Florida Injury Attorney Blawg

May 16, 2023

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

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.

April 17, 2023

Jeffrey P. Gale, P.A. // Florida Republican Gov. Ron DeSantis Signs Legislation Limiting Access to Courts in Personal Injury Cases

by Jeffrey P. Gale, P.A.

On March 24, 2023, Florida Governor Ron DeSantis signed into law a bill passed by the Florida Legislature aimed at limiting the rights of individuals from seeking and obtaining civil redress in the courts for personal injuries. The bill is House Bill 837. Parts of the bill became effective when it was signed by DeSantis. It will change many existing laws in dramatic ways.

Statute of Limitations. The most obvious change is to limit the time period during which a personal injury case can be filed from four years to two years. This time limitation is known as the statute of limitations. Claims filed after the SOL period will be time-barred.

It is not unusual for individuals involved in accidents to wait years before deciding to pursue a claim. The reasons for delaying are varied but include not knowing a claim can be brought, personal disruption caused by the incident, injury recovery time, an ideological opposition to involving the civil justice system, and bad legal advice.

Proponents of the reduced statute of limitations period are seeking to limit the number of lawsuits that are filed. The opposite may happen. Most personal injury cases are resolved without a lawsuit being filed. Even in cases where a remedy is sought within two years of the incident, it is not unusual for those cases to be resolved without a lawsuit well after two years from the incident date. Reasons for this include injury healing time and ongoing negotiations.

Because of the shortened time period, lawsuits will have to be filed in many cases simply to preserve the right to a remedy even if the case would otherwise resolve amicably without filing. Once a lawsuit is filed, the contingency fee payable by the plaintiff upon recovery rises and the cost of handling the case increases. These factors make it more difficult to settle out of court.

Bottom line: the goal of limiting lawsuits by shortening the SOL will be offset by lawsuits having to be filed to keep from being time-barred. While some people will lose out on a remedy by going over the SOL, the legal system will not see a reduced burden. Hence, the measure is a net negative.

April 2, 2023

Jeffrey P. Gale, P.A. // Response to Defendant’s Motion to Exclude Evidence

by Jeffrey P. Gale, P.A.

We have a case in which the defendant knowingly did the same thing after we sued him that he denied doing knowingly in our case. The thing he has denied doing forms the crux of our case.

The case is on the trial docket. In the lead-up to calendar call, defendant filed a Motion in Limine seeking to prevent us from using the subsequent activity as evidence to overcome his denial. The motion has not yet been ruled upon by the trial judge.

Our client sustained catastrophic injuries while working on a construction project, an addition to the defendant’s personal residence. The defendant homeowner hired an unlicensed contractor to manage the project. Typically, Florida law prohibits property owners from using unlicensed contractors to run projects. However, the law provides an exception to the rule for work done on a residence where the homeowner undertakes the project as the owner-builder. See Florida Statute 489.103(7). Under the exception, the homeowner assumes the legal duties and liabilities that would otherwise belong to a licensed contractor, foremost among them protecting the safety of workers and being liable for injuries caused by a breach of the duty. It is our position that the unlicensed contractor was negligent, that this negligence caused our client’s accident, and since this was an owner-builder project, the defendant owner-builder is vicariously liable for the unlicensed contractor’s negligence.

Defendant executed paperwork to obtain the building permit. He is listed in the paperwork as the owner-builder. Defendant claims he did not know until after being sued that he undertook the project as the owner-builder and that the person he hired to manage the project was unlicensed. While these claims should not be enough to overcome the defendant’s liability, we want to stop them in their tracks to limit any chance of them gaining traction with an uncertain jury.

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.

February 4, 2023

Jeffrey P. Gale, P.A. // Transitory Substance Premises Liability Law in Florida

by Jeffrey P. Gale, P.A.

For purposes of this blog, a transitory substance is any solid or liquid substance, object, or item that is located in a place where it does not belong.

Certain legal standards must be met in order to prevail in a case for personal injuries caused by a transitory substance. Before Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla. 2001), the injured person had to prove that the owner or person in possession of the premises had actual or constructive knowledge of the transitory substance. Constructive knowledge required a showing “that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it.” Colon v. Outback Steakhouse of Florida, Inc., 721 So.2d 769, 771 (Fla. 3d DCA 1998).

Florida’s appellate courts struggled to determine whether in a given case sufficient evidence existed to create a jury question on the issue of constructive notice. Owens tried to eliminate the struggle by creating a new rule:

where a plaintiff slips and falls on a transitory foreign substance in a defendant’s business premises, once the plaintiff establishes that he or she fell as a result of that transitory foreign substance, the burden shifts to the defendant to produce evidence that it exercised reasonable care under the circumstances.

The rule eliminated the need for proving actual or constructive notice and placed the burden on defendants to show they exercised reasonable care through their maintenance, inspection, repair, and warning procedures and modes of operation.

By the next legislative session, the rule announced in Owens was adopted in part and modified by the Florida Legislature. See Section 768.0710, Florida Statutes (2002). The statute was modified to shift the burden onto claimants to demonstrate that the defendant failed to exercise reasonable care.

In 2010, section 768.0710, Florida Statutes (2002) was repealed and replaced with section 768.0755, Florida Statutes. The new statute eliminated negligent maintenance, inspection, repair, warning, or mode of operation as a means of establishing fault, and it reinstated the actual or constructive knowledge standard. The differences between the statutes are explained in Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418, 424-26 (Fla. 4th DCA 2014):

The most significant change between sections 768.0710 and 768.0755 concerned prior notice of a dangerous condition. The older 2002 statute expressly stated actual or constructive notice was not “a required element of proof to this claim,” but the new 2010 statute expressly stated the plaintiff “must prove that the business establishment had actual or constructive knowledge of the dangerous condition.” Additionally, the new statute does not contain any language regarding the owner’s negligent maintenance, inspection, repair, warning, or mode of operation.

The McGruder court went on to say:

Under the 2002 statute, a plaintiff could succeed in a slip and fall case by showing ‘the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises,’ without showing the business had actual or constructive knowledge of the transitory foreign substance. Under the 2010 statute, however, the same plaintiff would be unable to successfully assert such a cause of action, no matter how persuasive or compelling the evidence the plaintiff had in support of the claim.

Section 768.0755 reads as follows:

(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:

(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or

(b) The condition occurred with regularity and was therefore foreseeable.

(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

Whereas 768.0710 was a version of Owens, 768.0755 is a throwback to the law as it existed before Owens. The following cases, both pre-Owens and post-768.0755, are examples of how the law is applied. Since Owens is moot, none of the cited cases were decided under Owens.

Against Plaintiff

North Lauderdale Supermarket v Puentes, 332 So.3d 526 (Fla. 4th DCA 2021). Puentes slipped and fell on a purportedly oily substance on the floor of Defendant’s business establishment. Defendant appealed the non-modified use of standard jury instruction 401.20(a) (“Issues on Plaintiff’s Claim — Premises Liability”). In pertinent part, the instruction read as follows:

Whether Defendant, Sedano’s Supermarket #35, negligently failed to maintain the premises in a reasonably safe condition….

Finding that the instruction was not correct, the DCA reversed. The court explained that the law in effect, section 768.0755, differs from its predecessor, section 768.0710, by not allowing for liability based solely on the business establishment’s general failure to maintain the premises, while the instruction permitted the jury to find Defendant liable on a theory of negligent maintenance without making the statutorily required finding that Defendant had actual or constructive knowledge of the dangerous condition. The court noted that the Committee on Standard Jury Instructions (Civil) at 2 (June 7, 2019), did not propose redrafting instruction 401.20(a) itself, stating that the instruction remained “accurate for premises liability claims involving a landowner or possessor’s negligence toward invitees and invited licensees that do not involve transitory foreign substances.” Id. (emphasis added).

Lago v. Costco Wholesale Corp., 233 So.3d 1248 (Fla. 3rd DCA 2017). A slip and fall case. Summary judgment for Costco affirmed on appeal. The appellate court noted the following factors: As to actual notice, Lago testified she did not see any Costco employee around the liquid or by the entrance before or when she fell. As to constructive notice, “Lago’s testimony was almost identical to the Delgado [Delgado v. Laundromax, Inc., 65 So.3d 1087 (Fla. 3d DCA 2011)] plaintiff. Lago testified that it was not raining (the slip and fall happened under an overhang in front of the Costco entrance), she did not see the liquid on the floor before she fell, she didn’t know what the liquid was (other than that it was wet), and she didn’t know how long it had been there. Lago saw no one else slip in the same busy entranceway before and after her fall.” “Without additional facts suggesting the liquid had been there for a long period of time or this happened regularly, the trial court properly granted summary judgment in favor of Costco.”

Tallahassee Med. Ctr., Inc. v. Kemp, 324 So.3d 14 (Fla. 1st DCA 2021). Trial court denial of directed verdict for defendant Tallahassee Medical Center reversed on appeal. Plaintiff fell in front of a utility-room door. The court decided that video evidence of employees moving trash bags, linen bags, and trays into the utility room next to where she fell and a housekeeping cart wheeled over the spot that she fell was not enough circumstantial evidence to get the case to a jury. The court noted that the video showed no leaks, spills, drops, or other deposits of a liquid substance onto the floor and that plaintiff saw nothing drop from the tray being carried by the employee she saw immediately before her fall. Here’s the court’s reasoning:

Plaintiffs may not stack inferences upon a debatable inference drawn from circumstantial evidence. See [State Farm Mutual v] Hanania, [261 So. 3d 684] at 687 [Fla. 1st DCA 2018]. Instead, a directed verdict should issue for a defendant “if a plaintiff relies upon circumstantial evidence to establish a fact, fails to do so to the `exclusion of all other reasonable inferences,’ but then stacks further inferences upon it to establish causation.” Id. (quoting Broward Exec. Builders, Inc. v. Zota, 192 So. 3d 534, 537 (Fla. 4th DCA 2016)). This rule against stacking inferences “protect[s] litigants from verdicts based on conjecture and speculation.” Id. (quoting Zota, 192 So. 3d at 537; see also Publix Super Markets, Inc. v. Bellaiche, 245 So. 3d 873, 876 (Fla. 3d DCA 2018) (foreclosing a jury from stacking inferences from circumstantial evidence to arrive at a verdict).

Walker v. Winn-Dixie Stores, Inc., 160 So.3d 909 (Fla. 1st DCA 2014). Summary judgment for Winn-Dixie upheld on appeal. The facts:

Appellant saw no water or other liquid substance before she fell.
She could not say whether she saw any such substance on the floor after she fell, although she claimed she saw “wet tracks” from the wheels of the cart.
When asked if she saw any water tracks, Appellant responded: “I just know that my shoes got damp from the floorboard of the electric cart” while bringing the cart back to the store.
Appellant described the condition that allegedly caused her fall as “just drops of water” that were “unnoticeable”; thus, she did not see the substance before her fall. Furthermore, she was not sure how long the water was there.
The store manager observed a video taken by a store surveillance camera that showed two of his assistants inspecting the area where Appellant fell two to three minutes before the incident happened.
When asked if it rained on the day in question, the manager responded that he believed it did, but “I don’t know if it just stopped or just started.” When asked why he believed it rained, Williams responded: “Because in the video, it shows that we had an umbrella rack up,” which are “plastic bags where your umbrella gets into, and that’s to keep them from dripping.” These are put out “[b]efore a rain or during a rain.”
Pursuant to Winn-Dixie’s rainy-day policy, right before a rain or after, a mat, two cones, and an umbrella rack would be put down near the entrance door. The manager did not see the mat in place in the video footage from the time of the incident. Asked why the mat was not down, he didn’t know if it was because it had stopped raining, or if it hadn’t rained yet and his people were in the process of doing it.
As for why the umbrella rack was there, the manager assumed that it had just rained or was about to rain.

January 21, 2023

Jeffrey P. Gale, P.A. // Insuring Against Damages in Florida Motor Vehicle Crash Cases

by Jeffrey P. Gale, P.A.

Accidents happen. Being properly insured for motor vehicle crashes is good for the insured and for persons harmed through the insured’s negligence.

Florida is one of only three states that does not require owners of motor vehicles registered in the state to maintain bodily injury (BI) insurance. Bodily injury insurance covers losses for economic (e.g., lost wages and medical bills) and non-economic damages, also known as human damages, such as pain and suffering, disfigurement, mental anguish, and the loss of capacity for the enjoyment of life.

While BI coverage is not mandatory, it is available from every insurance carrier that sells motor vehicle insurance in the state. The first thing to keep in mind when securing BI insurance is the coverage limit under the policy. As with anything else, you get what you pay for. The minimum BI coverage limit in Florida is $10,000; the sky is the limit for how much coverage can be purchased. Individuals and companies with large assets subject to judgments are well-advised to maintain high coverage limits.

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.

FLORIDA INJURY ATTORNEY BLAWG