Florida Injury Attorney Blawg

September 20, 2015

Jeffrey P. Gale // Florida Statute 440.205 Workers’ Compensation Retaliation/Wrongful Termination COA (Prong #2)

Our previous blog addressed the first prong of a Florida Statute §440.205 workers’ compensation retaliation/wrongful termination cause of action (COA). §440.205 provides:

Coercion of employees.—No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

Case law has established the elements of a §440.205 COA as follows: the employee must prove: (1) he engaged in a statutorily protected activity; (2) an adverse employment action occurred; and (3) the adverse action was causally related to the employee’s protected activity. Russell v. KSL Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004); and Humphrey v. Sears, Roebuck, and Co., 192 F. Supp. 2d 1371, 1374 (S.D. Fla. 2002).

This blog will address prong (2).

September 16, 2015

Jeffrey P. Gale // Florida Statute 440.205 Workers’ Compensation Retaliation/Wrongful Termination COA (Prong #1)

by Jeffrey P. Gale, P.A.

Florida is an at-will employment state. The doctrine often allows employers to end employment relationships without suffering any negative consequences besides paying unemployment compensation benefits.

While the doctrine creates a climate of vulnerability, Florida employers do not have absolute immunity for every termination decision. They can find themselves in hot water for

harassing or terminating an employee because of his or her protected member status (e.g., race, color, religion, national origin, age, sex);
retaliating against an employee for engaging in whistleblowing activities (also, US Dept. of Labor);
retaliating against an employee for seeking benefits under the FLSA; or
retaliating against an employee for making a valid claim for compensation or attempting to claim compensation under §440.205 Florida Statutes of Florida Workers’ Compensation Act.

This blog will address the first element of a §440.205 retaliatory discharge claim.

September 5, 2015

Jeffrey P. Gale, P.A. // Example of Florida’s Eroding Workers’ Compensation Benefits — TTD (440.15(2)(b))

by Jeffrey P. Gale, P.A.

I have blogged often to express my displeasure and dismay with the slow and sometimes immediate erosion of benefits available to injured workers under Florida’s workers’ compensation system. This blog highlights one example.

The Florida Legislature enacted the state’s first “Workman’s” Compensation Act in 1935. While I have not done a case study of the Act and its changes from 1935, I can speak with authority on the subject from when I first became involved in the system in 1989: The quality and value of benefits available to Claimants have diminished dramatically to now.

A clear and simple example involves §440.15(2)(b) Florida Statutes.

August 31, 2015

Jeffrey P. Gale, P.A. // Burden on Defendant to Prove Entitlement to Offset

by Jeffrey P. Gale, P.A.

Personal injury plaintiffs and defendants battle over past and future damages. One frequent battleground concerns the amount a plaintiff should be awarded for future medical expenses.

Not infrequently, plaintiffs have sources such as health insurance, workers’ compensation, PIP, Med Pay, Medicaid, and Medicare to cover some or all of their future medical expenses. Almost always, these sources pay less than the usual and customary rates charged by most medical providers. Moreover, by accepting payments from these sources, medical providers are barred, in most instances, from balance billing beyond a small copay.

August 30, 2015

Jeffrey P. Gale, P.A. // Future Damages Not Offset by Parental Payments

by Jeffrey P. Gale, P.A.

Florida’s civil justice system allows accident victims to seek damages from those alleged to be at fault. Damages awardable fall into two broad categories: Economic and non-economic.

Economic damages include medical expenses (past and future), past lost income, and the loss of earning capacity in the future. In some instances, Florida law allows these economic damages to be offset, or reduced, by or to the amount the victim received from other sources for the same loss. See §786.76 Florida Statutes and Florida Standard Jury Instruction 501.8.

August 29, 2015

Jeffrey P. Gale, P.A. // Florida’s First DCA Ostensibly Workers’ Compensation’s Supreme Court

by Jeffrey P. Gale, P.A.

Florida has five district courts of appeal. These courts are charged with reviewing rulings and outcomes arising in lower tribunals. Above these courts sits the Florida Supreme Court. This court reviews decisions issued by the five lower courts of appeal.

Cases reach the Florida Supreme Court in one or more of the following ways: (1) an opinion rendered by one appellate court conflicts with an opinion of one or more other appellate courts; (2) the opinion conflicts with a Supreme Court decision; (3) the appellate court decision declares a statute unconstitutional; or (4) the appellate court declares the question(s) before it to be of great public importance. By far, number (1) is the most common method.

August 27, 2015

Jeffrey P. Gale, P.A. // Avoid Limiting Tavern Owner Liability to Dram Shop Law

by Jeffrey P. Gale, P.A.

Floridians, like residents in every state, are acutely aware “of the terrible toll taken, both in personal injuries and property damage, by drivers who mix alcohol and gasoline,” Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200, 205 (1983). While many of the culprits receive their intoxicating fuel from bars and restaurants, the legal standard for holding establishments liable for vehicle crashes caused by their patrons is exceedingly high. §768.125 Florida Statutes, Florida’s Dram Shop statute, provides the standard:

Liability for injury or damage resulting from intoxication.—A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

July 19, 2015

Jeffrey P. Gale, P.A. // Florida Statute 440.34 Workers’ Compensation Fees

by Jeffrey P. Gale, P.A.

The first sentence of §440.34(1) Florida Statutes advises that every attorney’s fee received by a Florida workers’ compensation claimant’s attorney must be approved by a judge of compensation claims (JCC). This is the case whether the fee is paid by the claimant, an employer, or a workers’ compensation insurance company. A violation of the law is a crime. Florida Statute 440.34 outlines the main types and amounts of fees available to claimants attorneys. (Statutes 440.105, 440.32(1)&(2), and 57.105 describe fees available as sanctions.) While fees in personal injury cases typically range from 33-1/3%-40%, the allowed percentage in workers’ compensation case is significantly less. Here is the basic formula:

Any attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to 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.

§440.34(1) Florida Statutes. Continue reading

July 14, 2015

Jeffrey P. Gale, P.A. // Medicare & Medicaid Subrogation Rights on Post-Personal Injury Settlement Payments

by Jeffrey P. Gale, P.A.

Collateral sources, such as health insurance, workers’ compensation, Med-Pay, Medicare, and Medicaid, which pay the medical expenses of an injured party arising from a third party’s negligence acquire a subrogation or reimbursement right in payments made to the injured party by the third party. (In Florida, Personal Injury Protection (PIP) insurance is the main exception to the rule. It does not acquire subrogation rights.) Failing to honor the right can have serious consequences against both the injured party and his or her attorney.

There is little debate that payments made before a case is settled or judgment is entered are subject to the lien. Less certain is whether payments made post-settlement or -judgment for services incurred pre-settlement or -judgment are subject to the lien.

July 3, 2015

Jeffrey P. Gale, P.A. // Apportioning Settlement Proceeds in Florida Wrongful Death Cases

by Jeffrey P. Gale, P.A.

Not infrequently, the amount of money available following a wrongful death accident to fully satisfy outstanding debts (e.g., medical bills, funeral expenses, credit cards) and compensate survivors for their loss is inadequate. Where the settlement [in the wrongful death claim] is less than the full value of the claim, the personal representative is charged with employing a reasonable and equitable method of apportioning the distribution of settlement proceeds among the survivors and the estate. See In re Estate of Wiggins, 720 So. 2d 523 (Fla. 4th DCA 1999).

FLORIDA INJURY ATTORNEY BLAWG