the return-to-work horn sounded, our client went to the trunk of his car to retrieve his hard hat and safety harness. As he was standing there, the car behind him was struck from behind by another vehicle and pushed into him, causing him to be crushed between that vehicle and his own. He sustained significant injuries requiring a one-week stay in Ryder Trauma Center in Miami.

Initially, the workers’ compensation insurance carrier balked at accepting compensability of the injury. Its position was that since the accident happened offsite during a lunch break, it did not arise out of and in the course and scope of our client’s employment. After studying the case law and gathering more facts, the carrier reversed course.

July 26, 2023

Jeffrey P. Gale, P.A. // Medical Expenses Incurred in Diagnosing the Nature and Cause of Non-Compensable Injuries Can be the Responsibility of Workers’ Compensation Insurance Carriers

by Jeffrey P. Gale, P.A.

We represent a woman who fell at work. The employer sent her to a clinic the same day for treatment. However, because of miscommunications between the employer and the clinic, she never got in to see a doctor despite waiting more than two hours. While in the waiting room, our client began experiencing stroke-like symptoms. She phoned her daughter to take her to the hospital. She was admitted to the hospital and underwent a series of tests mostly aimed at the stroke-like symptoms. She was discharged 24 hours after being admitted. The hospital bill was close to $100,000.

Our client injured her back and feet in the fall. She did not strike her head. The workers’ compensation insurance carrier has accepted responsibility for the orthopedic injuries. However, it is not considering paying the hospital bill. It may have to pay the bill.

It is well established in the case law that diagnostic testing is always compensable if the purpose is to find out the cause of the injured worker’s symptoms. See Arnau v. Winn Dixie Stores, 105 So.3d 669, 671 (Fla. 1st DCA 2013) citing Nealy v. City of W. Palm Beach, 491 So.2d 585, 586 (Fla. 1st DCA 1986) (“Whenever the purpose of the diagnostic test is to determine the cause of a claimant’s symptoms, which symptoms may be related to a compensable accident, the cost of the diagnostic test is compensable.”); see also Superior Concrete Constr. v. Olsen, 616 So.2d 183, 183 (Fla. 1st DCA 1993); Perry v. Ridgecrest Int’l, 548 So.2d 826, 827-28 (Fla. 1st DCA 1989). This is true even if the tests prove the symptoms are unrelated to the compensable injury. Nealy, 491 So.2d at 586.

The foundation for these principles is found in Florida statute 440.13. Under paragraph 440.13(2)(a), Florida Statutes (2023), employers are required to furnish “such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or process of recovery may require.” Medically necessary treatment includes “any medical service or medical supply which is used to identify or treat an illness or injury.” § 440.13(1)(k), Fla. Stat. (2023).

June 29, 2023

Jeffrey P. Gale, P.A. // Employer/Carrier’s Responsibility to Pay for Unrelated Medical Care

by Jeffrey P. Gale, P.A.

Following compensable work-related accidents, employers and their insurance carriers (commonly collectively referred to as “E/C”), are supposed to furnish injured workers with the medical care prescribed in Florida Statute section 440.13.(2)(a). The key language of the statute reads as follows:

Subject to the limitations specified elsewhere in this chapter, 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….

Interestingly, this provision has been interpreted to include medical treatment for unrelated conditions if such treatment will aid or improve recovery of the work injury. The principle has been recognized since 1966.

In Jordan v. Fla. Industrial Commission, 183 So. 2d 529 (Fla. 1966), the Florida Supreme Court reversed the rulings of two lower tribunals which denied treatment of a pre-existing deformity, and compensation for healing time during and following same. The injured worker in the case had sustained a leg injury in a prior accident which healed at an abnormal angle shortening his leg by two and one-fourth inches, giving him a limp, curvature of the spine and abnormal stress on the leg muscles, tendons, etc. Four years later he suffered a job-connected accident resulting in a back injury. Medical testimony demonstrated that were it not for the abnormal stress on his back caused by the earlier deformity, claimant’s back would have healed from the compensable injury in four to eight weeks, and that the only effective treatment for the compensable back injury was to correct the leg length discrepancy. The Judge of Compensation Claims declined to require that the employer provide treatment or appliances to correct the deformity. The Full Industrial Commission affirmed the JCC. (It should be noted that the Industrial Commission no longer exists to review workers’ compensation trial judge rulings. That responsibility now lies with the First District Court of Appeal.) The Supreme Court reversed both tribunals and ordered E/C to furnish the medical treatment.

June 15, 2023

Jeffrey P. Gale, P.A. // Protecting Privacy and Privilege Rights in Non-Party Requests for Documents

by Jeffrey P. Gale, P.A.

In just about every personal injury and workers’ compensation case, the defense will seek the production of records from non-parties to the suit. The typical non-party targets are medical providers and insurance companies. In most instances, the records sought were not generated in connection with the subject case. The defense is looking for records of preexisting medical conditions and prior legal claims.

Florida’s discovery rules are liberal. FRCP 1.280(b) provides as follows:

(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery isas follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Albeit broad, the rules are not boundless. In Russell v. Stardust Cruisers, Inc., 690 So.2d 743 (Fla. 5^th DCA 1997), a wrongful death case, petitioner objected to defendant’s request for decedent’s psychiatric and psychological records, stating that the medical records were confidential and that the request was overbroad. The DCA decided that the records might be relevant to the issue of damages but disagreed with the court’s order allowing “carte blanche investigation of decedent’s entire mental health history.” Russell at 745. The court explained that “Even though the rules of civil procedure allow for broad discovery, the discovery must be confined to matters admissible or reasonably calculated to lead to admissible evidence in the case.” Russell at 745, citing East Colonial Refuse Service, Inc. v. Velocci, 416 So.2d 1276, 1277 (Fla. 5th DCA 1982). The trial court order allowing carte blanche discovery was quashed and the matter was remanded for an in camera review of the records.

May 16, 2023

Jeffrey P. Gale, P.A. // Limited Medical Choices for Claimants in Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

Florida Statute 440.13 governs the provision of medical care under Florida’s workers’ compensation system. For the most part, the Employer and its insurance carrier — “E/C” — control the provision of medical care.

The most dominant aspect of this control is the right to select the injured worker’s treating doctors. Unfortunately, most of these doctors suffer from the incurable “Don’t Bite the Hand that Feeds You” disease. All too frequently, the opinions expressed by these doctors benefit the E/C to the detriment of the Claimant.

On rare occasions, E/C loses control of the medical. The most frequent situation is where the worker has suffered substantial injuries requiring emergency surgery in the hospital. The natural sequence is that the surgeon, especially if he or she maintains a private practice, will remain the primary physician after the patient is discharged from the hospital. While this doctor is not hand-picked by E/C, he or she is also not hand-picked by the Claimant.

440.13(2)(c) gives E/C a “reasonable time period” to provide initial medical treatment and care. If E/C fails to provide the initial treatment and care, Claimant “may obtain such initial treatment at the expense of the employer.” Even still, E/C can regain control of the medical under this provision. In Carmack v. Department of Agriculture, 31 So.3d 798 (Fla. 1st DCA 2009), Claimant suffered a compensable accident, but E/C refused to authorize medical care for psychiatric issues arising from leg and back injuries. Claimant sought care with a psychiatrist and filed a Petition for Benefits seeking authorization of past and future care with the psychiatrist. The Judge of Compensation Claims (JCC) ordered E/C to pay for treatment through the date of the final hearing (workers’ compensation trial), but not for continuing treatment with the particular doctor. Instead, E/C was able to choose another psychiatrist. The JCC’s ruling was upheld on appeal.

April 26, 2023

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation — Devil in the Details

by Jeffrey P. Gale, P.A.

Every type of legal matter is governed by consequential procedural and substantive rules and regulations. Some are universal to every type of case, while some are unique to the particular type of legal matter.

Florida’s workers’ compensation system, in particular, has many consequential unique rules and regulations. This blog will address one of them, the law concerning the authorization of medical services following the recommendation of an authorized medical provider.

Chapter 440 of Florida’s statutes is the statutory body of law that governs Florida workers’ compensation cases. 440.13 is the section of Chapter 440 that addresses medical care issues. Sections 440.13(2) and (3) concern the duties and obligations of employers and their insurance carriers regarding the provision of medical care. (Most cases are handled by insurance carriers.)

For the most part, injured workers are not allowed to select their own doctors. That right rests with the carriers. In many instances, an authorized medical provider will request authorization for referral for medical treatment. Some of the most common requests are for physical therapy, MRIs, referrals to specialists, and injections.

February 6, 2023

Jeffrey P. Gale, P.A. // The Miles Fee Promotes Judicial Economy in Florida Workers’ Compensation Cases

by Jeffrey P. Gale, P.A.

With limited resources at their disposal, court systems nationwide endeavor to operate with judicial economy. This is one reason why the settlement of cases is encouraged.

Presently, Florida has twenty-nine judges of workers’ compensation claims (JCC) statewide to handle a workforce of some 10 million people. Each JCC’s docket is bursting at the seams. It could be worse.

Prior to the decision in Miles v. City of Edgewater Police Dept/Preferred Governmental Claims Solutions, 190 So. 3d 171 (Fla. 1^st DCA 2016), it was a crime in Florida for an attorney to accept a fee from a claimant in a workers’ compensation case that was not approved by a Judge of Compensation Claims (JCC) in accordance with the fee formula contained in section 440.34(1), Florida Statutes. Section 440.105(3)(c), Florida Statutes. The crime was punishable by up to one year in prison (s. 775.082) and a fine (s. 775.082). Any lawyer violating 440.105(3)(c) could also expect to be suspended or disbarred.

In Miles, the JCC rejected an attorney/client contract in which the client, an injured worker, and her union agreed to pay a workers’ compensation lawyer a fee in excess of the amount allowed under 440.34. Because it would have been a financial hardship for the lawyer to handle the case under the formula set forth in 440.34, she withdrew from the case. Unable to find a lawyer to take her case, the injured worker proceeded Pro Se. Her claims were denied by the JCC.

Claimant argued on appeal that Florida Statutes 440.105 and 440.34 violated the First Amendment of the Constitution of the United States and the fundamental right to contract. The First District Court of Appeal agreed.

January 19, 2023

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Benefits for Undocumented Aliens

by Jeffrey P. Gale, P.A.

Injured employees are entitled to workers’ compensation benefits. Undocumented aliens are considered employees under Florida’s workers’ compensation system. Section 440.02(15)(a), Florida Statutes provides as follows:

“Employee” means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes, but is not limited to, aliens and minors. (Bold added for emphasis.)

Employees missing time from work are eligible for lost wage benefits (i.e., indemnity) for partial and total disability. 440.15(1) (PTD), 440.15(2) (TTD), 440.15(4) (TPD). Entitlement to temporary partial disability benefits (TPD) depends on whether Claimant can demonstrate a causal link between his injury and his alleged wage loss. Cenvill Development Corp. v. Candelo, 478 So.2d 1168 (Fla. 1st DCA 1985).

The employment of illegal aliens is prohibited by federal and state law. These laws would seemingly prevent undocumented aliens from being able to demonstrate a causal link between their injuries and their wage loss. However, Florida’s workers’ compensation system has an exception:

the employer is precluded from asserting the status of an illegal alien as a defensive matter so as to avoid liability for disability benefits otherwise due when the employer “knew or should have known of the true status of the employee.” Cenvill Development Corp. v. Candelo, 478 So.2d 1168 (Fla. 1st DCA 1985).

January 14, 2023

Jeffrey P. Gale, P.A. // Recovering for Mental and Nervous Injuries in Florida

by Jeffrey P. Gale, P.A.

Florida’s liability law and workers’ compensation systems are cautious about awarding benefits for mental and nervous injuries. The underlying basis for the caution is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims. R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla.1995).

What has come to be known as the “Impact Rule” requires that “before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.'” See Southern Baptist Hosp. of Fla. v. Welker, 908 So.2d 317 (Fla.2005).

The rule is applied in common law personal injury cases and in workers’ compensation cases.

Limited exceptions to the Impact Rule apply in both fields. The common law exceptions have been created by the Florida Supreme Court. See, e.g., Eastern Airlines, Inc. v. King, 557 So.2d 574 (Fla.1990) (recognizing the tort of intentional infliction of emotional distress absent impact); Champion v. Gray, 478 So.2d 17 (Fla.1985) (allowing recovery where plaintiff is in the “sensory perception” of physical injuries sustained by a close family member); Kush v. Lloyd, 616 So.2d 415 (Fla.1992) (finding rule inapplicable to actions for wrongful birth); Tanner v. Hartog, 696 So.2d 705 (Fla.1997) (impact rule does not preclude recovery of non-economic damages for parents of stillborn child); Gracey v. Eaker (impact rule inapplicable for breach of statutory duty of confidentiality to patient); Rowell v. Holt, 850 So.2d 474 (Fla.2003) (impact rule does not preclude recovery for psychological injury due to attorney’s negligence).

In short, “[e]xceptions to the rule have been narrowly created and defined in a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.” Id. at 478.

Compare these close-call cases: R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla. 1995) (impact rule applies to negligent HIV diagnosis without physical damage), Woodard v. Jupiter Christian School, Inc., 913 So.2d 1188 (Fla. 2005) (impact rule applies to outing student’s homosexuality).

December 29, 2022

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

by Jeffrey P. Gale, P.A.

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.