February 2011

If you’ve been reading this blog, you know my feelings about the fraud defense.  It is a helpful tool in an E/C’s assortment of defense strategies, but it should be used after thoughtful deliberations.  The First DCA has limited the definition of fraud in hopes to curb the rampant use at the trial court level.  Yet, the Court refused to apply a reverse penalty to E/C’s when they commit fraud.

Now, it appears there is a penalty for E/C’s who use the fraud defense and lose at trial.


A loyal reader just informed me that my email address in the “About” section is correct, but it links to my old Fowler White address. 

Just for the record, if anyone is looking to contact me, you can email me at mrabinowitz@bankerlopez.com.

Sorry for the confusion.  I just corrected the link in the “About” section.

Few areas of the law are as confusing as major contributing cause.  Workers’ Compensation is the only area of personal injury law where the “eggshell plaintiff” does not exist.  In all other areas, the law takes the claimant “as is,” even if they have pre-existing conditions. 

In W/C, we divy up the causes of Claimant’s disability.  If the more than 50% is related to the compensable accident, then the E/C pays.  If not, then–in theory–the E/C does not pay.   (The flip side of this is apportionment, which I wrote about prior.)

Ever since 1993, when the Legislature first introduced the major contributing cause standard, the courts have honed this section of 440 and redifned.   In turn, the Legislature did their own honing.  All the while, Claimant’s and E/C’s scratch their heads.

Well, now its time for another head scratcher. . . (more…)