Florida Injury Attorney Blawg

September 5, 2016

Jeffrey P. Gale, P.A. // Employee’s Duty Under Florida’s Workers’ Compensation Law to Report Accident

Florida’s workers’ compensation statute of limitations, Section 440.19 Florida Statutes, is not the only time bar to bringing a workers’ compensation claim. Section 440.185(1) time bars a claim not reported to the employer “within 30 days after the date of or initial manifestation of the injury.” The statute contains four exceptions:

(a) The employer or the employer’s agent had actual knowledge of the injury;

(b) The cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;

(c) The employer did not put its employees on notice of the requirements of this section by posting notice pursuant to s. 440.055; or

(d) Exceptional circumstances, outside the scope of paragraph (a) or paragraph (b) justify such failure.

Notice and Knowledge

Gregory v. Crum Staffing. The First District Court of Appeal ruled on the issues of reporting and actual knowledge. A supervisor witnessed the accident, heard the claimant say “something regarding an injury,” although not specifically about a shoulder injury, and knew he went to a doctor less than 30 days after the accident. The Judge of Compensation Claims (JCC) ruled against the claimant, concluding that the statute required “actual knowledge of the injury to be communicated . . . to the employer within thirty days.” The JCC’s decision was reversed on appeal. The 1st DCA decided that the reporting requirement of 440.185(1) was satisfied, observing that 440.185(1) does not contain an “actual knowledge” provision like the subsection (a) exception. The court did not stop there. It also held that the employer had “actual knowledge of the injury,” explaining as follows:

the notice required to satisfy the knowledge exception to the thirty-day rule need not detail every facet of the injury sustained. Rather, it is sufficient that the employer have notice of an injury. See Alfonso v. MacDinton’s Rest., 515 So. 2d 243 (Fla. 1st DCA 1987); see also Roseboom v. H.T. Constructors, Inc., 527 So. 2d 234 (Fla. 1st DCA 1988); Winter Park Mem’l Hosp. v. Brown, 452 So. 2d 116 (Fla. 1st DCA 1984).

Alfonso v. Mac Dinton’s Restaurant, 515 So.2d 243 (Fla. 1st DCA 1987). Employee slipped and fell on her buttocks. More than five weeks later she reported back pain to her employer for the first time. Later that day she was admitted to the hospital for a back injury. The back claim was denied for late reporting. At trial, one of her employers admitted hearing claimant exclaim from the freezer in which the injury occurred that she had hit her arm on the freezer’s rack. The employer further indicated that he asked claimant if she was all right and that she replied she thought so. The DCA held in favor of the claimant.

September 3, 2016

Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Statute of Limitations in Repetitive Trauma Cases

by Jeffrey P. Gale, P.A.

The key component of every statute of limitations is the triggering event which starts the running of the SOL clock. In Florida workers’ compensation cases, the event is “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.” Section 440.19(1) Florida Statutes. The SOL is two years from this event. (Chapter 95 of the Florida’s statutes addresses the statute of limitations applicable in other types of cases.)

While most workplace injuries arise from acute traumatic events, like falling from a scaffold, some develop over a spread of time from the cumulative effects of repetitive physical labor. A representative example of this is demonstrated by one of our recent cases involving a UPS driver who developed a bad back from lifting and moving boxes for sixteen years.

August 28, 2016

Jeffrey P. Gale, P.A. // Doctor Selection Comparison Between the Longshore and Harbor Workers’ Act and Florida’s Workers’ Compensation Act

by Jeffrey P. Gale, P.A.

Each Act covers a different set of workers. With exceptions, the Longshore and Harbor Workers’ Compensation Act, which is Federal law, applies to “any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker….” Section 902(3). One of the most important exceptions is for “a master or member of a crew of any vessel.” Section 902(3)(G). The rights of these individuals are governed by the Jones Act and Admiralty Law.

Florida’s workers’ compensation laws are contained in Chapter 440 of Florida’s Statutes. They govern the rights of almost every other type of worker employed in the state. Federal employees do not fall under Florida’s workers’ compensation system.

While the LHWCA and Florida’s Chapter 440 are strikingly similar in many respects, one significant difference involves physician selection. Under Section 907(b) of the LHWCA, “[t]he employee shall have the right to choose an attending physician….” In contrast, the employer/carrier selects the treating physicians in Florida’s system. Section 440.13 Florida Statutes.

August 24, 2016

Jeffrey P. Gale, P.A. // Motor Vehicle Accident Law — Maintain Bodily Injury Coverage or Else….

by Jeffrey P. Gale, P.A.

Not a day goes by without someone telling us that he or she has “full coverage.”

Insurance companies authorized to sell vehicle insurance in Florida are required by law to offer a full range of coverage options under the standard policy. However, only two types of coverage, PIP and Property Damage (Liability), are required for the vehicle owner to register and lawfully operate the vehicle in Florida. Many people consider this “full coverage.”

The problem with this “full coverage” is that it falls short of insuring against every type of loss that can result from a vehicle crash. Moreover, it leaves the at-fault party at risk of having his or her driving privileges suspended. § 324.051 (2)(a) Florida Statute s

August 7, 2016

Jeffrey P. Gale, P.A. // The Last Clear Chance Doctrine in Florida Personal Injury Cases

by Jeffrey P. Gale, P.A.

In response to a Complaint we recently filed involving a serious crash on Florida’s Turnpike, the Defendant asserted as an affirmative defense that our client, the Plaintiff, should not recover because she had the “last clear chance” to avoid the accident.

In the many personal injury cases our firm has handled, this is the first time we have had this doctrine asserted. We had to do legal research to understand, what, if anything, it meant in our case. What we learned is that the doctrine has not been applicable in Florida personal injury cases since 1973. Moreover, when it did apply years ago it was always used by Plaintiffs against Defendants, not by Defendants against Plaintiffs. Hence, the affirmative defense in our case is hogwash.

Prior to the Florida Supreme Court’s holding in Hoffman v. Jones, 280 So.2d 431 (Fla., 1973), Florida was a contributory negligence jurisdiction. Hoffman turned Florida into a comparative negligence (or fault) jurisdiction.

August 1, 2016

Jeffrey P. Gale, P.A. // “The Unconstitutional Erosion of the [Workers’ Compensation] Quid Pro Quo”

by Jeffrey P. Gale, P.A.

Our firm has written exhaustively on topics related to Florida’s workers’ compensation system. One of the recurring themes has been the steady loss of rights those in the workplace have experienced over the past 20 years or so. Here is a link to a superb law review article which addresses the subject. It was written in 2015 by Viktorya Johnson, J.D. Candidate, Stetson University College of Law, 2016.

FLORIDA WORKERS’ COMPENSATION ACT: THE UNCONSTITUTIONAL EROSION OF THE QUID PRO QUO

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July 19, 2016

Jeffrey P. Gale, P.A. // Why Reasonable Carrier-Paid Attorney’s Fees Are Reasonable and Necessary

by Jeffrey P. Gale, P.A.

ISSUE: Whether section 440.34 Florida Statutes, recently modified by the Florida Supreme Court in Castellanos v. Next Door Company, et al. (Fla., 2016), should be amended to eliminate insurance carrier-paid reasonable attorney’s fees.

DISCUSSION: In 2009, the Florida Legislature barred judges of workers’ compensation claims (JCC) from awarding reasonable carrier-paid hourly fees to the lawyers of injured workers who were successful in securing benefits for their clients. The legislature limited the allowable fee to the following statutory formula: 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. Section 440.34(1) Florida Statutes.

Because most of the day-to-day workers’ compensation benefits are of low value, the attorney’s fee under the statutory formula for the successful prosecution of a claim for such benefits is correspondingly low. For example, the formula fee for securing the authorization of a $1,000 MRI is $200.

In Castellanos v. Next Door Company, et al. (Fla., 2016), the Florida Supreme Court declared unconstitutional, as a violation of due process under the Florida and United States constitutions, the provisions of 440.34 restricting fees to the statutory formula. The ruling allows workers’ compensation judges to award reasonable fees based on an hourly rate. After seven long years injured workers have a fighting chance to receive all benefits that are due and owing. Unfortunately, there are some individuals within the business community who seek to reverse the effects of the Castellanos ruling through legislative action.

The carrier-pays provisions of section 440.34(3) which open the door to the reasonable hourly rates are triggered by the following limited circumstances: (1) the successful prosecution of a medical-only claim; (2) the successful prosecution of a claim after the carrier has denied the benefit; or (3) the successful prosecution of a claim after the carrier has denied that an accident occurred.

Hence, whether a carrier ever becomes obligated to pay a reasonable hourly fee is a matter entirely within its control.

June 29, 2016

Jeffrey P. Gale, P.A. // Basics of Florida Motor Vehicle Insurance Coverage

by Jeffrey P. Gale, P.A.

Florida law requires every owner or registrant of an operable personal use motor vehicle to maintain Personal Injury Protection (PIP) and Property Damage (PD) – Liability insurance. See Florida Statute 627.733 Required security. While other types of coverage are available under the standard Florida motor vehicle insurance policy, these are the only two that are mandatory. While a premium is charged for the other types of coverage, the value can be worthwhile. For example, the minimum mandatory coverage (PIP & PD – Liability) does not prevent the at-fault insured from losing driving privileges when an accident involves injuries. Bodily Injury (BI) insurance does.

Here is a summary of the various types of coverage available under the standard Florida motor vehicle insurance policy:

Personal Injury Protection (PIP). This coverage is outlined in Florida Statute 627.736. For in-state accidents, PIP covers the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle while not occupying a self-propelled vehicle. For out-of-state accidents occurring within the U.S. and Canada, PIP covers the named insured and resident relatives if occupying a listed vehicle. Remember this: Out-of-state, out-of-vehicle, out-of-luck.

PIP pays:

80 percent of reasonable or allowable accident-related medical expenses
60 percent of lost wages
$5,000 death benefits

The typical PIP policy limit is $10,000 per person with a deductible of up to $2,000.

Property Damage Liability (F.S. 324.022). Covers damage to a third party’s property, including motor vehicles, walls, telephone poles, buildings, etc. The coverage travels with the insured, meaning it applies (with exceptions) when the insured is operating a non-listed vehicle. It may also cover a permissive user of a listed vehicle. The minimum policy limit is $10,000.

Bodily Injury Liability (BI) (324.021). Not mandatory in Florida. However, for those convicted of DUI, it is mandatory for a period of three years after license reinstatement. For convictions before October 1, 2007, the minimum coverage limits are $10,000 per person/$20,000 per accident. On or after October 1, 2007: $100,000/$300,000.

BI covers for injuries and loss of life caused by the insured while operating certain listed vehicles. It may also afford coverage to the insured while operating a non-listed vehicle, like a friend’s car. An added bonus of maintaining BI is that the insurance carrier will furnish a legal defense on its tab. The minimum BI coverage limits are $10,000/$20,000. The maximum can be whatever the insured desires and can afford. Umbrella insurance is a way of increasing limits while saving on cost.
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June 26, 2016

Jeffrey P. Gale, P.A. // The Case Against Amending Florida’s Workers’ Compensation Attorney’s Fee Statute (440.34)

by Jeffrey P. Gale, P.A.

On April 28, 2016, the Florida Supreme Court declared unconstitutional the mandatory fee schedule in section 440.34, Florida Statutes (2009), which eliminated the requirement of a reasonable attorney’s fee to a successful claimant. The ruling, in Castellanos v. Next Door Company, et al., sent shock waves through the workers’ compensation community. Many within the business and insurance industries instantly began howling that the sky was falling. Their protestations, amounting to hyperbole, are overblown.

Marvin Castellanos was injured in the course and scope of his employment. His employer’s workers’ compensation insurance carrier denied benefits, raising twelve defenses. Through the assistance of an attorney, Mr. Castellanos prevailed in his workers’ compensation claim. The Judge of Compensation Claims (JCC) determined that claimant’s attorney devoted 107.2 hours of “reasonable and necessary” time litigating the complex case. However, because section 440.34 limited a claimant’s ability to recover attorney’s fees to a sliding scale based on the amount of workers’ compensation benefits obtained, the fee awarded to Castellanos’ attorney amounted to $164.54, or $1.53 per hour.

The JCC had no choice. Section 440.34 barred him from awarding a reasonable attorney’s fee. The Florida Supreme Court considered this arbitrary and capricious constraint as unconstitutional under both the Florida and United States Constitutions.

June 9, 2016

Jeffrey P. Gale, P.A. // Another Republican Florida Workers’ Compensation Law Bites the Dust

by Jeffrey P. Gale, P.A.

Republicans have held the reins of power in Florida since 1999. Unashamedly, they have abused that power to crush the rights of individuals in favor of Big Business.

One of the areas which has experienced the greatest abuse is the state’s workers’ compensation system. Mercifully, thanks to the Florida Supreme Court the pendulum is beginning to swing in favor of fairness and decency. On April 28, 2016, in Castellanos v. Next Door Company, et al., the court found § 440.34, Florida Statutes unconstitutional. This statute had barred claimants’ attorneys from receiving reasonable attorney’s fees. Literally. The effect of the statute was that Claimants were as helpless as turtles on their backs. By finding this ridiculous law unconstitutional, Castellanos has become the single most important case in the annals of Florida workers’ compensation cases.

The positive momentum continues. Today, in Westphal v. City of St. Petersburg, et al. , the Supreme Court found another outrageous Republican statute, section 440.15(2), Florida Statutes (2009), unconstitutional.

FLORIDA INJURY ATTORNEY BLAWG