Florida Injury Attorney Blawg

July 5, 2011

Florida Workers’ Compensation Law: Proving Medical Causation

Chapter 440, the body of statutes governing Florida’s workers’ compensation system, places on the injured worker, also known as the Claimant, the burden of proving the accident caused his or her injuries. Almost always, medical evidence is required to meet the burden.

Certain elements must be established to meet the burden. Shown below is the information I rely on to keep from missing one or more critical elements. Also helpful in realizing the essential medical proof is Form DWC-25, Florida Workers’ Compensation Uniform Medical Treatment/Status Reporting Form, the form all authorized doctors are required to complete and submit to the carrier after every appointment.

Florida Statute 440.09 Coverage.—- (1) The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment. The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries. For purposes of this section, “major contributing cause” means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought. In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable. For purposes of this section, “objective relevant medical findings” are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing. Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must be by medical evidence only, as demonstrated by physical examination findings or diagnostic testing. Major contributing cause must be demonstrated by medical evidence only.

Elements of 440.09 requiring medical testimony:

The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty,
based on objective relevant medical findings,
and the accidental compensable injury must be the major contributing cause of any resulting injuries.
For purposes of this section, “major contributing cause” means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought.
In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. (Note: What does “medical certainty” mean? Who knows. Black’s Law Dictionary says that it is more than probable. Regular dictionary says certain means: inevitable, sure to happen, indisputable, dependable. If the doctor asks what it means, tell him or her that it is something that is reasonably sure to happen.)
Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable.
For purposes of this section, “objective relevant medical findings” are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing.
Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must be by medical evidence only, as demonstrated by physical examination findings or diagnostic testing.
Major contributing cause must be demonstrated by medical evidence only.

Florida Statute Section 440.02(1): When used in this chapter, unless the context clearly requires otherwise, the following terms shall have the following meanings:
(1) “Accident” means only an unexpected or unusual event or result that happens suddenly. Disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or controlled substances or narcotic drugs, or a disease that manifests itself in the fear of or dislike for an individual because of the individual’s race, color, religion, sex, national origin, age, or handicap is not an injury by accident arising out of the employment. Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable, with respect to any compensation otherwise payable under this chapter. An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.

Elements of 440.02(1) requiring medical testimony:

Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable….
An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.

July 4, 2011

“Tort Reform” Violates 7th Amendment to the U.S. Constitution

by Jeffrey P. Gale, P.A.

On the 4th of July, of all days, the following topic should be considered one of utmost importance.

The 7th Amendment to the United States Constitution guarantees the right to a trial by jury in civil cases.

Seventh Amendment of the US Constitution
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”

Our Founding Fathers considered the right essential to the preservation of liberty in America:

James Madison: “In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

Thomas Jefferson called civil jury trials, “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

In fact, the right to a trial by jury of civil suits dates back nearly 800 years, to the signing of the Magna Carta of 1215. Article 39 of the Magna Carta specifically guaranteed the right in both civil and criminal cases.

Pretty serious stuff.

Sadly, the 7th Amendment right it teetering on the brink of collapse under years of unrelenting political and legal warfare funded by Corporate America and fought by its groundtroops composed of lobbyists and so-called “conservative” politicians – in my view, the word “radical” more accurately describes the mentality of these politicians.

In the name of “economic efficiency,” the drug industry, financial institutions, manufacturers, and other entities for years have pushed “tort reform” – the enactment of laws specifically designed to provide immunity to wrongdoers at the expense of the 7th Amendment. Unfortunately, their propoganda, lies, and distortions have been accepted as truth by the very same people the 7th Amendment is designed to protect. A classic example of “We the People” being fooled into supporting measures that are against our own best interests.
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June 30, 2011

Florida Law: Pre-Incident Waivers Precluding Actions Based on Subsequent Negligence

by Jeffrey P. Gale, P.A.

One would hope and expect in a society purporting to be civilized, that the negligence of any person or company could not be waived before it happened. Astonishingly, Florida law allows just that: pre-accident releases/waivers barring actions based on the subsequent negligence of the released party.

In other words, Florida law sanctions the equivalent of the Monopoly game, “Get out of Jail Free” pass to those whose wrongoing may injure or kill others.

Cognizant of the tremendous consquences of this law – for example, no hope of compensation for a catastrophically injured person – Florida courts have at least decided that contracts which purport to release or indemnify a party for its own negligence are looked upon with disfavor and will not be enforced unless the instrument clearly and specifically provides for a limitation or elimination of liability for such acts. University Plaza Shopping Center v. Stewart, 272 So. 2d 507, 511 (Fla. 1973). Moreover, it may be settled law that the word “negligence” must appear in the release. See, Bender v. Caregivers of America, Inc., 42 So.3d 893 (Fla 4th DCA 2010); Travent, Ltd. v. Schecter, 718 So. 2d 939, 940 (Fla. 4th DCA 1998); Witt v. Dolphin Research Ctr., Inc., 692 So. 2d 27, 28 (Fla. 3d DCA 1991); Rosenberg v. Cape Coral Plumbing Inc., 920 So. 2d 61, 66 (Fla. 2d DCA 2005); and Levine v. A. Madley Corp., 516 So. 2d 1101 (Fla. 1st DCA 1987).
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June 28, 2011

Determining Compensation Under the Fair Labor Standards Act (FLSA)

by Jeffrey P. Gale, P.A.

The Fair Labor Standards Act (FLSA) requires employers to pay employees overtime pay, at a rate of time and a half, for all hours worked in excess of 40 hours per week. See Section 207 of the Act.

To calculate the amount of compensation an employee is owed under the FLSA, the overtime rate (OT rate) must be determined.

The first step in this equation is establishing the “regular rate of pay,” the hourly rate. If the employee has not received employer-furnished fringe benefits, such as health insurance and housing, the “regular rate of pay” is the hourly rate, and the OT rate is 1/2 of the hourly rate. For example, if the “regular rate of pay” is $10.00/hour, the overtime rate is $5.00.

Where fringe benefits have been provided, their value must be included in the calculation. In the case of health insurance, the fringe benefit value determination is relatively simple to make, with the employer’s share of the premium payment being the actual “value” of the fringe benefit. Where the employer is not making an easily identifiable payment, such as in the case of self-administered medical programs provided by some big emloyers, or where housing is provided by the employer, determining the value of the benefit is not as simple. Not infrequently, the parties will fight over the value of fringe benefits. (Caveat: the employer may try to argue that the fringe-benefit is a form of payment for overtime wages, rather than a benefit which increases the “regular rate of pay.” Paycheck stubs and tax records, among other evidence, must be considered to resolve this dispute.)

Where fringe benefits are part of the calculation, determining the OT Rate is a 3-step process:

Step 1 – Regular Weekly Pay: Hourly rate of pay times (x) hours worked per week plus (+) value of fringe benefit(s). (Example: $10/hr x 62 hours + $50 (weekly insurance premium.))

Step 2 – Regular Rate of Pay: Regular Pay divided (/) by hours per week.

Step 3 – OT Rate: Equals 1/2 of Regular Rate of Pay.

June 26, 2011

Troubling Decline in Federal Jury Trials

by Jeffrey P. Gale, P.A.

Jury trials are at the very foundation of American participatory democracy. According to Alexis de Tocqueville, in Democracy in America, “The jury contributes powerfully to form the judgment and to increase the natural intelligence of a people; and this, in my opinion, is its greatest advantage. It may be regarded as a gratuitous public school, ever open, in which every juror learns his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even the passions of the parties. I think that the practical intelligence and political good sense of Americans are mainly attributable to the long use that they have made of the jury in civil cases.”

The foundation is at risk.

This point was brought home by U.S. District Judge Gregory Presnell at a recent Federal Court Practice Committee’s meeting in Orlando, Florida. Judge Presnell expressed alarm at the precipitous decline in Federal jury trials. He noted that in the late 1960s, 11 percent of federal civil filings wound up in jury trials, while in 2009, that number had dipped to 1.2 percent. (In the U.S. Middle District of Florida, only 0.8 percent of civil filings were resolved by a jury in 2009.)

Expressing strong feelings about the importance of jury trials, Judge Pressner asked his audience, “Where in a government this complex – and with the difficulties and issues and problems – do you have a system where six or 12 people make a critical decision affecting people’s lives and fortunes?”

The reasons for the decline in civil jury trials at the federal – and the state level – include unfair arbitrary damage caps, mandatory binding arbitration, the creation of causes of action without the right to a jury trial, overly stringent gatekeeping on the part of judges to weed out cases perceived as being weak, and mandatory (although not binding) mediation.
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June 25, 2011

South Florida Attorney Blog re FLSA: Novartis Pharmaceutical Employees Entitled to Overtime Pay

by Jeffrey P. Gale, P.A.

The Fair Labor Standards Act (FLSA) requires employers to pay employees overtime pay, at a rate of time and a half, for all hours worked in excess of 40 hours per week. See Section 207 of the Act. However, the FLSA contains many exemptions, including for “administrative” employees, perhaps the most common exemption, and “outside” salespeople.

Novartis is a drug manufacturer. It sells its drugs to wholesalers, who sell to pharmacies, who sell to patients who are prescribed the drugs by their doctors. Novartis benefits from doctors prescribing its drugs.

Novartis employs a small army of individuals who do not sell the drugs directly to the doctors but instead make regular calls on doctors to encourage them to prescribe Novartis drugs to their patients. 2500 of these individuals brought a class action against Novartis for FLSA overtime wages. Novartis argued that they were exempt as outside salespeople and administrative employees. The Plaintiffs countered by arguing that they do not make sales or obtain orders, and thus are not salespeople, and do not exercise discretion and independent judgment, two of the critical indicia for the “administrative” employee exemption.
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June 20, 2011

“Hot Coffee” – HBO to Air Documentary Exposing the McDonald’s Coffee Case Lies

by Jeffrey P. Gale, P.A.

In a previous blog, The Truth About the McDonalds Coffee Spill Case – Fallacy Debunked, I presented the honest facts about the infamous McDonald’s Coffee Spill case. Sadly, the truth bears little resemblence to the shameless lies spread by Corporate America.

Why would Corporate America lie about this case? Simple. To influence the American public to push for laws making it more difficult for individuals to hold Corporate America accountable for its negligent behavior. In other words, fool people into supporting laws that are harmful to their own and America’s best interests.

Corporate America saw the case, which involved the spilling of coffee and a large jury verdict, as the perfect vehicle for attacking the civil justice system. It figured that unknowing individuals would accept its lies and distortions without question, causing them to revolt against the very system that stands between them and total control by corporate interests. Frighteningly, they figured right. (Even seemingly well-educated people have fallen for the garbage. My rabbi wrongly used the case as the theme of his Yom Kippur sermon. When I called him on it days later, he made further stupid arguments to support his misguided position, unwilling and unable through years of propoganda to admit that he was wrong. He is now my former rabbi because I have chosen to worship elsewhere.)
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June 18, 2011

Medicare Set Asides in Personal Injury Liability Cases

by Jeffrey P. Gale, P.A.

There is much discussion taking place today concerning whether or not Medicare Set Asides are required in personal injury cases. The answer seems to be No, but the consequences of being wrong have many in the personal injury business, lawyers and insurance companies alike, greatly concerned.

The Medicare Secondary Payer Act of 1980 (“MSP”) was enacted to keep taxpayers from footing past and future medical expenses through Medicare that were provided through primary sources such as workers’ compensation insurance. Congress learned that Medicare was covering these expenses even though those receiving the benefits were also receiving compensation for the same benefits from primary sources.

Until 2010, the MSP’s main focus was on workers’ compensation cases. Injured workers were expected to reimburse Medicare and pay for future medical care related to their accidents from money received through workers’ compensation settlements. Although liability claimants were expected to reimburse Medicare for benefits paid, no issue was made with regard to future benefits.

In 2010, representatives from The Centers for Medicare and Medicaid Services (“CMS”), the federal agency responsible for administering Medicare and Medicaid (as well as a host of other federal programs ) within the Department of Health and Human Services, began suggesting that the MSP applied to future medical services in liability cases. It was pointed out that statutory language with regard to workers’ compensation and liability cases was the same. Speaking about liability cases, Barbara Wright of CMS stated: “So where future medicals are a consideration in arriving at the settlement, appropriate arrangements should be made for appropriate exhaustion of the settlement before Medicare is billed for related services.”

Although the statement was made at a town hall meeting, instead of by formal agency rule making like the Code of Federal Regulations, many concerned parties began to believe that MSA’s were now required in liability cases. Whether this statement and others that have followed have the same force of law as formally issued regulations is creating tremendous confusion and may well be a subject of future litigation.
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June 16, 2011

Florida Civil Law: Liability for Injuries Caused by Broken Chairs

by Jeffrey P. Gale, P.A.

Accidents caused by broken chairs are not uncommon. In some cases, the injuries can be severe (e.g., broken bones; herniated intervertebral discs). Through normal wear and tear, defects can develop that create conditions for imminent accidents. To avoid these dangerous situations, it is necessary to be reasonably observant and even pro-active with regard to determining the condition of chairs. This is especially so for commercial enterprises catering to the public.

In Fontana v. Wilson World Maingate, 717 So. 2d 199 (Fla. 5th DCA 1998), Fontana, while a guest of the defendant/appellee’s hotel, sat in a chair which was defective causing it to collapse and injure her. The defendant did not deny that the chair was defective. However, at trial it argued that the case should be dismissed because there was no evidence that it knew or reasonably should have known of the defect. The trial judge agreed, leading to a directed verdict in favor of the defendant.
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June 15, 2011

“Miami Vice” Star Don Johnson Awarded $23.2 Million by Jury

by Jeffrey P. Gale, P.A.

Don Johnson, known as “Sonny Crockett” in the 1980s (84-89) blockbuster television show “Miami Vice,” was awarded $23.2 million by a Los Angeles jury. Johnson sued production company Rysher Entertainment for a share of the profits from the television series, “Nash Bridges” (1996-2001) (co-star: Cheech Marin, of Cheech & Chong fame), in which he played the role of a fictional San Francisco police detective. The award was based on profits accrued to date from the show, which is still being shown in more than 40 countries around the world.
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FLORIDA INJURY ATTORNEY BLAWG