Florida Injury Attorney Blawg

November 26, 2015

Jeffrey P. Gale, P.A. // Proving Workers’ Compensation PTD in Florida

PTD, the acronym for Permanent Total Disability, is the only post-MMI (maximum medical improvement; § 440.02(10) Florida Statutes) workers’ compensation wage loss benefit available to Florida’s injured workers. A Claimant has four ways of qualifying for PTD.

The first way is by proving at least one of the injuries listed in § 440.15(1)(b) (2015). Doing so establishes a rebuttable presumption of PTD. (The burden is on the employee to prove the injury.) Since the presumption is rebuttable, the employer or carrier can overcome the PTD presumption by establishing that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence.

November 11, 2015

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

by Jeffrey P. Gale, P.A.

The 1986 Immigration Reform and Control Act (IRCA) prohibits the employment of illegal aliens in the United States. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002). To accomplish this goal, the IRCA requires employers to verify the identity and eligibility of all new hires by examining specified documents, including social security account number cards, before they commence work. See generally § 1324a(b); see also Hoffman, 535 U.S. 137 at 148, 122 S.Ct. 1275.

Workers lose wages for various reasons. In Hoffman, for example, the employee was wrongfully terminated for engaging in union activities. More frequently, wages are lost because of work related injuries.

November 3, 2015

Jeffrey P. Gale, P.A. // Hold Hospitals’ Feet to the Fire

by Jeffrey P. Gale, P.A.

Most Florida hospitals and many doctors have contracts with health insurance companies to provide services to covered insureds at discounted rates. The arrangement requires those providers to bill the carriers for covered services without seeking payment from insureds through self-pay and other sources such as third party liability insurance. Some contracts allow providers to collect copayments.

We are currently handling a car crash case involving a local hospital that purposely failed to bill our client’s health insurance company with the expectation of receiving more money from the proceeds of our client’s settlement with the at-fault driver’s bodily injury liability insurance company. The hospital filed a lien for charges totaling more than $39,000 for a three hour emergency room visit. (The hospital is located in Miami-Dade County. An old Dade County ordinance grants hospitals lien rights. However, the lien does not take precedent over contractual obligations between hospitals and insurers.) It received $8,000 from our client’s PIP insurance — not to be confused with health insurance — leaving a $31,000 balance. (We are questioning the hospital’s right to bill PIP. The money it received could have been used to pay medical providers who do not accept our client’s health insurance.) Since the bodily injury policy per person limit is $25,000, something has to give. (Bodily injury liability insurance provides coverage in case you cause an accident in which another person (or people) is hurt. It covers the damages that you are legally responsible for, and provides a legal defense if someone sues you for damages.)

November 1, 2015

Jeffrey P. Gale, P.A. // Employers Skirt Florida’s Workers’ Compensation System

by Jeffrey P. Gale, P.A.

Florida employers with four or more employees must maintain workers’ compensation insurance or a statutorily prescribed alternative. §440.055 Florida Statutes (2015). An employer who fails to maintain the coverage may nevertheless be sued by an injured employee for workers’ compensation benefits or, in the alternative, the employee may proceed at common law to recover damages for injury or death. §440.06 Florida Statutes (2015). When sued at common law, the non-compliant employer “may not … defend such a suit on the grounds that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his or her employment, or that the injury was due to the comparative negligence of the employee.” §440.06 Florida Statutes (2015).

To limit or avoid the cost of workers’ compensation insurance, Florida employers sometimes understate payroll and/or purposely mischaracterize employees as independent contractors. Independent contractors are not employees. §440.02(15)(d).

October 31, 2015

Jeffrey P. Gale, P.A. // A Dog is Not an Uninsured Motorist

by Jeffrey P. Gale, P.A.

In a state (Florida) that does not require motorists to maintain Bodily Injury (BI) insurance, having Uninsured Motorist (UM)/Underinsured Motorist (UIM) coverage, within the prescripts of Florida Statute 627.727, is the best protection against uninsured/underinsured drivers. Per 627.727(1), UM/UIM is designed

“for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom.”

We were recently contacted by a woman who sustained severe injuries from striking a tree after swerving to avoid hitting a dog. She had UM/UIM insurance, but because the dog, of course, was not operating an uninsured or underinsured motor vehicle, the coverage was not triggered. By contrast, had the woman swerved to avoid colliding with a so-called phantom vehicle which had cut her off, the prerequisite for UM coverage would have been met.

These are straightforward examples. Some are not.

September 27, 2015

Jeffrey P. Gale // Florida Statute 440.205 Workers’ Compensation Retaliation/Wrongful Termination COA (Prong #3)

by Jeffrey P. Gale, P.A.

In previous blogs, we addressed the first and second elements of a Section 440.205 Florida Statutes wrongful retaliation/termination cause of action. This blog will address prong the third element.

§440.205 reads as follows:

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 broken this cause of action down into the following elements:

The employee engaged in a statutorily protected activity;
An adverse employment action occurred; and
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).

September 26, 2015

Jeffrey P. Gale, P.A. // Virtually Impossible in Florida to Overcome Workers’ Compensation Immunity (440.11)

by Jeffrey P. Gale, P.A.

Florida’s workers’ compensation system was created, in 1935, with the goal of providing benefits to injured workers without the delay of having to prove the accident was caused by the employer’s negligence. In exchange for this no-fault system, employers were granted immunity from being liable for negligence.

The system, however, did not afford absolute immunity. There was a time when employees who were able to demonstrate that an employer engaged in conduct which is substantially certain to result in injury or death, could pursue a civil remedy. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000).

While difficult, overcoming workers’ compensation immunity by establishing substantial certainty was within reach.

In 2003, Governor Jeb Bush and the Florida Legislature put the chance of overcoming workers’ compensation immunity out of reach. New measures, in the form of Florida Statute 440.11, were instituted to make overcoming employer immunity virtually impossible.

September 20, 2015

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

by Jeffrey P. Gale, P.A.

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.

FLORIDA INJURY ATTORNEY BLAWG