Personal Injury Law

THE 20(a) PRESUMPTION:  THE INJURED WORKERS’ BEST FRIEND

By Michael Wilkes, Attorney, Znosko & Reas, P.A.

If you are an injured worker who has a claim under the Longshore and Harbor Workers’ Compensation Act or the Defense Base Act you have  a best friend helping you  with your claim,  a presumption that assists you with various aspects of your claim.  Under 33 U.S. C. 920 (a), there is a presumption (commonly known to practitioners in the field as the 20(a) presumption) that helps you prove that your  injury is causally related to an industrial accident or conditions related to your employment.    In these circumstances, the injured worker need only show a prima facie, or some credible evidence,  that he has suffered a harm or injury and that said harm or injury could have occurred at work.  Once this basic case is made, the burden of proof then shifts to the Employer/Carrier to prove by substantial evidence  that the injured workers’  injury could not have occurred at work.  If they are able to do so, then the presumption is rebutted and the judge will need to decide the case without the benefit of any presumption.  This  means at that point the injured worker will again have  the burden of proof to show that his medical condition or injury is related to an accident or conditions at work but this time he must prove it by a preponderance or the majority of the evidence.   Obviously, this is a much tougher standard for the injured worker to meet.

Some cases are very difficult to prove without the 20(a) presumption.  For example, let’s say you were working for a defense contractor overseas in Iraq when you developed a very serious and unusual neurologic condition that the doctors ultimately determine was consistent with your exposure to some environmental element present in that country.  The doctors are not able to say that you developed this condition due to your time in Iraq and your exposure to that environmental element,  but they are willing to say that you could have developed that condition as a result of that exposure.  This would trigger the 20(a) presumption and put the burden on the Employer/Carrier to prove other causes for the condition or that you could not have developed that condition as a result of that exposure.  As you can see, this would be a case that would be very difficult to prove without the 20(a) presumption. 

Please note that the 20(a) presumption does not help to prove that an accident  occurred.  It simply helps the injured worker prove the necessary link between an industrial accident or conditions of employment and the injury or medical condition which is an important element of any injured workers’ case.  It, therefore, truly can be the injured workers’ best friend.

It Had a Bone in It!  By Amy Rosenfelt

I am at dinner the other night, waited 45 minutes to finally be seated….not upset because I enjoy this restaurant and feel it is worth the wait. As usual, I order my favorite boneless Hawaiian grilled chicken with vegetables. As I sink my teeth into a piece of chicken, I hear an unusually loud CRUNCH. I immediately find myself in pain and really grossed out. Unbeknownst to me, the boneless grilled chicken had a bone inside.

What can I do?  As you can imagine, this is quite common. In fact, many jurisdictions in the United States permit the injured patron to recover. However, before any recovery is permitted, a legal hurdle must be passed. Specifically, many jurisdictions will allow recovery if the harmful substance in the food is foreign to the food. This test is commonly known as the “foreign-natural” test. Under the “foreign-natural” test, if the substance is natural to the food recovery for injuries is not permitted.

In Florida, the “foreign-natural” test is not followed. Nevertheless, one may still recover for injuries caused by harmful substances in food as long as a different hurdle is passed. This hurdle is called the “reasonable expectation” test. In other words, was it reasonable to anticipate the item to be in the dish? According to a Florida court decision, the harmful substances found in a food “must be based on what the consumer might reasonably expect to find in the food as served.” Thus, this test differs from the “foreign-natural” test because while one may anticipate chicken bones in chicken, the expectation may be different when one orders a boneless grilled chicken dish, like me. As such, you may be able to recover for damages in Florida. 

The Most Common Complaints About Attorneys 

By: Amy Rosenfelt

By far the number one complaint I hear expressed by new clients about their former attorneys is that they never returned their calls, and in some instances, never met with or even spoke with them over the telephone. I know plenty of attorneys who make it almost impossible for their clients to reach them. They simply work away in their protected little bubbles expecting their clients to simply trust that they’re working hard for them. Here at Znosko & Reas we always want our clients to know how hard we’re working for them. Regular communication with our clients is an extremely important part of our practice.

The attorney’s job here at Znosko & Reas is to lay all the cards on the table for our clients and to talk through all the strengths and weaknesses of the case with our clients to help our clients make the best, most-informed decision they can. Every client is different, and some clients are more risk adverse than others. A common practice among our attorney’s when it is time for me to discuss potential settlements and or trial possibilities is to pretend that the client is a relative. What would I tell my mom or my nana to do in this situation? At the end of the day, the client is the boss, and we will follow that clients instructions. We do want to make sure that we have properly and thoroughly counseled our client, after all that’s why they hire Znosko & Reas in the first place. 

By: Amy Rosenfelt

Filing a successful lawsuit against a negligent party is often difficult, even if the facts of the case seem obvious. The plaintiff must show that a preponderance of the evidence supports his or her claim. To win the case, the plaintiff must show that:

• The defendant had a duty to minimize risk to others.
• The defendant failed to meet that duty.
• The plaintiff suffered a significant injury.
• The defendant’s actions caused that injury.

Have you suffered from personal injury in Orlando? Then the assistance of a knowledgeable Orlando personal injury attorney is a vital asset when you are trying to build a strong legal case. Znosko & Reas can inform you of your rights, explain the legal system, and help you choose the best legal options.  Please contact our office at 407-786-2900.

By: Michael Wilkes, Attorney, Znosko & Reas, P.A.

WHAT IS A MEDICARE SET ASIDE AND WHY DO I NEED ONE?

A Medicare Set Aside (MSA) is a vital and necessary component in many workers’ compensation settlements. Under the Medicare Secondary Payer law, it is impermissible for any party or “primary payer” that may have primary responsibility to pay for the medical care of an injured worker to shift that responsibility to Medicare without first receiving the permission or consent Medicare. In other words, it is Congress’ intent that Medicare always be a “secondary payer” for medical care related to an on-the-job or industrial injury unless Medicare agrees to accept that primary responsibility.  For example, under the Florida Workers’ Compensation Law, the Employer and its insurance company (jointly referred to as the Employer/Carrier) have the primary responsibility to provide medical care to an injured worker that is necessitated by an industrial accident.  In most instances, when the case is ready to settle, the Employer/Carrier will require as a condition of that settlement that the injured worker give up his right to all benefits under workers’ compensation including future medical care.  Under certain circumstances, a specified sum of money must be set aside from the settlement proceeds to cover future medical expenses so Medicare can avoid that responsibility in the future.

UNDER WHAT CIRCUMSTANCES IS A MEDICARE SET ASIDE ALLOCATION REQUIRED?

Not every settlement requires establishing an MSA. If the injured worker is already a Medicare beneficiary (i.e. he's already receiving Social Security disability or retirement benefits) an MSA is required unless the total settlement is less than $25,000, inclusive of attorney fees and costs.  Under that scenario, the Employer/Carrier will usually still require language in the settlement documents indicating that the injured worker will place some of the money aside to cover future medical expenses and protect Medicare's interest but a formal MSA is not necessary.

If the workers’ compensation settlement equals $250,000 or greater (including attorney fees) and it is reasonably expected that the injured worker will be Medicare eligible within 30 months, an MSA is also necessary.  This usually occurs when the injured worker has been accepted as disabled by the Social Security Administration but there is a delay in Medicare eligibility.

In all other instances, an MSA is neither required nor appropriate as a condition of settlement.

WHY IS A MEDICARE SET ASIDE ALLOCATION IMPORTANT TO ME?

If you are an injured worker looking to settle your case, you want to make sure your eventual settlement does not jeopardize your future Medicare eligibility.  If a certain amount of your settlement proceeds is set aside to cover future medical expenses related to your industrial accident, you can protect your future Medicare eligibility.  Future medical bills related to his workers’ compensation injury must be paid out of this separate fund.  Meanwhile, Medicare will continue to provide medical care for all other medical conditions. Failure to set up an MSA and properly administer it can jeopardize the injured workers’ entitlement to all Medicare benefits.

HOW IS THE MEDICARE SET ASIDE ALLOCATIONS ESTABLISHED?

In most cases, the insurance company for the Employer will hire a company to evaluate the injured worker’s future medical needs and determine the cost of same as it pertains to the injuries sustained in the industrial accident.  These companies evaluate the injured worker’s medical records to determine what medical treatment, including medications, the injured worker will need in the future in an attempt to determine what the total cost of his future medical needs.  Once that amount is determined, it becomes a fixed number in the settlement negotiations with the Employer/Carrier.  Most often, the Employer/Carrier will fund this MSA amount with a structured settlement in which an annuity is set up to make yearly payments rather than paying out a lump sum amount.  This procedure is designed to save the Employer/Carrier money while still fulfilling the obligation to set aside a portion of the settlement to protect Medicare’s interests and is an acceptable means to fund the MSA provided it is approved in advance by Medicare. 

Once a settlement has been tentatively reached between the injured worker and the Employer/Carrier, the Employer/Carrier usually utilizes the services of the same company to seek Medicare approval of the proposed MSA.  This process usually takes between 3-6 months although it can take longer in some instances.  Once Medicare approves the MSA, the workers’ compensation settlement can be finalized.

HOW IS THE MEDICARE SET ASIDE ALLOCATION ADMINISTERED?

In some cases, the Employer/Carrier will pay a company to administer the MSA on behalf of the injured worker. However, in most cases, the injured worker is required to administer the MSA fund himself. This requires the injured worker to keep the amounts paid into the MSA from the settlement proceeds (whether it is paid in a lump sum amount or in annual payments under a structured settlement) in a separate, interest bearing bank account and use it only to pay medical bills related to his industrial injury. The injured worker must keep a copy of all of these bills along with proof of payment in order to verify his use of the MSA proceeds. The good news is that the injured worker may use the MSA proceeds to pay for any doctor or facility he desires so long as those health care providers otherwise except Medicare patients. He is not limited to treating with health care providers that were previously authorized by the Employer/Carrier in the workers’ compensation case. If the rules established by Medicare have been followed and Medicare has approved the terms of the proposed MSA, Medicare will then assume responsibility for future medical expenses related to the injured workers’ industrial accident (that would otherwise be covered by Medicare) once that MSA amount has been exhausted.

As you can see, Medicare Set Aside Allocations can be very complicated and truly require an attorney with experience in dealing with these types of settlements to make sure the injured worker is adequately protected. Here at the Znosko & Reas we handle such cases on a regular basis and would be happy to answer your questions in this regard.  Please call me directly and I will be happy to answer any questions you may have.  407-786-2900

 The Florida State Senate has passed a bill approving a $10.75 million settlement for Eric Brody, who was seriously injured when hit by a Broward County Sheriff’s deputy. A jury awarded Brody over $30 million in 2005 but the Senate must approve any award over $200,000 that is paid by a government agency. Now 32, Brody was driving home from a part-time job in 1988 when the college-bound high school student was rear-ended by Sheriff’s deputy Christopher Thieman. Though the speed limit was 45 miles per hour, it is estimated that the deputy was going at least 70 miles per hour, according to the Miami Herald. Brody was badly injured experienced significant brain injury, was in an induced coma for six months, and remains confined to a wheelchair.

Thieman was allegedly speeding on the way to a mandatory roll-call at the district station, as he was running late after visiting his girlfriend. Brody was driving a 1982 AMC Concord and was returning home from his job at the Sawgrass Mills Sports Authority. The student was turning left into his development and had crossed two of the three lanes when Thieman switched lanes and smashed into the passenger’s side of his car. Thieman was found by a jury to be 100% negligent in causing the accident. Brody was airlifted to Broward General Hospital where he underwent extensive surgery to repair bodily injuries and extensive brain damage.

Brody was induced into a coma, which he remained in for upwards of six months. Rehabilitation helped Brody regain the abilities to walk, talk, eat, and other basic functions, but he remains disabled. In addition to having to get around in a wheelchair, Brody still cannot perform functions to the fullest extent, has speech disabilities, cognitive dysfunction, judgment impairment, memory loss, and visual disabilities. Ranger Insurance Co. insured the Broward County Sheriff’s Office, and will pay the entirety of the settlement. Though the policy limit was $3 million, the insurance company ignored 7 letters asking for settlement and waited years until the trial date to offer a settlement. The settlement is intended to pay for Brody's medical care, living expenses, vocational training, and recreational activities.

Brain injuries can have devastating consequences for victims, often leading to the need for long-term rehabilitation and care. In addition, many brain injury victims are unable to return to work or function as they previously were able to. Even those with mild head trauma will notice a serious impact on their job, social interaction and finances. Due to the serious nature of brain injuries, personal injury laws allow victims who were hurt as a result of another’s negligence the opportunity to seek compensation. As with Eric Brody, a victim may seek remuneration for lost wages, loss of earning capacity, current and future medical bills, and pain and suffering. If you or a loved one has suffered a brain injury, contact Znosko & Reas, P.A. to see if you are eligible to pursue legal recourse.