Interestingly, these caps do not apply to claims brought under the FTCA. The first paragraph of 28 U.S.C. § 2674 makes this explicit, stating:

“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual [emphasis added] under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”

Simply put, although FTCA claims are brought against the federal government and its entities — just as claims under Florida’s Section 768.28 are brought against the state and its subdivisions — for purposes of damages, FTCA claims are treated as if they were brought against an individual rather than a government entity under 768.28.

Currently, under Florida law, individuals are not entitled to the misguided constraints of arbitrary damage caps.

Unfortunately, because Florida’s substantive law governs FTCA claims arising in the state, the FTCA does not protect all claims from the reach of every flawed or restrictive Florida law. For example, the Florida Wrongful Death Act (Fla. Stat. §§ 768.16–768.26) restricts recovery for certain survivors in medical malpractice cases, and those limitations still apply even to claims brought under the FTCA. Thus, the wrongful death of a patient resulting from medical malpractice at a VA hospital is governed by the same restrictive Florida law that applies to any other medical malpractice wrongful death case.

Florida’s sovereign immunity cap — essentially a modern echo of the old maxim that ‘the king can do no wrong’ –makes pursuing most tort claims against the state and its subdivisions virtually untenable. Very few lawyers are willing to invest the time and resources to challenge the sovereign for limited damages, knowing the state can fight with impunity, indifferent to the outcome, and effectively discourage even the thought of pursuing otherwise meritorious claims.

Thankfully, Congress chose not to shield the federal government with the same outdated liability protections that the Florida Legislature grants to state entities.*

*For administrative settlements, attorney fees are capped at 20%, while for cases that proceed to a federal court lawsuit and result in a settlement or judgment, the cap increases to 25%.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

But what about injuries that develop gradually over time — through years of physical stress or repetitive motion? Are these covered as well?

The Festa Standard

The answer is yes, provided the injured worker can establish three elements set forth in Festa v. Teleflex, Inc., 382 So. 2d 122, 124 (Fla. 1st DCA 1980):

1. Prolonged exposure,
2. A cumulative effect resulting in injury or the aggravation of a preexisting condition, and
3. A hazard greater than that to which the general public is exposed.

Subsequent cases have refined these requirements. In Rodriguez v. Frito-Lay, Inc., 600 So. 2d 1167 (Fla. 1st DCA 1992), the First District appeared to relax the “greater hazard” requirement. Meanwhile, the Florida Supreme Court in University of Florida v. Massie, 602 So. 2d 516 (Fla. 1992), held that for a preexisting condition to be compensable, it must be aggravated by a non-routine, job-related physical condition or by repeated physical trauma — signaling a limit on recovery for aggravations based solely on mental or emotional stress.

The Burden of Proof: Clear and Convincing Evidence

Repetitive trauma claims are subject to a higher evidentiary burden under section 440.02(1), Florida Statutes. The claimant must establish compensability by clear and convincing evidence, rather than the usual preponderance standard.

“Clear and convincing evidence” means evidence of such weight and character as to produce in the judge’s mind a firm belief or conviction, without hesitation, as to the truth of the allegations.

A Case Example: The Mattress Factory Worker

The first workers’ compensation case I ever took to a final hearing illustrates the Festa standard well.

My client was a woman in her 60s who spent more than 15 years constructing box-spring mattress frames in a warehouse. Her job required her to assemble and lift each frame—ranging from single to king size—onto a dolly beside her workstation. Over time, she developed severe cervical pain that forced her to retire. The employer and carrier denied her claim, arguing there was no single accident to explain her cervical disc herniations.

We filed a Festa repetitive trauma claim.

• Element (1): Prolonged exposure was easily shown by her 15-year work history.
• Element (2): Cumulative injury was established through lay and medical testimony. She denied any prior neck injuries, and her treating orthopedist opined that her job duties were the probable cause of her herniations.
• Element (3): Greater hazard was proven through both lay and expert evidence. She testified that, having once picked cotton as a young woman in the rural South, that work was difficult—but far less strenuous than her duties in the mattress factory. Her physician testified that her work exposed her to significantly greater physical demands than those faced by the general public. (We also urged the judge to take judicial notice of that fact.)

The judge ruled in our favor—finding the injury compensable and awarding Permanent Total Disability benefits under section 440.15(1), Florida Statutes.

Lessons from Experience

Since that case, we have successfully applied the Festa standard many times. While repetitive trauma claims present greater evidentiary challenges than single-incident accidents, they remain an essential avenue for justice when workplace injuries develop gradually over years of service.

Other Key Cases on Repetitive Trauma

• Houle v. Asphalt Sealing & Stripping Co., Inc., 397 So. 2d 669 (Fla. 1981) – Heavy lifting over time found consistent with claimed back injury.
• Sewell v. J.C. Penney, 569 So. 2d 1335 (Fla. 1st DCA 1990) – The court took judicial notice that the claimant’s job exposed her to greater hazards than the public.
• Johnson v. Knight, 594 So. 2d 836 (Fla. 1st DCA 1992) – Expert testimony is not always required to establish the “greater hazard” element.
• Daugherty v. Red Lobster, 550 So. 2d 171 (Fla. 1st DCA 1989) – Waitress awarded benefits for back injury caused by repetitive tray-carrying.
• Orlando Precast Products v. Ciofalo, 501 So. 2d 1326 (Fla. 1st DCA 1986) – Truck driver’s prolonged sitting, twisting, and heavy lifting met the greater hazard requirement.
• Winn-Dixie Stores v. Morgan, 533 So. 2d 783 (Fla. 1st DCA 1988) – Compensable wrist injury established where repetitive manual tasks led to trauma.

Final Thoughts

Repetitive trauma claims are not “second-class” cases under Florida’s workers’ compensation law. They demand more rigorous proof, but when properly developed, they can yield full and fair recovery for workers whose bodies have been worn down by years of honest labor.

As Festa and its progeny remind us, the absence of a single, dramatic accident does not make an injury any less real—or any less compensable.

Interestingly, in repetitive trauma cases, the statute of limitations begins to run on the date the injury becomes disabling—that is, when it results in lost wages or modified duty. We have successfully applied this principle to cases involving longstanding medical conditions that only recently, within the past two years, became disabling.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Insurance carriers have an arsenal of tools designed to execute this strategy. Examinations Under Oath (EUOs), Independent Medical Examinations (IMEs), Compulsory Medical Examinations (CME), appraisals, allegations of policy misrepresentation, and claims of “failure to cooperate” are just a few of their go-to tactics. Some of these are provided by statute, others are embedded in the fine print of policy contracts.

At its core, an insurance policy is a contract. Although statutory law governs certain rights and obligations in the insurer-insured relationship, many critical aspects are controlled by the terms of the insurance policy itself. Inevitably, disputes arise over how these provisions are applied. When negotiations fail, courts are left to sort through the rubble.

One notable battleground in this ongoing war was addressed in the Florida Supreme Court’s decision in State Farm Mutual Automobile Insurance Co. v. Curran, 135 So. 3d 1071 (Fla. 2014). The legal issue in Curran was succinctly framed as:

‘When an insured breaches a compulsory medical examination provision in an uninsured motorist contract, does the insured forfeit benefits under the contract without regard to prejudice? If prejudice must be considered, who bears the burden of pleading and proving that issue?’

Here’s what happened:

Curran, insured by State Farm, sustained catastrophic injuries in a motor vehicle accident. The at-fault driver’s insurance coverage was insufficient, so Curran sought the $100,000 in uninsured motorist (UM) benefits under her State Farm policy. She gave State Farm 30 days to tender the limits, estimating her damages at $3.5 million due to Reflex Sympathetic Dystrophy Syndrome (RSD). On the 29th day, State Farm demanded Curran submit to a Compulsory Medical Examination (CME) under the policy.

The CME request was made pursuant to the terms of the insurance policy, which provide that a claimant has the duty to

“be examined by physicians chosen and paid by us as often as we reasonably may require. A copy of the report will be sent to the person upon written request. The person or his or her legal representative if the person is dead or unable to act shall authorize us to obtain all medical reports and records.”

A different section of the policy provided that “[t]here is no right of action against [State Farm] until all terms of this policy have been met.”

Curran refused to attend the CME and instead filed suit.

At trial, the jury awarded Curran $4.65 million in damages. State Farm appealed, arguing that Curran’s failure to attend the CME constituted a material breach of a condition precedent to coverage, resulting in a forfeiture of all policy benefits, regardless of whether State Farm was prejudiced by her non-compliance.

The Fifth District Court of Appeal disagreed. The court held that although Curran breached the contract by not attending the CME, State Farm still had the burden to plead and prove prejudice resulting from that breach in order to avoid liability. Simply pointing to the breach itself was not enough.

Recognizing the public importance of the issue, Florida’s Supreme Court reviewed the decision and, in a 5-2 ruling, affirmed the Fifth DCA. The Court held that an insured’s failure to comply with a CME provision does not automatically forfeit coverage unless the insurer can demonstrate actual prejudice. Importantly, the burden to prove prejudice rests with the insurer, as part of its affirmative defense.

State Farm’s mistake? It assumed the forfeiture argument would carry the day and neglected to develop the record on prejudice. In fact, the Court noted that Curran had offered to submit to a Rule 1.360 medical examination after litigation began, but State Farm strategically deferred the examination, betting everything on its forfeiture argument. That gamble failed.

The takeaway? Curran was a landmark victory for policyholders, but it also serves as a cautionary tale. Insureds who ignore policy requirements, even minor ones, do so at their peril. The stakes in Curran were immense: either collect the $4.65 million jury verdict — to recover this amount, instead of just the $100,000 UM limit, the insured will be required to show, in a separate trial, that State Farm was in bad faith for failing to tender the $100,000 within the demanded 30 day time period. She preserved the right to do this by filing a Civil Remedy Notice — or walk away with nothing. Had State Farm done a better job of presenting prejudice evidence, the outcome could have been very different.

Rest assured, insurance companies have studied Curran carefully. In future cases, they’ll be prepared to document prejudice to enforce forfeitures. Policyholders and their attorneys must be equally vigilant in navigating these contract provisions.

*********************************************************

Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

How Much Must Be Repaid?

The reimbursement amount depends on two key factors:

1. Policy Language
2. The Source of the Settlement or Judgment

Most policies state that the insurer is entitled to full reimbursement from the insured’s recovery—often before the insured or their attorney receives anything. However, when the recovery is from a tortfeasor (the at-fault party), Florida law may limit the insurer’s rights.

Florida Statute § 768.76(4): The Governing Rule

When recovery is made from a tortfeasor, Florida Statute § 768.76(4) controls, regardless of what the insurance policy says. This was confirmed in Ingenix v. Ham, 35 So. 3d 949 (Fla. 2d DCA 2010). In that case, United Healthcare sought full reimbursement after paying most of the decedent’s medical bills. However, the court limited reimbursement based on the statutory formula in § 768.76(4), stating:

“A provider of collateral sources…shall have a right of reimbursement…if such claimant has recovered…from a tortfeasor.”

A Different Outcome: When the Statute Doesn’t Apply

In contrast, Travelers v. Boyles, 679 So. 2d 1188 (Fla. 4th DCA 1996), involved a settlement with an uninsured motorist (UM) carrier—not a tortfeasor. The court held that § 768.76(4) did not apply and allowed the health insurer to pursue full reimbursement under its policy terms. The statute wasn’t triggered because a UM carrier is not considered a tortfeasor under the law.

Importantly, the Ingenix court emphasized that the Travelers decision does not mean policy language trumps the statute when § 768.76(4) does apply.

When Both Standards Apply

In certain cases—such as auto accidents involving inadequate bodily injury (BI) coverage and a payment from an underinsured motorist (UIM) policy—both Ingenix and Travelers may apply. Reimbursement rights may then be split between the statutory formula (for the tortfeasor’s share) and policy language (for the UIM portion).

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Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Regardless of fault, injured employees may be eligible for benefits including workers’ compensation, Personal Injury Protection (PIP), and health insurance (including Medicare). Workers’ compensation and PIP are considered primary over Medicare, meaning they must pay first. If Medicare does make a payment, it typically expects to be reimbursed from any subsequent workers’ compensation or personal injury recovery.

When an injured employee is not at fault, they may seek damages through a third-party civil action against the negligent driver and, if different, the vehicle’s owner. Recovery in these cases typically comes from the tortfeasor’s and owner’s bodily injury (BI) liability insurance or, if applicable, personal assets.

In many cases, however, the at-fault party either lacks BI coverage altogether or carries insufficient limits. Florida law addresses this risk through uninsured/underinsured motorist (UM/UIM) coverage, governed by § 627.727, Florida Statutes. This optional coverage is designed to fill the gap left by the inadequacy—or absence—of BI insurance.

Per § 627.727(1), the purpose of UM/UIM coverage is:

“…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.”

The Workers’ Compensation Lien Under § 440.39

Section 440.39, Florida Statutes, grants workers’ compensation (WC) carriers an equitable lien on any judgment or settlement obtained by the injured worker from a third-party tortfeasor. This lien allows the carrier to recover benefits previously paid out, including indemnity and medical expenses.

However, critically, the WC lien does not attach to UM/UIM proceeds. Florida courts have addressed this distinction:

• Volk v. Gallopo, 585 So. 2d 1163 (Fla. 4th DCA 1991): Held that a WC carrier cannot benefit from a UM recovery due to the plain language of § 440.39(3)(a), which excludes UM recoveries from lien applicability.
• § 627.727(1), Fla. Stat.: Explicitly states that UM coverage “shall not inure directly or indirectly to the benefit of any workers’ compensation … carrier.”

When BI and UIM Coverage Coexist: Procedural Mechanics

In claims involving both BI and UIM, procedural requirements under § 627.727(6)(a)-(b) govern how settlements must be handled:

(a) Notification Requirement

If the injured party agrees to settle with the liability insurer but the settlement won’t fully satisfy their claim (thereby triggering a UIM claim), they must notify all UIM carriers by certified or registered mail. The UIM carrier then has 30 days to either:

• Authorize the settlement, or
• Preserve subrogation rights under paragraph (b).

(b) Preservation of Subrogation Rights

If the UIM carrier elects to preserve subrogation, it must:

• Pay the BI settlement amount to the injured party within 30 days.
• Thereafter, the UIM carrier may pursue subrogation against the at-fault party and their liability carrier.

This mechanism ensures the UIM carrier can protect its reimbursement rights by preventing the injured party from releasing the tortfeasor from further liability.

When UM is BI

In Metrix South v. Rose, 758 So. 2d 1259 (Fla. 4th DCA 2000), the UIM carrier refused to authorize settlement of a $100,000 BI offer and instead paid that amount directly to the claimant to preserve subrogation rights. The workers’ compensation carrier claimed a lien on the payment.

The trial court ruled that the payment constituted UM benefits, thereby exempt from the lien under § 440.39. However, the Fourth DCA reversed, holding that the payment was the equivalent of a third-party recovery, making it subject to the WC lien:

“… the trial court erred in characterizing the $100,000 payment to appellees as UM benefits and not a judgment or settlement recovered by the employee.”

This decision illustrates the complexity that arises when UM and UIM coverage functions as a stand-in for third-party BI liability, particularly in lien determinations.

Conclusion

Understanding the relationship between workers’ compensation lien rights and UM/UIM insurance is essential in motor vehicle accident cases involving injured workers. While Florida law generally prohibits WC carriers from recovering UM/UIM proceeds, exceptions exist—especially where UIM payments substitute for BI coverage through statutory subrogation mechanisms.

Practitioners must closely evaluate the structure and source of all settlements to determine lien exposure under § 440.39, and comply with § 627.727’s procedural requirements when both BI and UIM are in play.

**************************************

Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

A Medicare Set-Aside is a legal device used to make sure Medicare covers future medical expenses associated with accident-related injuries.

When Medicare began in 1966, it was the primary payor for all claims except for those covered by Workers’ Compensation, Federal Black Lung benefits, and Veteran’s Administration (VA) benefits. In 1980, Congress passed legislation to expand the exception list to include the following plans:

• Liability insurance plans (automobile, premises)
• No Fault (PIP)
• Self-Insured

All of these plans, rather than Medicare, are considered primary payors of medical expenses covered by the respective policies. In 2007, Congress passed legislation imposing reporting requirements on primary payors. The requirements, which involve furnishing Medicare with claim-related information, are laid out in section 111 of the Medicare, Medicaid, and Schip Extension Act of 2007. The purpose of the requirements is to keep Medicare from paying for medical care that is otherwise the responsibility of primary payors. Congress has decided that Medicare, which is a taxpayer-funded program, should not bear primary responsibility for medical expenses covered by insurance policies and self-insureds.

The Centers for Medicare & Medicaid Services (CMS) has issued rules for when an MSA must be used in workers’ compensation cases. The guideline is that injured workers must be eligible for Medicare or expect to be eligible within 30 months of the settlement of the workers’ compensation case.

Individuals become eligible for Medicare based on age or disability. The age for entitlement is 65, while individuals under 65 become eligible after they have been qualified to receive Social Security Disability Income (SSDI) benefits for 24 months. Many people injured in accidents apply for SSDI, implicating MSA issues.

CMS has not issued guidelines for personal injury cases. However, as the reporting language and other requirements do not distinguish between workers’ compensation and personal injury cases, it is reasonable to conclude that the MSA law applies equally to both.

An MSA designates portions of the proceeds of a settlement to pay for future accident-related medical expenses. Typically, the set-aside amount is determined by experts employed by the parties — in workers’ compensation cases, the expense is always covered by the carriers — based on medical conditions and anticipated needs. In many instances, CMS will review the proposed set-aside amount to determine adequacy. It has the option of approving the proposed amount or requiring more. On rare occasions, it will even require a lower amount. To avoid future issues, it is always better to get CMS’s approval. However, CMS will only review WCMSA proposals that meet the following criteria:

• The claimant is a Medicare beneficiary and the total settlement amount is greater than $25,000.00; or
• The claimant has a reasonable expectation of Medicare enrollment within 30 months of the settlement date and the anticipated total settlement amount for future medical expenses and disability/lost wages over the life or duration of the settlement agreement is expected to be greater than $250,000.00

Medicare Set-Asides are not mandatory. No law is violated for not using one. However, if one isn’t used where the injured person is eligible for Medicare or expects to be eligible within 30 months of the settlement, Medicare will require that 100% of the settlement money be used to pay for accident-related medical services before it will begin to cover any accident-related medical expenses. (Even without an MSA, Medicare will continue to cover the medical expenses of care unrelated to the accident.)

With an MSA, especially one that has been pre-approved by CMS, Medicare will become the primary payor once the MSA money is exhausted. However, CMS places the burden on the Medicare recipient to prove the money was exhausted appropriately. Because the paperwork is onerous and exacting, it may be advisable to use a company to administer the MSA. A number of companies offer the service at a reasonable rate — $1,000 for one we did recently.

An MSA can also be self-administered. Because of the difficulty in administering the MSA and the consequences of failing to do so correctly, we have our clients who choose this route sign a document acknowledging the risks and their duties and responsibilities.

The need for an MSA can make it more difficult to settle a case. Except to pay for medical care, a portion of the settlement proceeds is beyond the reach of the injured party. Some of our clients decide to use the MSA-earmarked money on unrelated expenses. Where, after thoughtful consideration, it is decided that the medical needs for the accident-related injuries will be nominal, this can be a safe option.

There is no reason to believe that MSAs are not a necessary tool in personal injury cases. It may be time to start treating them like they are.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

There are two types of temporary indemnity benefits, Temporary Total Disability (TTD) and Temporary Partial Disability (TPD). Section 440.15(2)(a) describes TTD as being a “disability total in quality but temporary in quality….,” while TPD, described in section 440.15(4)(a), is the monetary benefit paid when the person’s disability is less than total, meaning the injured employee is capable of performing some type of physical work activity.

TTD is paid at 2/3 of the injured employee’s average weekly wage (AWW), while TPD is “80 percent of the difference between 80 percent of the employee’s average weekly wage and the salary, wages, and other remuneration the employee is able to earn postinjury….” For example, if AWW is $1,000, the TTD and TPD payments are $666.70 and $640.00, respectively. The good news is that workers’ compensation indemnity benefits are not taxable.

Temporary indemnity benefits end once the injured employee is placed at maximum medical improvement (MMI), defined in 440.02(10) as follows: “‘Date of maximum medical improvement’ means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” (Temporary benefits also end as a matter of law after 260 weeks of payments. Typically, MMI is reached well before 260 weeks, or 5 years, of temporary payments are made.)

Fights often ensue over disability status, partial and total, and MMI. Because the insurance carriers get to select the treating doctors, those handpicked doctors typically offer opinions in these areas, among others, that are helpful to the carriers. While there are ways to fight back, the options are limited by the system’s decided slant in favor of employers and carriers on most points.

Once MMI is reached, injured employees may be entitled to two types of monetary benefits: Permanent Impairment Benefits (PI)(440.15(3)) and Permanent Total Disability Benefits (PTD)(440.15(1)).

Permanent Impairment benefits are payable after MMI where the employee is left with a permanent impairment rating. “Permanent impairment” is defined in 440.02(31) as: “any anatomic or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury.” The impairment rating is determined in accordance with the Florida Impairment Guide. The amount payable is based on a formula contained in the statute. Typically, it is a small amount of money for a short period of time. Not every injured worker is assigned a permanent impairment rating.

PTD pays more over a longer period of time. Except in cases with catastrophic injuries, it can be difficult to qualify for PTD. In most cases, the entitlement to PTD ceases when the employee reaches age 75.

There are two statutorily defined ways to qualify for PTD benefits. The first is by sustaining one or more of these presumptively qualifying injuries:

1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

3. Severe brain or closed-head injury as evidenced by:
a. Severe sensory or motor disturbances;
b. Severe communication disturbances;
c. Severe complex integrated disturbances of cerebral function;
d. Severe episodic neurological disorders; or
e. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.;

4. Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands; or
5. Total or industrial blindness.

“In all other cases, in order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” Section 440.15(1)(b).

It wasn’t always this tough to qualify for PTD.

When our law firm first began handling workers’ compensation cases, the listed injuries, like now, were an option, however, the alternative method of qualifying was decidedly friendlier to injured workers than the current standard. Until 1994, a claimant would qualify for PTD by demonstrating an inability to perform “light duty work uninterruptedly.” The current capacity is sedentary duty, which is harder for claimants to overcome than the light duty standard. The particulars of the various standards are outlined in section 404.1567 of the Code of Federal Regulations:

(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

(c) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.

(d) Heavy work. Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.

(e) Very heavy work. Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light and sedentary work.

Simply put, an individual is not PTD under current law if he or she can at least perform sedentary work. Before 1994, the standard was light duty. Social Security Disability (SSD), the Florida Retirement System, and most private disability insurance policies adhere to the light duty standard.

In 1994, the Florida Legislature replaced the light duty standard with a formula mirroring the Social Security Disability (SSD) system. Moreover, those who qualified for SSD from their work-related injuries, were presumptively considered PTD under the workers’ compensation system.

This standard was viewed by then-Florida Governor Jeb Bush and his corporate constituents as being too easy for claimants. Hence, in 2003, the Republican-controlled Florida Legislature amended the standard once again, replacing the SSD formula with having to demonstrate the inability to perform part-time sedentary employment within a 50-mile radius of the employee’s residence.

The legislation proved so unreasonable that it was revisited a few years later. The result is our current law, which does not include the “part-time” element. Because a part-time job may be 20 hours or less a week compared to a 40-hour full-time workweek, the difference is substantial.

Even still, today’s PTD standard is hard to reach. Very few injured workers are given permanent restrictions by their workers’ compensation authorized doctors that fall below the sedentary duty threshold.

However, all is not lost.

Eligibility for PTD benefits is also achievable by establishing (1) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search, or (2) permanent work-related physical restrictions that, while not alone totally disabling, preclude a claimant from engaging in at least sedentary employment when combined with vocational factors. Section 440.15(1)(b), Fla. Stat. (2011); Blake v. Merck & Company, 43 So.3d 882 (Fla. 1st DCA 2010).

In assessing a workers’ compensation claimant’s entitlement to permanent total disability (PTD) benefits, factors such as claimant’s actual physical impairment, work history, education and training, ability to do and obtain other work, and age may be considered. Section 440.15(1)(b), Fla. Stat. (2011); Shaw v. Publix Supermarkets, Inc., 609 So.2d 683 (Fla. 1st DCA 1992). Even if the Claimant’s physical limitations alone do not preclude him from engaging in sedentary work, the combination of his physical limitations and vocational abilities render him permanently and totally disabled. Ferrell Gas v. Childers, 982 So.2d 36 (Fla. 1st DCA 2008) Other factors that can come into play include:

• difficulty sleeping at night due to accident-related pain.
• frequent breaks at work, sometimes to the point of having to lie down, to relieve accident-related pain.
• medications causing drowsiness and decreased mental acuity.

The more of this type of evidence that can be presented to the JCC, who is the trier of fact, the better. Few employers are willing to accommodate employees against those who are more able-bodied. Vocational experts can explain these things to the JCC, who already knows them by experience and intuition, but must have the record evidence to support any final decision.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Under section 440.13(1)(e), Florida Statutes, “emergency services and care” is defined by its reference to section 395.002, Florida Statutes (2024), as follows:

(9) “Emergency services and care” means medical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists and, if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility.

An “emergency medical condition,” as defined in section 395.002(8)(a), Florida Statutes (2024), means:

(8) “Emergency medical condition” means:

(a) A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:
1. Serious jeopardy to patient health, including a pregnant woman or fetus.
2. Serious impairment to bodily functions.
3. Serious dysfunction of any bodily organ or part.

The provision of “Emergency services and care” is an exception to the rule allowing employers and their workers’ compensation insurance carriers (E/C) to choose the medical providers and pre-approve medical care. For example, in cases involving serious injuries where surgery is performed, it is not uncommon for the emergency room surgeon to become the authorized provider for future care. The doctor may not have a relationship with the E/C or even be familiar with the workers’ compensation system. Once authorized, providers only become deauthorized by agreement of the parties or by court order based on a failure to furnish care meeting community standards. more

In addition, doctors who furnish “Emergency services and care” are considered authorized treating providers under section 440.13(5)(e), Florida Statutes (2024), allowing them to offer opinion testimony in workers’ compensation proceedings. This was explained in Cespedes v. Yellow Transport, Inc., 130 So. 3d 243, 253 (Fla. 1st DCA 2013):

‘Thus, based on a reasonable and harmonious reading of the statutory provisions, we conclude that where the admissible medical and lay testimony establishes that a physician has provided compensable emergency medical services, that physician’s medical opinion testimony is admissible as an “authorized treating provider” under section 440.13(5)(e).’

To get paid, healthcare providers who render emergency care must notify the carrier by the close of the third business day after the care has been rendered. See Section 440.13(3)(b). The failure of a healthcare provider to meet this deadline does not disqualify the physician from testifying. Interestingly, a provider denied payment for missing the deadline cannot seek payment from the injured worker. Attempting to seek payment might violate one or more sections of Florida Statute 559.72.

Notice timeliness alone is not enough for the provider to get paid. These additional factors are required:

• The medical services and care were “emergency medical services and care.”
• The injury arose out of work performed in the course and the scope of employment.
• The accident is the major contributing cause of the injuries, with “major contributing cause” meaning the cause that is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought. Section 440.09(1).

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the

Nowadays, active tortfeasors can be released from cases, even before a lawsuit is brought, without sacrificing the case against the passive tortfeasors. It wasn’t always this way in Florida.

Common law used to reason that settling with the active tortfeasor discharged the liability of the passive tortfeasor. “At common law and before the enactment of statutes to the contrary, a release of one joint tortfeasor released the other, Louisville & N.R.R. v. Allen, 67 Fla. 257, 65 So. 8 (1914).” Safecare Health Corp. v. Rimer, 620 So. 2d 161, 164 (Fla. 1993)(McDonald, J. dissenting).

In modern times, at least, the Florida Legislature has, for the most part, not been friendly to Plaintiffs. It has crafted statutes making it harder to gain access to the courthouse and to obtain just compensation for serious injuries once inside. An exception to this history concerns statutory changes that paved the way to the present state of the law regarding settlements with active tortfeasors.

The first statutory change was enacted in 1957. It provided that

A release or covenant not to sue as to one tort-feasor for property damage to, personal injury of, or the wrongful death of any person shall not operate to release or discharge the liability of any other tort-feasor who may be liable for the same tort or death.

In Hertz Corp. v Hellens, 140 So. 2d 73 (Fla. 2d DCA 1962), the court interpreted the statute as applying “to all tort-feasors, whether joint or several, including vicarious tortfeasors.”

Subsequent Florida statutes — 46.015, 768.041, and 768.31 — and case law — e.g., Stephen Bodzo Realty, Inc. v. Willits International Corp., 428 So. 2d 225 (Fla. 1983), Florida TomatoPackers, Inc. v. Wilson, 296 So. 2d 536, 538 (Fla. 3d DCA 1974), JFK Medical Center, Inc. v. Price, 647 So. 2d 833 (Fla. 1994), Crosby v. Jones, 705 So. 2d 1356, (Fla. 1998) — have brought us to the present state where it is safe to settle with, and dismiss, actively liable tortfeasors. However, while this may be true, caution must still be exercised with the settlement release.

First and foremost, avoid any language that could be construed as releasing other defendants, including vicariously liable tortfeasors. As further protection, add language to the release making it clear that it does not apply to any other defendants including but not limited to vicariously liable defendants.

Advantages of settling with the active tortfeasor include gaining access to funds and, in some instances, getting the active tortfeasor to feel friendlier to the plaintiff’s side.

Another landmine to avoid is a general release of insurance carriers. It is not unusual for the same carrier to insure more than one defendant either on a different policy or on the same policy, or even the plaintiff’s personal UM or PIP policy with coverage responsibility in the case. Giving a general release without clarifying that the release is only in the carrier’s capacity as the liability insurer for the active tortfeasor, might result in the loss of important funding sources.

Also, be careful of indemnification and hold harmless provisions in releases. Passive defendants have the right to recover from active tortfeasors for payments they have made as a result of their vicarious liability. An agreement to indemnify the settling tortfeasor for such a claim would effectively mean that the plaintiff must give the active defendant the money it got from the vicarious defendant. Here’s how that would work: Plaintiff receives X dollars from vicarious Defendant A. Vicarious Defendant A then pursues an indemnity claim against active Defendant B. Active Defendant B then demands from Plaintiff, under the indemnity provision of the release, the money it paid to Defendant A.

Needless to say, this scenario can be problematic, even a deal breaker.

Indemnification and hold harmless provisions can also involve liens held by entities such as Medicare, Medicaid, and health insurance carriers. Typically, such entities are entitled by law or contract to recover from third-party settlements some or all of the benefits they have paid on behalf of the plaintiff. In some instances, they can even go after defendants who have failed to protect their lien rights.

For the most part, since repayment amounts on these liens can be determined or resolved before or in connection with settlement or verdict, these provisions are not problematic.

Finally, avoid the pitfall experienced in Connecticut General Life Ins. Co. v Dyess, 569 So. 2d 1293 (Fla. 5th DCA 1999). A settling plaintiff lost out on first party insurance benefits by failing to include language in the release that the settlement did not cover all of his damages.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Presently, they rule by supermajority in the Legislature, meaning they don’t have to negotiate with members of other parties to pass legislation. With the encouragement of current governor Ron DeSantis, they have been wont to stoke the flames of culture wars by enacting draconian laws such as those banning books and hurting the LGBTQ community.

While their culture war laws get the headlines, Republicans also work in quieter ways to undermine the fabric of American society. One of their favorite tricks is to weaken the rights of individuals to seek redress within the legal system.

Last legislative session they passed bills reducing the statute of limitations in personal injury cases from four years to two years and barring all personal injury claims where the injured party is more than 50% at fault, even just 51% (768.81(6)).

This latter measure may appear reasonable on its face to the uninitiated, but it is not. In years past damage awards were apportioned by percentage of fault through a legal principle known as comparative fault. For example, if a person who was 51% at fault was awarded $1,000,000 in damages by a jury, the court would reduce that person’s share of the award to $490,000. Under the legislation passed in 2023, that same person would walk away with nothing even if another party was 49% at fault.

During this year’s legislative session, which is currently underway, Republicans are seeking to establish arbitrary damage caps in medical malpractice cases. Regardless of what a jury may decide a case is worth after receiving and deliberating the evidence, judges will be forced to reduce verdicts exceeding the cap. The proposed legislation is CS/SB 248: Medical Negligence.

It matters not to this crop of Republican legislators that a similar damage cap statute was ruled unconstitutional in the past by the Florida Supreme Court. Cynically, they are expecting the current Florida Supreme Court, made up mostly of Rick Scott and Ron DeSantis nominees, to ignore precedent and uphold the new legislation. Sadly, they have a recent example to go by to believe that a Republican majority court will reverse the decision of its predecessor members. The example is Dobbs v. Jackson Women’s Health Organization, the 2022 United States Supreme Court abortion decision which overruled 50 years of precedent.

McCall v. United States of America, 134 So. 3d 894 (Fla. 2014), was a case involving a military veteran whose death was caused by medical negligence. The jury’s award was reduced to comply with the damage caps. The Florida Supreme Court decided that the damage caps were unconstitutional.

Then, as now, the Florida Legislature attempted to justify the cap on noneconomic damages by claiming that “Florida is in the midst of a medical malpractice insurance crisis of unprecedented magnitude.” Ch.2003-416, § 1, Laws of Fla., at 4035.

As explained by the court majority, “the Legislature relied heavily on a report prepared by the Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force), which concluded that ‘actual and potential jury awards of noneconomic damages (such as pain and suffering) are a key factor (perhaps the most important factor) behind the unavailability and un-affordability of medical malpractice insurance in Florida.’ Report of Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force Report) (Jan. 29, 2003), at xvii.” McCall at 906.

Problem is, the Task Force Report did not hold water. As Justice Lewis explains:

Our consideration of the factors and circumstances involved demonstrates that the conclusions reached by the Florida Legislature as to the existence of a medical malpractice crisis are not fully supported by available data. Instead, the alleged interest of health care being unavailable is completely undermined by authoritative government reports. Those government reports have indicated that the numbers of physicians in both metropolitan and non-metropolitan areas have increased. For example, in a 2003 report, the United States General Accounting Office found that from 1991 to 2001, Florida’s physician supply per 100,000 people grew from 214 to 237 in metropolitan areas and from 98 to 117 in nonmetropolitan areas, or percentage increases of 10.7 and 19, respectively. Physician Workforce: Physician Supply Increased in Metropolitan and Nonmetropolitan Areas but Geographic Disparities Persisted, No. GAO-04-124, (Oct. 31, 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf. Thus, during this purported crisis, the numbers of physicians in Florida were actually increasing, not decreasing.

Proponents of the legislation now on the table don’t even claim to have a study supporting their position. Despite rationale arguments against the legislation and a stream of sworn testimony from medical malpractice victims, Republicans seem determined to enact the legislation. With super-majorities in both Chambers, and the support of Governor Ron DeSantis, nothing can stop them.

Groups like the Florida Justice Association have gone to the mats fighting the legislation. Florida residents can contact their representatives in Tallahassee to express dispeasure. Follow these links for politician contact information:

• House: https://www.myfloridahouse.gov/representatives
• Senate: https://m.flsenate.gov/senators/list
• Governor: https://www.flgov.com/email-the-governor/

While not perfect, the jury system is the best apparatus for resolving disputed civil matters. Strict rules of evidence and sensible guidelines in the form of jury instructions, typically lead to the correct result. Appellate courts are there to scrutinize the process and the results. It’s a beautiful thing. The system does not need arbitrary damage caps, set by politicians sitting in Tallahassee sometimes wrongly influenced by self-interested powerful forces, to subvert the collective wisdom of “We the People.”

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

DUTY: “Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” See Kaisner v Kolb, 543 So.2d 732, 735 (Fla. 1989) (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla. 1983)).

PROXIMATE CAUSE: “The proximate causation element, on the other hand, is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” McCain v. Florida Power Corporation, 593 So.2d 500, 502 (Fla. 1992).

While the concept of foreseeability can be relevant to both elements, the concept “relates to duty and proximate causation in different ways and to different ends.” Id. at 502. Hence, merging the two elements into a single hybrid foreseeability analysis would be incorrect.

Duty is the key that opens the courthouse doors. It is the job of the judge, rather than the jury, to decide if it exists. For this reason, establishing duty is considered a matter of law vs a question of fact. (On this issue in McCain, in footnote 1 the court does note that “to determine this legal question the court must make some inquiry into the factual allegations. The objective, however, is not to resolve the issues of comparative negligence or other specific factual matters relevant to proximate causation, but to determine whether a foreseeable, general zone of risk was created by the defendant’s conduct.”) Once the duty is established, the plaintiff may proceed to prove fault and damages, which are proximate cause factual questions decided by juries turning on the question of foreseeability. “In this context, foreseeability is concerned with the specific, narrow factual details of the case, not with the broader zone of risk the defendant created.” Id at 502-503.

In McCain, the plaintiff was injured when the blades of a mechanical trencher he was operating struck an underground cable owned by Florida Power Corporation (FPC). Before the work commenced, FPC went to the site to mark the location of its underground cables. Plaintiff alleged that the accident happened in an area marked “safe.”

The trial judge decided that FPC owed plaintiff a duty and allowed the case to proceed to trial. The jury rendered a verdict for plaintiff and awarded damages. The Second District Court of Appeal threw out the verdict. The Florida Supreme Court then reversed the Second DCA, noting that the lower court’s analysis was unclear since it opined “that the question of foreseeability is for the trier of fact,” id. at 1271 (citing Crislip v. Holland, 401 So.2d 1115 (Fla. 4th DCA), review denied, 411 So.2d 380 (Fla. 1981)), while also contradictorily concluding that no duty existed as a matter of law because the specific injury suffered by McCain was not foreseeable.

In other words, the Second DCA merged the two elements — duty and proximate cause — into a single hybrid “foreseeability” analysis.

The Supreme Court pointed out that “the district court below erred in that it confused the duty and proximate causation elements, resulting in a mistaken assumption that Florida Power’s duty was to foresee the specific sequence of events that led to McCain’s injury, in light of the precautionary measures the company already had taken. See McCain, 555 So.2d at 1272 (Threadgill, J., dissenting).” Id at 504. This led to the district court deciding a factual question that should have been left to the jury. The proper inquiry was for the reviewing appellate court to determine “whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred.” McCain at 504.

On this point, the Supreme Court decided that, as a matter of law, FPC owed the plaintiff a duty:

Here, there can be no question but that Florida Power had the ability to foresee a zone of risk. By its very nature, power-generating equipment creates a zone of risk that encompasses all persons who foreseeably may come in contact with that equipment. The extensive precautionary measures taken by Florida Power show that it understood or should have understood the extent of the risk involved. The very fact that Florida Power marked the property for McCain itself recognizes that McCain would be within a zone of risk while operating the trencher. Id at 504.

********************

Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

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).

Since workers’ compensation is a creature of statute — see Chapter 440 — it has been the role of the Florida Legislature to decide how mental and nervous injuries will be handled in workers’ compensation cases. The general rule regarding these injuries is addressed in Florida Statute 440.093. The statute mirrors the Impact Rule.

The sole exceptions to the Impact Rule in workers’ compensation cases are contained in sections 112.1815(2)(a)3 and (5) of the Florida Statutes. The exceptions apply exclusively to firefighters, paramedics, emergency medical technicians, and law enforcement officers, defined in subsection (1) as “first responders.” All other injured workers are subject to 440.093.

Generally, workers injured on the job are eligible for medical and indemnity benefits. While 440.093 precludes both for a mental or nervous injury due to stress, fright, or excitement only, the exception in section 112.1815(2)(a)3 allows for medical benefits. The exception does not allow for indemnity benefits.

Interestingly, 112.1815(5) allows first responders to recover both medical and indemnity benefits for posttraumatic stress disorder (PTSD) if caused by particularized circumstances listed in the statute.

The Impact Rule may seem unfair. Some people legitimately experience mental and nervous issues from little to no physical trauma. However, the reasoning behind the rule is sound: the requirement of a physical impact gives courts a guarantee that an injury to a plaintiff is genuine. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 363 (5th ed. 1984).

*********************

Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.