Obtaining up to 52 weeks of Rehabilitative TPD with the advent of the Westphal case is much easier now. This means the injured worker can receive up to 52 weeks of rehabilitative temporary partial disability (TPD) where they have a high school education or an GED and cannot return to the same line of work. This also applies when your prior job is not available or the work is not within your restrictions. In that event, the injured worker should apply using the attached form for rehabilitative TPD benefits. The Judge cannot deny the first 26 weeks of benefits and with a high average weekly wage this can result in significant compensation benefits for the injured worker. The goal of course is to help the injured worker find a better job. Many clients can look to obtain a higher settlement in the lump sum settlement because they will release rehabilitative TPD benefits. This firm specializes in obtaining those benefits and settlements. Since 1984 we have been known in the industry for LUMP SUM SETTLEMENTS.
When we are on the road as drivers or walk alongside the road as pedestrians, we are aware of the potential danger posed by the vehicles in our surroundings. When we enter a building, those thought processes cease as we come to expect a feeling of safety from being inside a structure. The thought of a car crashing into your home, your workplace or a commercial storefront you are visiting is just unthinkable, and if you are a homeowner with a family, it’s a nightmare. We wish we could say that Vehicle-Into-Building Accidents are the fiction of Hollywood action movies, but they are – unfortunately – real collisions and are types of cases that we handle frequently at our law office.
The news headlines in South Florida this past week seemed to be reporting car crashes into buildings more frequently than we usually hear about it. On Friday morning, a car crashed into a Post Office in Plantation, and on Tuesday and Sunday cars crashed into residences in Miami-Dade and Broward Counties.
Although the incidents seem the same, there are varying causes of these types of collisions. In some instances, the driver is under the influence or is not being attentive and the crash is due to his or her negligence. In other cases, there are product malfunctions with the car or in the urban planning that places a residence near a high-speed ramp for example. For homes and businesses alongside the road, some vehicle-into-building crashes are the result of an initial vehicle-to-vehicle collision that sends one or more cars spinning off into the nearby building.
The recent Caterpillar Logistics, reversed a judgment awarded in the Miami Court, and discussed the factors that would allow a person to recover damages where they are fired in retaliation for filing a workers compensation claim. Our firm follows these lawsuits closely.
Juries are generally fairly liberal in awarding damages on these cases as they relate to the upset of being fired. The problem in this case was that the injured worker continued on a no work status due to his physical injuries and therefore, since there was no evidence that the injured worker would recover to the point that he could return to substantial/equivalent employment, therefore the retaliation was not the cause of his future lost wages. “In summary, the jury’s award of back pay and front pay are not sustainable because Amaya was unable to work due to his on the job physical injuries.” Those damages were compensable through his workers compensation case. Had the injured worker been cleared for work after being placed on a no work status due to his physical injuries and if he was unable to work due to his emotional injury then he could have been awarded the money for lost wages and loss of earning capacity. The jury has to award money for emotional distress and mental anguish. Based on these factors, the Appellate Court reversed the half million dollar judgment for the injured worker in Caterpillar Logistics Services, Inc. vs. Rudolf Amaya 3rd Dis. Ct of Appeals decided July 13, 2016.
I just returned from London, England where I had my client sign her release. There was a notary requirement on the original release, but in London, a notary charges £100 pounds, which is equivalent today to $130.00.
To save my client that money, we spoke with the supervisor at the insurance company and received approval for her signature to be witnessed by two people in London, which was done instead of having a notary. This saved the client $130.00 and we did not charge the client for our travel expenses, as we frequently do business in London.
We receive calls from all over the United States from people injured while providing services to our troops stationed throughout the world. Their injuries are covered under the Defense Base Act, which is a Federal Statute, providing workers compensation benefits.
The Florida Supreme Court on June 9, 2016 in the case of Westphal v. City of St. Petersburg, Case No. SC13-1976 declared Florida Statute 440.15(2)(a) unconstitutional. That provision sought to limit disability (lost wage) benefits to an injured worker to only 104 weeks, even though the worker was on a no work status or disabled after the 104 weeks.
The Florida Supreme Court concluded that provision was unconstitutional based on a denial of right of access to the Courts. The Florida Supreme Court said that the injured worker could have 5 years or 525 weeks to receive benefits for lost wages based on an earlier constitutional statute. Those weeks do not have to be sequential.
What this means for the injured worker, is that, the Florida Supreme is finding provisions of the workers compensation law so onerous that those provisions violate the constitutional rights of the injured worker. When this happens, the prior constitutional provision of the workers compensation law becomes applicable.
In Miles vs. City of Edgewater Police, 1D15-0165 the First District Court of Appeal declared Florida Statutes 440.105(3)(c) and 440.34 unconstitutional because they infringe on the Claimant’s right to contract to pay attorney’s fees from their own funds for litigating a workers compensation claim. Any contract for fees for representing an injured person must like all fees for Florida attorneys comply with the factors set forth in Lee Engineering, 209 So.2d. 454, 458 (Fla. 1968) and the Florida Bar Rule 4-1.5(b). In Miles, the 1st DCA stated “we hold that no attorney accepting fees, per such a fee contract in this situation may be prosecuted under 440.105(3)(c) Fla. Stat. The right of the Claimant to contract is known as a civil liberty possessed by all persons and is within the rights guaranteed by the Constitution.”
Are ex parte communications between a nurse case manager and a physician permissible? The answer to this question truly depends on whether the nurse case manager is a qualified rehabilitative provider performing a reemployment assessment or if the nurse case manager is solely retained to perform medical care coordination services. If the nurse case manager is a “qualified rehabilitation provider” and retained to perform a re-employment assessment, then ex parte communications are appropriate and allowable pursuant to Florida Statue 440.13(4)(c). Conversely, if the nurse case manager is retained by the employer or the carrier for the sole purpose of medical care coordination, ex parte communications are impermissible and a violation of the statute. It is important to note that just because the nurse case manger is deemed a “qualified rehabilitation provider” that does not, in and of itself, permit ex parte communications between she and the physician.
While Florida Statute 440.13 (4)(c), allows the employer and or the carrier to have ex parte communications with the physicians, this statute does not extend to third parties or a qualified rehabilitation provider who is not performing a reemployment assessment.
If you have been assigned a nurse case manager, it is important to understand her role. If you are unsure, please do not hesitate to contact our office as we would be more than happy to speak with you.
On 4-28-16, the Florida Supreme Court in the case of Castellanos v Next Door Company SC 13-2082 declared Florida Statute 440.34 unconstitutional because it violated the Constitutional due process right to the courts for the injured workers. The constitutional violation was based on the failure of that statute to allow claimants’ attorneys to obtain a reasonable attorney fee for litigating and obtaining benefits under the Florida Workers Compensation Act. This is a victory for the injured workers as their attorneys can now receive reasonable compensation for obtaining needed benefits for the injured workers.
This firm has always been dedicated to protect the rights of the injured person. Angel Kirkconnell at this firm has litigated tirelessly to help the injured worker. Now with the advent the ability of attorneys to get paid, this firm can give meaningful help to achieve benefits for those injured in the line of work.
An important decision regarding a business’ duty to prevent over serving has been released by the 4th District Court of Appeal in the case of Stephanie De La Torre, Humberto Miranda and Carla Gallardo, Appellants, vs. Flanigan’s Enterprises, Inc d/b/a Flanigan’s Bar and Grill.
In this decision, the Plaintiffs, Stephanie De La Torre, Humberto Miranda and Carla Gallardo, were injured when their vehicle was hit by a drunk driver. The injured persons filed a complaint against Flanigan’s, which owns and operates the restaurant at which the drunk driver had been drinking at prior to the accident.
The trial court dismissed the complaint, finding that section 768.125, Florida Statutes (2011), protects businesses such as Flanigan’s from any liability for injuries caused by intoxicated patrons, as long as certain conditions are met.
The facts of this case, are unfortunately, not uncommon. The Defendant went to the restaurant, Flanigan’s, on the night of December 2, 2011. While there, the Defendant was over served by employees of Flanigan’s. The Defendant became intoxicated and the employees of Flanigan’s tried to sober the Defendant up. Later on, the Defendant left the restaurant in her own vehicle, and while on her way home, crossed into oncoming traffic, and struck the Plaintiffs’ vehicle.
An important part of this case, is the fact that Flanigan’s maintained internal policy designed to prevent drunk patrons from driving away from the business, by in effect taking the car keys away from the intoxicated patrons and insuring that the drunk patron left in either a taxi or with a sober driver. Continue reading
As we know, the law requires that a medical benefit which includes, but is not limited to, the treatment, a device or an aid be medically necessary. In order to award that benefit, the test is whether it is medically necessary. A Judge of Compensation Claims may award only those medical benefits that are medically necessary. It is important to understand the distinction between a medically necessary benefit and those that are merely pleasant or convenient. Simple convenience will not suffice nor would a benefit that would neither improve nor aid in recovery be considered medically necessary. Continue reading