wheelchair-300x214Permanent Total Disability (PTD) — defined in section 440.15(1), Florida Statutes — is an indemnity (monetary) benefit sometimes available under Florida’s Workers’ Compensation System to the state’s most severely injured workers. Unless the worker has suffered an injury of the type as set forth in 440.15(1)(b), commonly referred to as a “catastrophic injury,” he or she must wait to reach the date of maximum medical improvement (MMI) before becoming eligible for PTD. In some cases, this can take a year or longer. Moreover, where multiple injuries are involved, the worker must first reach MMI from each injury.

For employees who have suffered “catastrophic injuries,” MMI does not have to be reached to qualify for PTD benefits. According to 440.15(1)(b), “an injured employee is presumed to be permanently and totally disabled” upon sustaining a catastrophic injury. The presumption is rebuttable. To overcome the presumption, the employer or carrier must establish “that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence.” 440.15(1)(b).

In Temporary Labor Source v. E.H., 765 So.2d 757 (Fla. 1st DCA 2000), although the claimant had sustained a catastrophic injury, the Judge of Compensation Claims (JCC) refused to adjudicate the issue of PTD when the matter was addressed at trial. Relying upon medical expert testimony “that the use of a prosthetic device may increase Claimant’s ability and capacity for work,” the JCC reasoned that because the claimant had not reached MMI, PTD was not ripe for adjudication. The judgment was reversed on appeal.

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caduceus-1219484-m-212x300Hospitals expect to be paid for services rendered. Payment sources range from personal funds, government assistance, to insurance. When the accident is job related, workers’ compensation will pay the hospital in compensable cases. When the accident is not job related, third parties responsible for causing the accident may have to pay compensation for hospital expenses.

Hospital liens are created by legislation. The purpose of these provisions is to “assure a hospital of its rights to proceeds which are held by an insurance company whose insured is liable for the injuries suffered by the hospital’s patient.” Palm Springs Gen. Hosp., Inc. v. State Farm Mut. Auto. Ins. Co., 218 So. 2d 793, 797-98 (Fla. 3d DCA 1969). The carrier is never obligated to pay more than its policy limits, see, Shands Teaching Hosp. v. Mercury Ins. Co., 97 So.3d 204 (Fla., 2012), and whether or not any insurance proceeds are paid, the patient remains responsible for all outstanding charges and can be sued by the hospital for breach of contract with regard to same. In some instances, the patient’s personal injury lawyer can negotiate a reduction in the bill.

Florida hospital liens have been created by Special Acts of the Florida Legislature and by ordinances. Liens created by the Florida Legislature are unconstitutional and unenforceable.

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In Citizens Property Insurance Corporation v. Salkey (Opinion filed November `6, 2018), property owners insured with Citizens claimed losses alleged to have been caused by sinkhole activity. They had purchased coverage endorsement, which provided coverage for direct physical loss caused by sinkhole activity. An expert hired by Citizens concluded that the property damage was not caused by sinkhole activity but was caused by the ongoing decay of organic soils and phosphatic clay in the reclaimed mine zone over which the insured’s house was built. Because damage caused this way was excluded under the policy, Citizens denied the sinkhole claim, and the homeowners filed a breach of contract claim against Citizens.

Based on evidence presented at trial, the jury concluded that the damage was caused by both factors. Judgment was entered for the property owners. Citizens appealed.

While the judgment was reversed and remanded on other grounds, the Second DCA concluded that Citizens was otherwise liable on the concurrent-cause doctrine, not the efficient-proximate-cause doctrine, which applies when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy. (Citizens argued that policy language effectively eliminated coverage under the concurrent-cause doctrine, but the appeal court disagreed.) The DCA was informed by the Florida Supreme Court’s opinion in Sebo v. American Home Assurance Co. (Sebo II), 208 So. 3d 694 (Fla. 2016).


CAVEAT: This blog has been superseded by this blog: Jeffrey P. Gale, P.A. // Constitutionality of Florida Hospital Lien Depends on Mechanism of Creation

Hospital liens have been the bane of every Florida personal injury lawyer’s existence. Perhaps no longer.

An enforceable lien is the right to receive a monetary payment from a person or entity, known as a third party, to satisfy a particular debt. In the matter of personal injury cases, the  source is the party responsible for causing the damages, the at-fault party, and in most instances the money comes from that party’s liability insurance policy.

Hospital liens, both for public and private institutions, are created by special laws or ordinances. With rare exception, they provide that the facility gets paid in full before anyone else can make a claim to the money, including the injured party and his/her attorneys.

Hospital bills are typically large, oftentimes resulting in a significant portion of the third party proceeds being siphoned off to satisfy the lien. In some instances, the gap between what is owed and what is available is so wide there is little point in bothering to settle the case. In that situation, the defendant gets away with paying nothing.

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scales-of-justice-300x203Florida law regarding setoffs is found in sections 46.015(2), 768.041(2), and 768.31(5), Florida Statutes. Each of these statutes presupposes the existence of multiple defendants jointly and severally liable for the same damages. See Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d 249, 253 (Fla. 1995).

Back when defendants were jointly and severally liable for all damages in negligence cases, the setoff statutes authorized courts to reduce damage awards by the amount of settlement proceeds paid by other entities and individuals in the case. (The doctrine of joint and several liability was part of Florida’s common law for many years. See Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914)(All negligent defendants were held responsible for the total of the plaintiff’s damages regardless of the extent of each defendant’s fault in causing the accident).) While the courts began to have its doubts about joint and several liability as early as the 1970s, because the doctrine had been perceived as unfairly requiring a defendant to pay more than his or her percentage of fault — in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), the Florida Supreme Court took the first step toward equating liability with fault by eliminating the doctrine of contributory fault. Thereafter, in Lincenberg v. Issen, 318 So.2d 386, 391 (Fla. 1975), the court abolished the rule against contribution among joint tortfeasors, stating that “it would be undesirable for this Court to retain a rule that under a system based on fault, casts the entire burden of a loss for which several may be responsible upon only one of those at fault…” — it took legislative action to spell its demise. In 1986, with the enactment of section 786.81, the Florida Legislature abolished joint and several liability for noneconomic damages. In 2006, it did the same with regard to economic damages. Hence, with the elimination of joint and several liability, it would appear that the setoff statutes are inapplicable in negligence cases — See Wells and Port Charlotte HMA, LLC v. Suarez, 210 So. 3d 187 (Fla. 2nd DCA 2016) — replaced by the legal doctrine known as comparative fault, defined in the current version of section 786.81(3) as follows:

In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.

wheelchair2-300x199Under Florida law, if a workplace injury was occasioned primarily by the influence of alcohol or drugs, workers’ compensation benefits can be denied. Section 440.09(3), Florida Statutes (2018) (Interestingly, while this section provides that “Compensation is not payable,” with section 440.02(7) defining “Compensation” as “the money allowance payable to an employee or to his or her dependents,” the law is used to deny all workers’ compensation benefits, including medical benefits. The issue was addressed in Gustafson’s Dairy, Inc. v. Phillips, where “Compensation” was interpreted to include both medical and indemnity benefits.) It is a popular defense.

Typically, some level of medical care is provided before the workers’ compensation insurance carrier becomes aware of the drug and alcohol test results. For example, our firm is handling a roofing accident resulting in paraplegia for which nearly $200,000 in authorized medical care was provided before a positive test result became known.

We believe that the carrier may be responsible for the medical expenses. Our position is based on section 440.102(5)(p), Florida Statutes, which provides in pertinent part as follows:

All authorized remedial treatment, care, and attendance provided by a health care provider to an injured employee before medical and indemnity benefits are denied under this section must be paid for by the carrier or self-insurer.”

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worker2-300x223Per section 440.15(4), Florida Statues, Temporary Partial Disability (TPD) benefits are due “if the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work … or an employee returns to work with the restrictions resulting from the accident and is earning wages less than 80 percent of the preinjury average weekly wage.” Does this provision allow an injured worker who has left a job to relocate to a different city or state, to receive TPD? The answer depends on the motivation of the worker for leaving the job.

In Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173 (Fla. 1st DCA 2003), the Claimant left a modified duty job following an industrial accident and relocated to Pensacola because he and his wife were having marital problems and he thought he needed “to be with his family, be back home with [his] mom.” (His wife confirmed this testimony.) While in Pensacola he tried without success, due to his industrial injuries, to maintain a job. Two months later he returned to the job he had left. He also filed a claim for workers’ compensation TPD benefits for the period of time he was in Pensacola.

The workers’ compensation carrier denied the claim for TPD, contending that Claimant voluntarily limited his income. The Judge of Compensation Claims (JCC) agreed, finding that Claimant’s loss of earnings after his employment with the city of Pensacola and before returning to work was “not the result of an injury related disability, but rather the result of his voluntary hiatus from the job he ultimately returned to.” Claimant appealed the JCC’s decision.

accident-1307665-162x300It is not uncommon for injured workers to be terminated from their jobs post-accident. There was a time when Florida law required employers to make every effort within reason to reemploy their injured workers. While that admirable public policy was scrapped some 15 years ago, section 440.205, Florida Statutes does prohibit employers from terminating employees hurt on the job for claiming workers’ compensation benefits. However, as a firm that handles wrongful termination cases, we know that proving one from the other can be difficult. Compounding the difficulty is the element of good-cause firings, i.e., justified firings based on conduct, such as excessive absences.

Per section 440.15(4) Florida Statutes (2018), temporary partial disability (TPD) wage loss benefits are due “if the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work … or an employee returns to work with the restrictions resulting from the accident and is earning wages less than 80 percent of the preinjury average weekly wage.” This language has allowed some employees terminated for cause to be entitled to TPD benefits. (Caveat: Not all good-cause terminations are treated alike. Read this blog: Jeffrey P. Gale, P.A. // Florida Workers’ Compensation 440.15(4)(e) Termination for Misconduct Law Not Well Understood.)

One of the leading cases on the subject is Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173 (Fla. 1st DCA 2003). The Claimant injured his back on the job in a compensable accident — meaning, an accident accepted by the Employer/Carrier. He returned to work for the Employer, in a modified-duty status to conform to the authorized doctor’s recommendations, for approximately three weeks after the accident until the Employer terminated him  for excessive absenteeism (most of which occurred before the accident). For nine of the next eleven months he looked for work but remained unemployed. He also continued under the care of workers’ compensation doctors, who imposed work restrictions.

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clock-300x200Our firm recently settled a hard fought workers’ compensation case arising from a 1995 industrial accident. We received the initial call from the Claimant in March of this year (2018). He explained that he had not received medical care for his injuries, tibia and fibula fractures, since three months post surgery in 1995, but had for the past ten years been experiencing progressively worsening pain for which he now wished to be examined by a doctor. He claimed to be unaware of the Florida workers’ compensation system’s two year statute of limitations (SOL).

We accepted the case and proceeded to undertake discovery on four critical issues, the answers to which would decide whether or not the carrier would be estopped from relying on the statute of limitations defense.

  1. Did the workers’ compensation carrier send the claimant the section 440.185(4), Florida Statutes informational brochure which sets forth an explanation of his rights, benefits, and procedures for obtaining benefits and assistance under the Florida Workers’ Compensation Law?
  2. If not, did the claimant otherwise gain knowledge of these rights, say, for example, from a lawyer or even a friend?
  3. Did the carrier obtain a date of MMI or a permanent impairment rating from the medical provider it authorized and pay the impairment benefits?
  4. If not, was the claimant otherwise aware of his entitlement to impairment benefits?

In 1995, as today, carriers were instructed by section 440.185(4) to inform claimants of their rights under the workers’ compensation law. While a failure to do this could toll the SOL — i.e., keep it from running — it is not an absolute. The workers’ compensation judge (JCC) is charged with determining “whether the claimant lacked actual knowledge of his rights under the workers’ compensation law, and, if so, whether the absence of such knowledge was the cause of the claimant’s failure to obtain the requested care within the limitation period.” Fontanills v. Hillsborough County School Board, 913 So.2d 28, 30 (Fla. 1st DCA 2005).

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IMG_0298-300x225We have pending on appeal before the Third District Court of Appeal the question whether a homeowner’s association is liable under the non-delegable duty doctrine for the negligence of a third party. The association undertook the reconstruction of a boat dock by hiring a construction company. The construction company created a dangerous condition. Neither the association, which controlled the property, nor the construction company took adequate measures to protect residents and guests from injury. While attending a party as an invited guest at one of the townhouses, our client sustained serious injuries because of the dangerous condition. The jury found the townhouse owner partially at fault for failing to warn our client of the dangerous condition, which was approximately 100 feet from the back porch of the townhouse. The trial court refused to apply the non-delegable duty doctrine to impose liability on the homeowner’s association liable for the percentage of fault the jury attributed to the townhouse owner.

While there are no Florida cases directly on point, we did find some out of state and federal cases that, while not exactly on point either, appear to be instructive on the issue. The following cases stand for the proposition that someone with a non-delegable duty cannot escape liability by relying on others to fulfill the duty, and not just independent contractors. Two of those cases, Whitehead v Food Max and Tolman v Johnson are premises liability cases, but are not directly on point. The others are product liability cases where it is the duty to warn that is non-delegable.

Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265 (5th Cir, 1998). This case is a negligent security case where a mother and her daughter were abducted from a Kmart parking lot, robbed and sexually assaulted. The Circuit Court recognized that Mississippi imposed a duty upon business owners to maintain the premises in a reasonably secure or safe condition, including the protection of patrons from wrongful acts of third parties. In challenging the verdict/judgment in favor of the plaintiffs, Kmart argued the sufficiency of the evidence on foreseeability and challenged the propriety of jury instructions. In particular, Kmart complained about a jury instruction that said Kmart could not rely upon law enforcement agencies to discharge its nondelegable duty to keep its store and parking lot in a reasonably safe and secure condition. The Circuit Court pointed out that another instruction given to the jury stated that business owners are not obligated to hire a security guard or take other precautions against crime unless ordinary police protection is inadequate and the crime was reasonably foreseeable. The court did not go into detail about the nature of a nondelegable duty or how far it extends. It does not appear that either party argued that the police were negligent and the court did not address the potential liability for any negligence on the part of the police.

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