The Issue The issue to be determined is the amount to be reimbursed to Respondent, Agency for Health Care Administration (AHCA), for medical expenses paid on behalf of Petitioner, Ashton Haywood, from personal injury settlements received by Petitioner from third parties.
Findings Of Fact On August 18, 2011, Ashley Williamceau, then 32 weeks pregnant, presented to the emergency room with lower abdominal pain. She was taken to the labor and delivery unit where the nurses had difficulty obtaining a fetal heart beat and failed to note signs and symptoms of a placental abruption. An emergency C-section was performed and Ashton Haywood (“Ashton”) was born without a heart rate and required resuscitation. Ashton’s heart rate remained below 60 until three minutes of life. As a result of the delay in performing the C-section, Ashton suffered a severe hypoxic ischemic brain injury resulting in permanent and irreversible catastrophic brain damage. Ashton is unable to speak, ambulate, eat, toilet or care for himself in any manner. He is dependent on others for every aspect of his daily care. Ashton’s parents and natural guardians, Ashley Williamceau and Jamal Haywood, brought a medical malpractice action in Palm Beach County, Florida, to recover all of Ashton’s damages, as well as their individual claim for damages associated with their son’s injury, against Ashton’s medical providers (“Defendants”). Ashton’s past medical expenses related to his injuries were paid in part by Medicaid, and Medicaid provided $464,302.93 in benefits. This $464,302.93 paid by Medicaid, combined with $23,386.52 in medical bills not paid by Medicaid, constituted Ashton’s entire claim for past medical expenses. Accordingly, Ashton’s claim for past medical expenses was $487,689.45. Ashton, or others on his behalf, did not make payments in the past or in advance for Ashton’s future medical care, and no claim for damages was made for reimbursement, repayment, restitution, indemnification, or to be made whole for payments made in the past or in advance for future medical care. Ashton’s parents and natural guardians, Ashley Williamceau and Jamal Haywood compromised and settled the medical malpractice lawsuit for $5,000,000. In making this settlement, the settling parties agreed that: 1) the settlement did not fully compensate Ashton for all his damages; 2) Ashton’s damages had a value in excess of $35,000,000, of which $487,689.45 represented his claim for past medical expenses; and 3) allocation of $69,642.05 of the settlement to Ashton’s claim for past medical expenses was reasonable and proportionate. The Settlement Agreement and Release memorializing the settlement between Petitioner and Defendants provided, in part, as follows: Although it is acknowledged that this settlement does not fully compensate Ashton Haywood for all of the damages he has allegedly suffered, this settlement shall operate as a full and complete Release as to RELEASEES without regard to this settlement only compensating Ashton Haywood for a fraction of the total monetary value of his alleged damages. The parties agree that Ashton Haywood’s alleged damages have a value in excess of $35,000,000, of which $487,689.45 represents Ashton Haywood’s claim for past medical expenses. Given the facts, circumstances, and nature of Ashton Haywood’s injuries and this settlement, the parties have agreed to allocate $69,642.05 of this settlement to Ashton Haywood’s claim for past medical expenses and allocate the remainder of the settlement towards the satisfaction of claims other than past medical expenses. This allocation is a reasonable and proportionate allocation based on the same ratio this settlement bears to the total monetary value of all Ashton Haywood’s damages. Further, the parties acknowledge that Ashton Haywood may need future medical care related to his injuries, and some portion of this settlement may represent compensation for future medical expenses Ashton Haywood will incur in the future. However, the parties acknowledge that Ashton Haywood, or others on his behalf, have not made payments in the past or in advance for Ashton Haywood’s future medical care and Ashton Haywood has not made a claim for reimbursement, repayment, restitution, indemnification, or to be made whole for payments made in the past or in advance for future medical care. Accordingly, no portion of this settlement represents reimbursement for future medical expenses Because Ashton was a minor, his settlement required Court approval. Accordingly, by Order on Plaintiffs’ Amended Petition for Court Approval of Minor’s Settlement dated August 12, 2015 (“Order Approving Settlement”), the Circuit Court Judge, Honorable Meenu T. Sasser, approved Ashton’s settlement. As a condition of Ashton’s eligibility for Medicaid, Ashton assigned to AHCA his right to recover from liable third- parties medical expenses paid by Medicaid. See 42 U.S.C. §§ 1396a(a)(25)(H) and 409.910(6)(b), Fla. Stat. AHCA was not a party to the settlement between Petitioner and Defendants. By letter of September 24, 2015, Ashton’s medical malpractice attorney notified AHCA of the settlement and provided AHCA with a copy of the executed Release, copy of the Order Approving Settlement, and itemization of $396,334.04 in litigation costs. This letter explained that Ashton’s damages had a value in excess of $35,000,000 and the settlement represented only a 14.28-percent recovery of Ashton’s $487,689.45 claim for past medical expenses, or $69,642.05. This letter requested AHCA to advise as to the amount AHCA would accept in satisfaction of the Medicaid lien. AHCA did not file an action to set aside, void, or otherwise dispute Ashton’s settlement with the Defendants. The Medicaid program spent $464,302.93 on behalf of Ashton, all of which represents expenditures paid for Ashton’s past medical expenses. No portion of the $464,302.93 paid by the Medicaid program on behalf of Ashton represent expenditures for future medical expenses, and AHCA did not make payments in advance for medical care. Section 409.910(11)(f) provides, in pertinent part, as follows: (f) [I]n the event of an action in tort against a third party in which the recipient or his or her legal representative is a party which results in a judgment, award, or settlement from a third party, the amount recovered shall be distributed as follows: After attorney’s fees and taxable costs . . . one-half of the remaining recovery shall be paid to the agency up to the total amount of medical assistance provided by Medicaid. The remaining amount of the recovery shall be paid to the recipient. For purposes of calculating the agency’s recovery of medical assistance benefits paid, the fee for services of an attorney retained by the recipient . . . shall be calculated at 25 percent of the judgement, award, or settlement. Ashton and AHCA agree that application of the formula at section 409.910(11)(f) to Ashton’s settlement requires payment to AHCA of the full $464,302.93 Medicaid lien. The full Medicaid lien amount has been deposited into an interest-bearing account pending an administrative determination of AHCA’s rights, and this constitutes “final agency action” for purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17). Pursuant to the formula set forth in 409.910(11)(f), Respondent should be reimbursed $464,302.93, the full amount of its lien. However, the statute provides a method by which a recipient may contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula set forth in paragraph (11)(f). “In order to successfully challenge the amount payable to the agency, the recipient must prove, by clear and convincing evidence, that a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by the agency” pursuant to the formula. § 409.910(17)(b), Fla. Stat. Darryl L. Lewis has been an attorney for 27 years and is a partner with Searcy, Denny, Scarola, Barnhart & Shipley, P.A. The focus of his practice is plaintiffs’ personal injury and medical malpractice, and he has handled cases throughout Florida and multiple states involving catastrophic injury and death. He testified that over the last 27 years he has handled well over 50 to 75 jury trials, including cases involving catastrophic injury to children. Mr. Lewis has served in executive leadership positions of a number of trial attorney organizations, including the Florida Justice Association, the American Association for Justice, and the Attorney Information Exchange Group, and he is currently on the executive committee of the Trial Lawyers Section of the Florida Bar. He is also a member of the Kentucky Justice Association, the T.J. Reddick Bar Association, and the Malcolm Cunningham Bar Association. Mr. Lewis testified that as a routine and daily part of his practice, he makes assessments concerning the value of damages suffered by injured parties. He explained this process which includes extensive meetings with the client, review of medical records and life care plans, review of jury verdicts and settlements secured by his firm, use of focus groups, and “round-tabling” the case with members of his law firm, which “specializes in catastrophic injury cases and is known across the country for getting some of the biggest results for lawyers that do that type of work.” Mr. Lewis was proffered and accepted as an expert in the valuation of damages suffered by injured parties. Mr. Lewis represented Ashton and his family relative to Ashton’s medical malpractice action. He explained that as part of his representation, he spent countless hours with Ashton and his parents in their home, in the car, and at doctor visits. Further, Mr. Lewis testified that every medical record for Ashton was reviewed, and he reviewed the life care plan, met with the life care planner, traveled to Kentucky and spent hours discussing Ashton’s case with Dr. Ronald Missum (the Economist), and took 70 to 100 depositions of experts and doctors. Mr. Lewis gave a detailed explanation of the circumstances giving rise to Ashton’s premature birth via C-section at 32 weeks’ gestation, and the nature of his catastrophic brain damage. He explained that Ashton’s mother had abdominal pain and was instructed by her obstetrician’s office to go to the emergency room. Once a doctor became involved at the emergency room, it was determined that Ashton’s mother had suffered a placental abruption and she underwent an emergency C-section. Ashton was born with a catastrophic brain injury. Mr. Lewis testified that Ashton’s brain injury is “irreversible and permanent. He’s of the children who are the most injured that you will ever see. He is catastrophically brain injured, and those brain cells don’t grow back. Ashton will never be able to walk. Ashton will never be able to talk. Ashton will never be able to feed himself, so he’s as injured as any human being can be.” Ashton receives his nutrition through a G-tube and he will need 24 hour care for the rest of his life. Mr. Lewis explained that this injury has not only had a devastating impact on Ashton’s life, but also had a profound impact on the life of Ashton’s parents, whose “whole life has changed and they understand that, but they’re dedicated to taking care of Ashton.” Mr. Lewis testified that through his representation of Ashton and his parents, review of Ashton’s file, and based on his training and experience, he had developed the opinion that the value of Ashton and his parents’ damages was between $39 and $53 million. In relation to economic damages, Mr. Lewis outlined his review of the life care plan and the report of the Economist, who was deposed during the litigation. Mr. Lewis testified that the Economist placed the present value of Ashton’s lost ability to earn money at $1,770,057 to $3,300,000 and the present value of Ashton’s future life care needs at $18.6 to $27 million. Accordingly, the present value of Ashton’s lost earnings, future life care needs, and $487,689.45 past medical claim would be between $20,857,746 and $30,787,689. Mr. Lewis then turned to the non-economic damages of Ashton and his parents and noted that “the biggest damages in a case are the non-economic damages.” Mr. Lewis explained that he was “very conservative” in valuing the non-economic damages. He placed the value of Ashton’s non-economic damages at $13 million and noted that this was “very, very low considering his life expectancy as testified by Dr. Lichtblau and Dr. Cullen.” Mr. Lewis opined that Ashton’s parents’ non-economic damages had a conservative value of between $3 and $5 million each. Based on the valuation of Ashton’s economic damages and the non-economic damages of Ashton and his parents, Mr. Lewis testified that the value of Ashton and his parent’s damages was between $39 and $53 million. He testified that the valuation of Ashton’s damages as used by the settling parties, of $35 million was very conservative. In further support of his valuation of the damages, Mr. Lewis explained that he took into consideration jury verdicts and his firm’s experience handling similar cases. He testified that the nine verdicts in Petitioner’s Exhibit 12 involved injuries comparable to Ashton’s injury. Mr. Lewis’s professional opinion regarding the valuation of Ashton’s damages is credited. Mr. Lewis testified that the settlement did not fully compensate Ashton for the full value of his damages. Mr. Lewis testified that based on the conservative valuation of all Ashton’s damages of $35,000,000, the settlement represented a recovery of 14.28 percent of the value of Ashton’s damages. Mr. Lewis testified that because Ashton only recovered 14.28 percent of the value of his damages in the settlement, he only recovered 14.28 percent of his $487,689.45 claim for past medical expenses, or $69,642.05. Vince Barrett also testified on behalf of Petitioner. Mr. Barrett is a trial attorney with almost 40 years’ experience in personal injury, medical malpractice, and medical products liability cases. Mr. Barrett was accepted as an expert in valuation of damages suffered by injured persons. Mr. Barrett testified that he was familiar with Ashton’s injuries and had reviewed the hospital birth records, pediatric neurologist medical records, pediatric pulmonologist medical records, the Defense’s Independent Medical Examination Report of Dr. Cullen, Dr. Lichtblau’s Life Care Plan, the Economist Report, the Complaint, the Release, the Guardian ad Litem Report, a Day-in-the-Life Video, and had spoken to Ashton’s mother concerning Ashton’s medical condition. Mr. Barrett testified that based on his review of the file and “years and years of experience in doing those cases,” the valuation of Ashton’s damages at $35 million was very conservative. Mr. Barrett noted that the Economist had projected the present value of Ashton’s lost earning capacity at between $1,707,057 to $3,300,000 and his future life care needs at $18,657,867 to $27,036,808, and these numbers were in keeping with what he had seen in other catastrophic injury cases. Mr. Barrett testified that the valuation of Ashton’s non- economic damages at $13 million was “extremely conservative” and he believed Ashton’s non-economic damages would be in the range of $15 to $20 million. Further, Ashton’s parents’ non-economic damages had a value of $3 million each. Mr. Barrett testified that his valuation of the non-economic damages was based on “that sort of feeling I just develop over years and years of looking at these and seeing how they come up and also based on jury verdict reports.” Mr. Barrett testified that he was aware that the parties to the settlement had agreed that the damages had a value in excess of $35 million and that because Ashton had only recovered 14.28 percent of his damages in the settlement, the parties had agreed to allocate $69,642.05 of the settlement to past medical expenses. Mr. Barrett testified that the settling parties’ valuation of Ashton’s damages at $35 million was conservative, and the allocation of $69,642.05 to past medical expenses was reasonable, rational, fair, and conservative. AHCA called James H.K. Bruner as a witness. Mr. Bruner has been an attorney for 33 years and a member of the Florida Bar since 2004. Since coming to Florida in 2003, he has worked for the Department of Children and Families, the Department of Health, and AHCA, and he was employed for five years by Xerox Recovery Services in relation to collection of Medicaid liens, with such employment ending in April 2013. In 2013, Mr. Bruner became a solo practitioner, and he lists on the Florida Bar website 75 areas of law in which he practices. He testified that he is a general practitioner and he practices “door law,” taking whatever comes in the door. Mr. Bruner testified that 70 percent of his practice is plaintiff personal injury. He testified that over the last two years he has only filed two personal injury lawsuits. He has never filed a medical malpractice lawsuit nor a personal injury lawsuit involving catastrophic, permanent and irreversible brain damage. Mr. Bruner testified that over the last 20 years he has not handled a personal injury jury trial. AHCA tendered Mr. Bruner as an expert in case and settlement valuation, and over Petitioner’s objection, he was accepted as an expert as tendered. Mr. Bruner’s testimony involved a review of the jury verdicts in Petitioner’s Exhibit 12, and his assertion that cases settle for the full value of the damages. In regard to the jury verdicts in Exhibit 12, Mr. Bruner criticized the verdicts, claiming that while the verdicts involved catastrophic brain injury to children, there were factual differences in the mechanism of injury; thus, making the verdicts irrelevant. Further, while the juries had determined the value of the damages, Mr. Bruner criticized the verdicts because he asserted it was possible that the cases may have settled post-verdict for less or the injured parties may have received less due to reductions for comparative negligence. Finally, Mr. Bruner testified that only verdicts from Palm Beach should be considered, and he would exclude consideration of verdicts from adjoining counties. Mr. Bruner’s testimony is not helpful or persuasive because it did not provide, nor was it offered for the purpose of providing, an alternative value of the damages suffered by Petitioner. AHCA made no attempt to provide an alternative valuation of Petitioner’s damages or contest the value of Petitioner’s damages as testified to by Mr. Lewis and Mr. Barrett. Ultimately, the credible testimony and evidence presented by Petitioner concerning the value of Petitioner’s damages was unrebutted by AHCA.
The Issue Whether Respondent, G and F Renovations, Inc. (Respondent), timely challenged Petitioner's proposed agency action; and, if not, whether pursuant to the doctrine of equitable tolling Respondent is entitled to an administrative hearing to challenge the proposed agency action.
Findings Of Fact Petitioner is the state agency charged with the responsibility of enforcing and ensuring employers meet the requirements of chapter 440, Florida Statutes. The law in Florida requires employers to maintain appropriate workers' compensation coverage for their employees. At all times material to this case, Respondent was doing business in Florida and was represented by Pedro Malaret, attorney at law. Prior to May 1, 2014, Michael Robinson, a compliance investigator employed by Petitioner, visited a job site wherein workers were engaged in the business of construction/roofing. Robinson was advised by the workers at the site that they were employed by Respondent. Robinson then investigated the matter to determine whether the persons at the job site were covered by Respondent's workers' compensation insurance. To do so, he spoke to the supervisor at the site and others to whom he was referred. After verifying the persons on the job site were not on the list of Respondent's covered employees, and consulting with his supervisor, Robinson posted a Stop-Work Order at the job site. The Stop-Work Order provided, in pertinent part: You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida Statutes. To obtain review, you must file a written petition requesting review. If you dispute a material fact contained in this action, you are entitled to a hearing under Sections 120.569 and 120.57(1), Florida Statutes, at which you may be represented by counsel, present evidence and argument on the issue(s), examine witnesses, submit a proposed recommended order, and file exceptions to the recommended order of the Administrative Law Judge. If you do not dispute a material fact contained in this action, you are entitled to a hearing under section 120.57(2), Florida Statutes, at which you may be represented by counsel, present documentary evidence, and present a written statement in opposition to this action. * * * You must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. FAILURE TO FILE A PETITION WITH THE TWENTY-ONE(21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. The Stop-Work Order and an Order of Penalty Assessment was served on Respondent's corporate agent, or authorized agent, by a process server. Respondent did not timely file a petition challenging the agency's proposed action. Instead, by email only, Respondent's counsel directed a letter to Robinson that provided: This firm has the pleasure of representing G & F Renovations, Inc. All papers to be served on G & F should be mailed or delivered to this office. My client wishes to resolve all issues relating to the matter amicably and as quickly as possible. As such, please forward a list of all documents needed to my office so that I may get them to you as soon as possible. Should you require any further documentation, please feel free to contact me either at my office or on my cell . . . I look forward to working with your [sic] to resolve this matter. Contrary to the offer to provide documents to Petitioner, Respondent did not provide business records. Eventually, an Amended Order of Penalty Assessment was issued and provided by email to Respondent's counsel at his email address of record. The Amended Order of Penalty Assessment was sent to counsel on or about October 6, 2014. Respondent did not timely file a petition to challenge the proposed agency action. Respondent did not timely challenge the Stop-Work Order and did not timely challenge the Amended Order of Penalty Assessment. Respondent did not provide any assistance to resolve the issues presented by the Stop-Work Order. When Respondent failed to timely respond to the Petitioner's requests for information, refused certified mail addressed to its office or corporate representative, and failed to timely challenge Petitioner's proposed action, a final order was entered on or about July 8, 2015. Thereafter, Respondent filed an appeal claiming Petitioner had not properly served notice of its proposed action. This case was initiated in response to the appeal to address the issue of whether the Petitioner lulled the Respondent into inaction and thereby tolled the time within which to file an administrative challenge to the proposed agency action. At no time did Respondent deny allegations pertinent to the instant case, including whether the workers at the construction job site were employed by Respondent. If the workers at the construction job site were appropriately covered by workers' compensation insurance or were exempt from coverage, Respondent did not assert such defense. In fact, Respondent did not cooperate to provide any information to Petitioner that would "resolve all issues relating to the matter amicably and as quickly as possible." Petitioner provided notice to Respondent of the procedural requirements to challenge the agency action and did not lull Respondent into a false sense of security or inaction. To the contrary, Respondent attempted to circumvent its legal responsibilities by refusing certified mail and failing to provide business records in a timely manner. Respondent seeks to benefit from its inaction. Had Respondent provided documents to support any defense to the Stop-Work Order and initial assessment of administrative fine, the issues could have been resolved. The weight of the credible evidence supports the finding that Respondent did not timely challenge the proposed agency action within the 21 days allowed by law. In short, Respondent ignored the Stop-Work Order and the legal claims it presented.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent failed to timely file a petition to challenge the agency's proposed action and its failure to do so was not the result of equitable tolling. DONE AND ENTERED this 6th day of December, 2016, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2016. COPIES FURNISHED: Michael Joseph Gordon, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Kelli B. Hastings, Esquire Law Office of Kelli B. Hastings, PLLC 4005 North Orange Blossom Trail Orlando, Florida 32804 (eServed) Pedro Malaret, Esquire Malaret Law Firm, PLC 732 North Thorton Avenue Orlando, Florida 32803 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact Petitioner was employed at Respondent as a bartender from May, 1987 until October 29, 1987, when she was terminated. On October 29, 1987, she was terminated by Scott McGregor, owner of Respondent, due solely to the fact that she was pregnant at the time. Petitioner was nine and one-half weeks pregnant when she was terminated. She had told her employer when she became pregnant, and he had told her she could keep her job as long as she wanted, and even into her ninth month of pregnancy. On the day Petitioner was fired, McGregor referred to her pregnancy and indicated her condition was not consistent with the name of his business, "Heavenly Bodies". Petitioner's gross hourly wage was $4.50, and she regularly worked six days a week, seven and one-half hours a day, for a total of 45 hours a week. She attempted to find other work as a bartender after she was terminated, but could not find employment because of her pregnancy. She remains unemployed to date. However, her current unemployed status appears to result from her decision to stay home with her baby. Due to her termination based solely on her pregnancy, Petitioner was discriminated against by Respondent based on sex. Respondent has suffered damages in the amount of $4,455.00 due to lost wages. This amount is computed from her hourly wage for a period of 22 weeks, which covers the period of time from her termination at nine and one-half weeks to the end of her eighth month of pregnancy. No award is made for the period after her baby was born since she has voluntarily remained home with her baby, and has not sought employment during this time.
Recommendation Based upon the foregoing, it is recommended that the City of Clearwater, Community Relations Board, enter a Final Order finding that Respondent has unlawfully discriminated against Petitioner based upon sex, and awarding Petitioner $4,455.00 in actual damages for back wages as a result of such discrimination. DONE AND ENTERED this 6th day of September, 1988 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1988. COPIES FURNISHED: Lori Baxter 3054-G Beecher Drive, East Palm Harbor, Florida 34683 Scott McGregor, Owner Heavenly Bodies II 3323 U.S. 19 North Clearwater, Florida 34619 Ronald M. McElrath Office of Community Relations Post Office Box 4748 Clearwater, Florida 34618 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 34618
The Issue The issue in this case is the amount of Petitioner’s personal injury settlement required to be paid to the Agency for Health Care Administration (AHCA) to satisfy its Medicaid reimbursement claim under section 409.910, Florida Statutes.1/
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Background On April 9, 2009, Petitioner, Glenn Holland, came into contact with an energized overhead electric power line owned by the local utility company. At the time of the incident, Mr. Holland was working as a professional tree trimmer. As a result of his contact with the wire, he was shocked, lost his balance and grip and fell approximately 30 feet to the ground, and sustained catastrophic bodily injuries which rendered him a wheelchair-bound paraplegic. Petitioner’s emergency and other medical expenses were paid by Medicaid. The parties stipulated that Medicaid has paid a total of $219,908 to treat Petitioner for his injuries. Petitioner commenced a civil action against the utility company, alleging negligence in the maintenance of the power line and adjacent pole and structures. The utility company defended, claiming comparative negligence on the part of Mr. Holland. Ultimately, Petitioner settled the lawsuit for $500,000. The costs incurred by Petitioner in the underlying action were stipulated to be $65,183.49. Thereafter, AHCA, pursuant to the formula set forth at section 409.910(11)(f), Florida Statutes, asserted an entitlement to be paid $154,908.25 from the proceeds of the $500,000 settlement. Petitioner objected to the Agency’s demand for $154,908.25 and timely commenced this action. Evidence Relating to Damages On February 24, 2014, the parties filed with DOAH a document entitled “Stipulation #1.” Through the document, the parties stipulated to the following: The Petitioner, had the underlying matter gone to trial, would have presented and sought to prove-up the damage figures that appear on page 10 of 10 of Dr. J. Rody Borg’s report as Mr. Glenn Holland, III's economic damages. These figures appear on page 3 of the Petitioner’s Petition in the instant case at the Division of Administrative Hearings. The figures in Dr. Borg's Report were calculated by Rody Borg, Ph.D., in consultation with the life care report of Dr. Craig Lichtblau, MD. The Respondent agrees to not object to testimony from Petitioner's expert witnesses (i.e. Chris Shakib) at final hearing regarding the economic damages figures contained in Dr. Borg's report, including, by way of example, that Dr. Borg opined that the amount of lost past earnings was $297,741; future earnings lost were $1,139,070, that lost benefits were $113,907 and the low present value amount of future life care expenses total $4,656,614, for a total calculated economic loss (assuming low estimated figures) of $6,207,333. Petitioner stipulates that he will not seek to admit into evidence Dr. Borg’s report nor the Dr. Lichblau report. Page 3 of the Petition referenced in the first stipulation above sets forth estimated (past) and projected (future) economic damages suffered by Petitioner, as follows: At hearing on this matter, plaintiff will submit proof of: the amount of Medicaid’s lien $219,108.80—by reference to Medicaid’s lien demand amount. Mr. Holland’s total injuries, medical and otherwise, by reference to Craig H. Lichtblau, M.D.’s life care plan pertaining to medical damages and a summary of medical bills. The present dollar value of Mr. Holland’s injuries by reference to Dr. Borg’s expert report. Total future medical damages, those not paid by AHCA exceed $4.65 million on a present value basis. (See e.g. table below from Dr. Borg’s Economic Damages Report.) LIFE CARE PLAN TOTALS LOW MID HIGH Actual Future Expected $16,708,080.52 $19,121,210.31 $21,534,340.10 Present Value $4,656,614.47 $5,388,683.20 $6,120,751.93 ECONOMIC DAMAGES SUMMARY Glenn Holland III OVERALL LOSS TOTALS LOW MID HIGH Past Earnings $297,741.27 $297,741.27 $297,741.27 Future Earnings $1,139,070.35 $1,518,760.47 $1,898,450.59 Future Benefits $113,907.04 $227,814.07 $379,690.12 Future Life Care $4,656,614.47 $5,388,683.20 $6,120,751.93 OVERALL TOTALS $6,207,333.14 $7,432,999.02 $8,696,633.91 Dr. Craig Lichtblau is a physiatrist (a physician specializing in physical medicine) retained by Mr. Holland in the underlying action to evaluate his condition and to render an opinion regarding the future care and treatment needs of Mr. Holland as a result of injuries. Dr. Lichtblau prepared a report of his findings and projections, referred to as the Life Care Plan. Rody Borg, Ph.D., is an economist and professor at Jacksonville University. He was retained by Petitioner to evaluate the Life Care Plan and to calculate what it would cost to provide the services outlined in the plan. Dr. Borg prepared an “Economic Damages Report” that reduced to present value the cost of future medical expenses and other damages sustained by Mr. Holland, as outlined by Dr. Lichtblau. Christopher Shakib, Esquire, was called as Petitioner’s only witness. Mr. Shakib has practiced law for more than 20 years, and has experience in personal injury, civil trial, and catastrophic injury cases. Prior to testifying, Mr. Shakib reviewed the pleadings in the underlying tort action, discovery, deposition testimony, and the expert reports prepared by Dr. Lichtblau and Dr. Borg. Mr. Shakib first discussed the economic damages that Petitioner has, and will, continue to suffer as a result of the accident. Those categories of economic losses include past earnings, future earnings, future benefits, and future life care (medical) expenses. Consistent with the figures appearing on page 3 of the Petition, Mr. Shakib testified that in his opinion, the amount of economic damages sustained by Mr. Holland ranged in present value, from a low of approximately $6.2 million to a high of approximately $8.7 million. Subsumed within these projections were projected future medical expenses ranging from a low of approximately $4.6 million to a high of approximately $6.1 million. Mr. Shakib further opined that in addition to economic losses, Petitioner has, and will, suffer non-economic losses. These include pain and suffering, loss of enjoyment of life, inconvenience, and mental anguish. In his opinion, the non- economic damages sustained by Mr. Holland would range from $8.7 million to $20 million. Mr. Shakib explained the approach he followed to come up with his projection of non-economic losses, as follows: A. Right. There are different ways to do it. Some people will amortize it and come up with a daily rate for pain and suffering. And, you know, in my opinion sometimes that ends up making the numbers too high, higher than I think are reasonable. What I do in my practice, and I’ve done this for many years, is when trying to evaluate what a case is worth, I will take all of the economic losses and I’ll add one extra component for the medicals in the past that were billed; I won’t just use the amount that was paid but I will use the actual amount that was billed to come up with the total economics, as a rule of thumb that I use. And I think it was closer to a million and the amount that was actually billed versus the $219,000 or so that was actually paid. And so I’ll add the difference between the billed amount and the paid amount back in, and then I will double the economics to get my low range value of a case like this; and I’ll triple the economics, and that will give me the high range for what I think the case is worth. Although the Medicaid program paid $219,108.80 for medical services provided to Petitioner, a total of $1,140,386.80 was billed to Medicaid for Petitioner’s medical care. The remaining $921,278.00 represented the “write-off” taken by medical services providers. Mr. Shakib has never met Mr. Holland, or personally evaluated his physical condition. Mr. Shakib testified that in catastrophic injury cases, he typically interviews the treating physicians, yet there is no evidence in this record that he did so in preparing to render testimony in this case. Nor did Mr. Shakib offer testimony regarding the actual degrees of pain and suffering, loss of enjoyment of life, inconvenience, and mental anguish that has been suffered, or will be suffered in the future, by Mr. Holland. Mr. Shakib conducted no jury verdict research and did not compare this case to any case tried to verdict. Mr. Shakib’s testimony regarding Petitioner’s non- economic damages was lacking in detail, and was unpersuasive. The imprecision of Mr. Shakib’s projections was underscored by his projected range of non-economic damages, from $8.7 million to $20 million, a swing of more than $11 million. According to Mr. Shakib, the total economic and non- economic damages sustained by Mr. Holland were in the range of $15 million to $29.5 million.3/ Mr. Shakib opined that “regardless of any issues of liability; if 100 percent liability could be proved with no comparative fault and there was someone who could pay these damages, this case is worth between 15 million and a little less than 30 million, and I think that because of his age at the time that he became a quadriplegic, that his actual damages are more on the higher side of that than the lower side of that.” Mr. Shakib’s testimony regarding the total damages suffered by Petitioner is rejected, since the largest component of the total damages estimate are the non-economic damages, which are non-credible. Mr. Shakib thereafter calculated the proportion that the amount of past medical expenses ($219,108.80) bore to the full value of the case. He calculated the proportion as a range of between 1.46%4/ and 0.742%.5/ In other words, according to Mr. Shakib, the Agency’s recovery should be limited to between 1.46% and 0.742% of the settlement amount. Mr. Shakib then applied these ratios to the settlement and the amount sought by the Agency. In this regard, he testified, “[M]y opinion is that the lien recovery by the agency should be between $3700 and $7300, and my opinion would be it should really be more towards the lower end of that because of the value of the case given the fact that this is a 22-year-old who becomes a quadriplegic.” As noted, Mr. Shakib did not include the projected future medical expenses in his calculation of the proportion that medical expenses bore to the full value of the case. Had he done so, the following chart illustrates the impact the inclusion of future medical expenses would have on the calculation of the Medicaid lien recovery amount: CALCULATION OF LIEN RECOVERY AMOUNT USING PETITIONER’S METHODOLOGY WITH INCLUSION OF FUTURE MEDICAL EXPENSES LOW HIGH PAST MEDICALS PAID BY AHCA $219,108.80 $219,108.80 FUTURE MEDICALS $4,656,614.00 $6,120,752.00 TOTAL MEDICALS $4,875,722.80 $6,339,860.80 TOTAL DAMAGES $15,000,000.00 $29,511,063.33 PROPORTION OF MEDICAL EXPENSES TO TOTAL DAMAGES 32.505% 21.483% SETTLEMENT AMOUNT X $500,000 X $500,000 LIEN RECOVERY AMOUNT $162,524.09 $107,414.98
The Issue The issue is whether Petitioner, U.S. Builders, L.P. (USB), timely and effectively requested a final hearing on the issues related to the Order of Penalty Assessment issued by the Department of Financial Services, Division of Workers’ Compensation (Department) in accordance with the requirements of Chapter 120.57, Florida Statutes.
Findings Of Fact USB is a general contractor engaged in the construction industry and is properly registered to conduct business in the State of Florida. The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation coverage for the benefit of their employees and corporate officers. § 440.107, Fla. Stat. On May 30, 2007, Department Investigator Teresa Quenemoen conducted an investigation or compliance check of USB to determine liability for workers’ compensation coverage. As a result of that investigation, an Order of Penalty Assessment was issued on June 18, 2007, assessing USB a penalty in the amount of $14,983.95. Attached on the opposite side of the page from the Order was a Notice of Rights directing the recipient how to properly respond if he wished to contest the penalty. Quenemoen received a letter, dated June 21, 2007, from J. Roland Fulton, President of USB, which states that he “strongly disagrees” with the Department’s allegations that USB failed to secure adequate workers’ compensation coverage and he wants to “resolve” the matter and “void the Order of Penalty.” If the Department could not make that happen, he wanted to have the “Appeal Procedures.” In a consultation with her Supervisor, Robert Lambert, regarding how to respond to Fulton’s letter, Quenemoen was advised to immediately contact USB and advise them of the Notice of Rights and timeline requirements for any petition they may wish to file. This conversation took place well within the 21-day period for request of formal administrative proceedings. Quenemoen was also advised to provide a copy of the Notice of Rights to USB. Quenemoen, however, delayed taking any action until she contacted USB via letter on August 3, 2007, after the expiration of the timeline requirements for timely filing which occurred on July 9, 2007. Quenemoen indicated within her August 3, 2007 letter to USB that the original date of the Order was the operative date. Robert Lambert testified that the June 21, 2007, letter of USB’s president contained most of the requirements considered necessary for the letter to have been viewed as a petition for administrative proceedings and would have been so considered had the words “Petition for Hearing” appeared at the top of the page. He is also unaware of any prejudice that would result to the Department if the matter of penalty assessment against USB were permitted to proceed to a hearing on the merits of the matter. Quenemoen, in her deposition, opines she did not consider the June 21, 2007, letter to be a petition because she thought it lacked crucial items, such as an explanation of how the party’s substantial interests would be affected by the agency’s decision; disputed items of material fact; and a concise statement of ultimate facts alleged. Quenemoen’s August 3, 2007 letter to USB, inquired why USB had neither paid their penalty nor entered into a Payment Agreement Schedule for Periodic Payment of Penalty, pursuant to Section 440.107, Florida Statutes. The letter re-informed USB that it had 21 days from the receipt of the original Order of Penalty Assessment to file a petition for hearing. On August 23, 2007, the Department received a Petition for Hearing from USB’s counsel. The Department determined the Petition filed by USB met the content criteria but failed on timeliness as it was filed more than forty days past the deadline of July 9, 2007. USB, through the testimony of its President, Mr. Fulton, admitted that he was not “familiar with the law. I did not go look it up.” He also said, “I did not think I needed to go back and consult the textbook of the law.” When asked if he ever decided to consult with a lawyer during the 21-day period, he stated he did not.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Financial Services enter a Final Order that Petitioner, U.S. Builders, L.P. (USB), timely and effectively requested a final hearing on the issues related to the Order of Penalty Assessment issued by the Department of Financial Services, Division of Workers’ Compensation (Department) in accordance with the requirements of Chapter 120.57, Florida Statutes, and proceed forthwith with provision of such proceedings. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2008. COPIES FURNISHED: William H. Andrews, Esquire Coffman, Coleman, Andrews and Grogan, P.A. Post Office Box 40089 Jacksonville, Florida 32203 Marc A. Klitenic, Esquire Kandel, Klitenic, Kotz and Betten, LLP 502 Washington Avenue Suite 610 Towson, Maryland 21204 Kristian E. Dunn, Esquire Anthony B. Miller, Esquire Department of Financial Services Division of Workers’ Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Daniel Y. Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 The Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue is the amount payable to Respondent, Agency for Health Care Administration, in satisfaction of Respondent's Medicaid lien from a settlement received by Petitioner, Austin Hopper, from a third party, pursuant to section 409.910, Florida Statutes (2015).
Findings Of Fact Petitioner is a 27-year-old male who currently resides in St. Petersburg, Florida. Respondent is the state agency authorized to administer Florida's Medicaid program. See § 409.902, Fla. Stat. On November 27, 2012, Petitioner, then 24 years of age, was severely injured while riding a motorcycle that was struck by a motor vehicle in St. Petersburg. Among other injuries, Petitioner suffered a severed spinal cord, three fractured cervical vertebrae, a fractured jaw, fractured ribs, the loss of seven teeth, and right shoulder laceration. As a result of his injuries, Petitioner is now a paraplegic confined to a wheelchair. He has other health issues other than paralysis, including an inability to voluntarily void his bladder or bowels. The injuries have had a profound effect on Mr. Hopper's life, including his bodily functions, social life, and work life. The Florida Medicaid program paid accident-related medical expenses totaling $102,398.81 on behalf of Petitioner. His damages also include the medical expenses paid by the Brain and Spinal Cord Injury Program in the amount of $1,143.50. These amounts are not in dispute. Petitioner filed a lawsuit against the owner of the vehicle that struck him. The owner maintained a policy of bodily injury liability insurance, with policy limits of $250,000.00, which amount was paid to Petitioner. Thus, the lawsuit did not proceed to trial. In addition, Petitioner had available to him an uninsured/underinsured motorist policy with limits of $10,000.00 per person, which was paid to him. Finally, the vehicle owner agreed to pay an additional $30,000.00 to resolve all claims arising out of the accident. In all, Petitioner has received $290,000.00 due to the limited available insurance coverage and the financial resources of the at-fault party. The settlement does not compensate Petitioner for the total value of his damages. The moneys are not differentiated, that is, apportioned to specific types of damages, such as economic or non-economic, past or future. Respondent contends it should be reimbursed for Medicaid expenditures on behalf of Petitioner pursuant to the formula set forth in section 409.910(11)(f). Under the formula, the lien amount is computed by deducting a 25 percent attorney's fee ($72,500.00) and taxable costs ($689.12) from the $290,000 recovery, which yields a sum of $216,810.88. This amount is then divided by two, which yields $108,405.44. Under the statute, Respondent is limited to recovery of the amount derived from the statutory formula or the amount of the lien, whichever is less. The parties agree that the application of the formula in section 409.910(11)(f) to the entire proceeds yields $102,398.81, or the full amount of the lien. Pursuant to section 409.910(17)(b), which provides that a Medicaid recipient has a right to rebut the default allocation described above, Petitioner asserts that reimbursement for past and future medical expenses should be limited to the same ratio as his recovery amount is to the total value of damages. This theory relies upon establishing the full or total value of damages to the injured party. Full damages include past and future economic losses and past and future non-economic damages. Although Respondent contends that insufficient proof has been submitted, the use of this theory is not in dispute. Under this theory, Petitioner asserts the full value of damages suffered by him is $15,725,384.00, of which past and future medical expenses comprise $1,519,792.31, or 9.67 percent of total damages. That percentage of the settlement amount of $290,000.00 is $28,043.00, which Petitioner claims is due Respondent in satisfaction of the lien. The statute requires that Petitioner substantiate his position by clear and convincing evidence. Petitioner's counsel presented fact and opinion testimony on the issue of valuation of damages. Counsel has been practicing for 25 years and tried dozens of jury and bench trials, focusing primarily in civil trial law. He has handled numerous personal injury cases in the seven-figure range, including his most recent trial that resulted in a $3.1 million judgment. In forming his opinions, counsel relied on peer- reviewed studies, government studies, a damage evaluation by the at-fault party's counsel, and his personal experience in valuation of damages in personal injury suits. Except for the damage evaluation by the at-fault party's counsel, none of these materials, all hearsay, were offered in evidence. After the accident, Mr. Hopper moved to his parents' home. This required extensive modifications for his needs and convenience, such as installing an ADA-accessible bathroom, building a new room at ground level to serve as his bedroom, and installing a lift that allows him to access other areas of the home that are above ground level. Also, it was necessary to install paddles on Petitioner's motor vehicle which allows him to drive. According to counsel's testimony, these modifications cost "$50,000, or so." Given the extensive modifications described above, a cost of $50,000.00 is not an unreasonable amount, is credible, and is hereby accepted. The parties agree that lost earnings and lost earning capacity should be included in Mr. Hopper's damages. He was employed full-time in the construction industry as a carpenter just prior to the accident. To increase his income, he also worked weekends as a window installer, a food service helper, and a bouncer at a local bar. The testimony reflects that his wages were in the $10.00 to $20.00 per hour range. He has not returned to gainful employment since the date of the injuries. At $10.00 per hour, for 40 hours per week, which represents the minimum hourly range that he earned, for the three years post injury, Mr. Hopper's loss is $63,400.00. This amount is a conservative estimate of lost earnings over the last three years, is reliable and persuasive, and is hereby accepted. Lost earning capacity is the difference between what Mr. Hopper would have earned, and what he can now earn. On this issue, the record shows that Mr. Hopper has extremely serious spinal cord injuries, but there is no credible evidence that he cannot work again in some capacity during his expected life span. According to counsel's testimony, the national average hourly wage is $24.05. Counsel explained that he arrived at this amount by "tak[ing] everyone's wages, you know, people that are making substantial salaries and people who are making minimum wage, and we dump them all together and we come up with a national average. That's what the national worker's average is." He further testified that in his most recent trial, "the jury went with that figure one hundred percent." A work-life expectancy of 41 years was then assumed, when Mr. Hopper reaches the normal retirement age of 67, resulting in future loss of earning capacity of $2,050,984.00. Respondent did not suggest an alternative number, simply arguing in its PFO that no damages for lost earning capacity can be found, as Petitioner now performs minor household projects that entail some skill and labor. The undersigned finds there is less than clear and convincing evidence to support the national average hourly wage used by counsel or his assumption that Petitioner will be unable to work at any time during his expected life span. This element of damages is accordingly rejected. The parties agree that future medical expenses should also be included in the full value of damages. Petitioner's counsel opined that "roughly $27,500 per year" for 51.5 years (the estimated remaining life expectancy of Mr. Hopper based on Social Security Administration actuarial numbers), or a total of $1,416,250.00, should be considered the future medical expenses. In formulating this opinion, counsel relied on research performed by the United States Department of Veterans Affairs for paraplegics who have incomplete motor function at any level, such as Mr. Hopper. He also relied on two peer review studies performed by the private sector in 1997 and 2009 that corroborate the government research. The proposed amount is credible, reasonable, and persuasive and has been accepted. Future non-medical expenses should likewise be included in the full value of damages. These expenses cover such things as renovations to make future homes accessible, special equipment such as wheelchairs, lifts, bathroom bars, and modifications to motor vehicles so that he can drive. Relying on "studies that are done at [unnamed] universities," counsel testified that "the best information that [he has] available" is an average cost of $5,500.00 per year, for 51.5 years, or a total of $283,250.00. There is less than clear and convincing evidence to support this element of damages, and the claim for future non-medical expenses has been rejected. Mr. Hopper now lives with his parents. It is not unreasonable to assume that he will outlive his parents and require long-term care for the last 21 and one-half years of his life expectancy. Counsel opined that a conservative estimate of those expenses is $1,000.00 per month, or an additional $258,000.00. The undersigned has accepted this testimony as credible, persuasive, and reliable. Past and future non-economic damages, which include damages for pain and suffering, mental anguish, and the loss of capacity for the full enjoyment of life, are a more difficult item to estimate. Petitioner's counsel testified that a jury typically awards a larger amount for past non-economic damages during the acute phase of the injury, that is, the first years after the injury, but a lesser amount per year going forward in the future. Based on his experience trying personal injury cases, counsel opined that, given the nature of the injuries, an award of $500,000.00 per year for each of the three years since the accident, or a total of $1,500,000.00, would be an appropriate amount. The undersigned finds this amount for past non-economic damages is credible and persuasive and is hereby accepted. Based on numerous cases that he has tried to verdict, the number of multiple eight-figure verdicts handed down over the last ten years in Pinellas County (where Petitioner resides), and Mr. Hopper's life expectancy of 51.5 years, counsel opined that a jury would award at least $10 million for future non-economic damages. The undersigned finds this amount to be credible and persuasive and is hereby accepted. In summary, by clear and convincing evidence, Petitioner has demonstrated that the full value of his damages is $13,287,650.00 consisting of the following: past economic losses of $50,000.00 for extensive modifications to his parent's home and his vehicle; future damages for medical expenses totaling $1,416,250.00 (comprised of $27,500.00 per year times 51.5 years); future assistance damages totaling $258,000.00 (consisting of $1,000.00 per month times 21.5 years); past lost earnings of $63,400.00; past non-economic damages in the amount of $1,500,000.00 ($500,000.00 per year for three years); and future non-economic damages totaling $10,000,000.00. Of his total damages, the past and future medical expenses comprise $1,519,792.31 ($102,398.31 Medicaid lien, $1,143.50 paid by the Brain and Spinal Cord Injury Program, and $1,416,250.00 in future medical expenses). As such, the past and future medical expenses equal 11.4 percent of the total damages. When applying that factor to the total settlement, $33,060.00 of the settlement represents past and future medical expenses. Respondent is entitled to recover that amount.
The Issue The issue is the amount payable to Respondent, Agency for Health Care Administration ("Respondent" or "AHCA"), in satisfaction of Respondent's Medicaid lien from a settlement received by Petitioners, from a third party, pursuant to section 409.910, Florida Statutes (2016).
Findings Of Fact On June 4, 2015, at approximately 11:36 p.m., Rodriguez- Gomez was struck by a car while lawfully walking across the street at the intersection of Hollywood Boulevard and North 62nd Avenue in Hollywood, Florida. During the accident, Rodriguez-Gomez suffered catastrophic physical and neurological injuries. Rodriguez- Gomez's injuries included an open skull fracture, left pelvis fracture, and right fibula and tibia fractures. He was transported to the hospital where he underwent extensive medical intervention to save his life. On June 11, 2015, seven days after the accident, Rodriguez-Gomez died as a result of his injuries. Rodriguez-Gomez was survived by his three adult sons and three minor children. Rodriguez-Gomez's medical care related to his injury was paid by Medicaid, and the Medicaid program provided $49,115.61 in benefits associated with his injury. The $49,115.61 represented the entire claim for past medical expenses. Rodriguez-Gomez's funeral bill totaled $3,250.00 and was paid by his surviving children. Armando Rodriguez-Gomez was appointed the personal representative of the Estate of Santos Rodriguez-Gomez ("Estate"). Armando Rodriguez-Gomez, as personal representative ("Personal Representative") of the Estate, brought a wrongful death action to recover both the individual statutory damages of Rodriguez-Gomez's six surviving children, as well as the individual statutory damages of the Estate against the driver and owner ("Defendant") of the vehicle that caused the accident. Joseph Abdallah ("Abdallah"), a civil trial attorney with the law firm of Kanner & Pintaluga in Boca Raton, Florida, represented the Personal Representative and Estate in the wrongful death action. During the pendency of the wrongful death action, AHCA was notified of the action, and AHCA asserted a $49,115.61 Medicaid lien against the Estate cause of action and settlement of that action. The Personal Representative, on behalf of Rodriguez- Gomez's six surviving children, as well as on behalf of the Estate, compromised and settled the wrongful death action with Defendant for the available insurance policy limits of $100,000.00. By letter, Abdallah as the Estate's attorney handling the wrongful death claim notified AHCA of the settlement. The letter requested that AHCA advise as to the amount AHCA would accept in satisfaction of the $49,115.61 Medicaid lien. AHCA has neither filed an action to set aside, void, or otherwise dispute the wrongful death settlement nor started a civil action to enforce its rights under section 409.910. AHCA, through its Medicaid program, spent $49,115.61 on behalf of Rodriguez-Gomez, all of which represents expenditures paid for Rodriguez-Gomez's past medical expenses. No portion of the $100,000.00 settlement represents reimbursement for future medical expenses. The taxable costs incurred in pursuing Defendant totaled $2,086.68. The formula at section 409.910(11)(f), as applied to the entire $100,000.00 settlement, requires payment of $36,456.66 and AHCA is demanding payment of $36,456.66 from the $100,000.00 settlement. Petitioners have deposited the section 409.910(11)(f) formula amount in an interest-bearing account for the benefit of AHCA, pending an administrative determination of AHCA's rights; and this constitutes "final agency action" for purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17). At the final hearing, Petitioners presented, without objection, the expert valuation of damages testimony of Abdallah. Abdallah is a trial attorney in both Florida and New York who practices exclusively personal injury law and handles cases involving wrongful death, catastrophic injury, and other types of negligence involving injury. Abdallah's expertise also encompasses evaluation of personal injury cases based on staying abreast of all State of Florida jury verdicts. At hearing, Abdallah explained that he served as lead counsel during Petitioners' proceeding, and, during his representation of the Estate, he met with the Personal Representative numerous times and reviewed Rodriguez-Gomez's accident report and medical records before he filed the lawsuit and amended complaint in this matter. Abdallah testified that Rodriguez-Gomez had a very close relationship with his children. Abdallah credibly explained the process he took to develop an opinion concerning the value for the damages suffered in this case. He started by looking at the wrongful death statute, section 768.21, Florida Statutes, to determine what damages could be recovered. Petitioners established through unrebutted testimony of their trial attorney and expert witness that personal injury actions can be grouped in the following categories: medical expenses; net accumulations; funeral expenses; loss of parental companionship and instruction; and mental pain and suffering. Abdallah testified that since Rodriguez-Gomez was a day laborer, there was not a claim for net accumulations of the Estate. He concluded that the compensable damages were limited to past medical expenses, loss of parental companionship, instruction, guidance, and mental pain and suffering from the date of the injury for each of the six sibling children. Abdallah evaluated jury verdicts of recent cases involving wrongful death and surviving children to determine what the valuation of the claim for the loss of parental companionship, instruction, guidance, and mental pain and suffering would be for Rodriguez-Gomez's six surviving children. Abdallah also researched circuit court cases to determine appropriate allocation amounts for Medicaid liens. At hearing, Abdallah testified specifically about two comparable jury verdicts involving wrongful death and surviving children that he researched and used to support his valuation, Melissa Corsini, Individually and as Personal Representative of the Estate of Andrew Corsini, Jr., Deceased v. Carlos Riol, Case 09-5397-CA, 11FJVR 3-3, 2011 WL 845897 (Fla. Cir. Ct. Collier Jan. 13, 2011)1/; and Thomas Christopher Heike v. Sr. Singh Enterprises, LLC., Case No. CACE 16011472, 28 Fla. JVRA 3:22, 2017 WL 9286313 (Fla. Cir. Ct. Broward Nov. 26, 2017),2/ circuit court orders that were entered regarding allocation regarding Medicaid liens. In Corsini, each surviving child received $460,000.00 and in Heike each surviving child received $500,000.00 for their damages associated with their father's death. Abdallah's review of comparable jury verdicts revealed that each of Rodriguez- Gomez's six children's claim for losses associated with their father's death would have a very conservative value between $200,000.00 and $800,000.00 each. Abdallah also round-tabled the cases with other experienced attorneys and partners in his law firm to determine the value, and they each agreed that the $200,000.00 to $800,000.00 is a conservative valuation to use for each of the surviving children when determining the value of the Estate's wrongful death case. Based on his review to determine the value of Petitioners' claim, Abdallah credibly and persuasively put all the numbers together and opined that the valuation of the Estate's damages of $49,115.61 paid by Medicaid and the six surviving children's damages of $200,000.00 to $800,000.000 each totaled conservatively $1,200,000.00 to $4,800,000.00, and the conservative total value of all damages recoverable in the wrongful death lawsuit is $1,249,115.61 to $4,849,115.61. Abdallah testified that $1,249,115.61 is the conservative value to use for the damages. Abdallah's compelling and credible testimony further explained that the $100,000.00 settlement constituted a recovery of approximately eight percent of the $1,249,115.61 value of the damages. Abdallah determined that eight percent should be applied to each damage category and should be reduced based on the ultimate settlement. He then went on to apply the eight percent to the total medical expenses that were paid and further testified that a recovery of $3,929.25 in past medical expenses is eight percent of the $49,115.61 claim for past medical expenses. Abdallah's testimony was credible, persuasive, and is accepted. The evidence demonstrates that the total value of the damages related to Rodriguez-Gomez's injury was $1,249,115.61 and that the settlement amount, $100,000.00 was eight percent of the total value. The $100,000.00 settlement does not fully compensate Petitioners for the total value of their damages. Petitioners have established that the $100,000.00 settlement amount is eight percent of the total value ($1,249,115.61) of Petitioners' damages. Using the same calculation, Petitioners correctly showed that eight percent of $49,115.61 (Petitioners' amount allocated in the settlement for past medical expenses), $3,929.25, should be the portion of the Medicaid lien paid. Petitioners proved by a preponderance of the evidence that Respondent should be reimbursed for its Medicaid lien in a lesser amount than the amount calculated by Respondent pursuant to the formula set forth in section 409.910(11)(f).
The Issue The issue to be determined is the amount to be reimbursed to Respondent, Agency for Health Care Administration (Respondent or AHCA), from settlement proceeds received from third parties by Petitioners, Ray A. Siewert and Rose E. Siewert, for medical expenses paid on behalf of Petitioner, Mr. Siewert.
Findings Of Fact Stipulated Findings of Fact On October 15, 2017, the Siewerts were involved in a motorcycle versus automobile crash, which required extensive hospital, skilled nursing, therapy, and other medical treatment including, but not limited to, a four- level spinal fusion procedure and rehabilitative care and services for Mr. Siewert and multiple leg surgeries for Mrs. Siewert, that ultimately led to an above-the-knee amputation (hereinafter referred to as the “auto claims”). On January 3, 2018, Mr. Siewert was discharged from a rehabilitation facility to his home, where he began receiving home health nursing, physician, and therapy services. On January 22, 2018, Mr. Siewert was diagnosed with an abscess near his surgical site, which was allegedly not properly addressed in the days that followed. On January 31, 2018, Mr. Siewert was hospitalized due to worsening neurological deficits, namely in his lower body, and he was transferred to the hospital that had performed his prior spinal surgery. On February 1, 2018, Mr. Siewert had another spinal surgery to address an abscess compressing on his spinal cord, leading to the decreased neurological function. The damage done to his spinal cord preoperatively was significant enough that he has been unable to walk since January 31, 2018, and remains bedbound to present. Mr. Siewert has a neurogenic bladder/bowel, wears diapers, has to be catheterized multiple times per day,1 and is unable to ambulate. To date, he is living with his wife in a single room residence at a skilled nursing facility in the Orlando area, where he is expected to remain.2 The Siewerts brought the following claims: negligence claims relating to the auto claims; nursing home neglect claims under chapter 400, Florida Statutes; and medical malpractice claims under chapter 766, Florida Statutes, each of which were pursued against several companies/entities, individuals, and healthcare providers, seeking, in part, compensable damages to the Siewerts for past bills and future economic needs as well as noneconomic mental pain and suffering and consortium claims for their injuries and losses. In April 2021, the Siewerts settled one of the medical malpractice claims for a limited confidential amount. The Siewerts have had a health plan with Aetna Better Health of Florida, which is a Medicaid plan through AHCA, that has retained the services of Equain relating to the settlement of part of the Siewerts’ medical malpractice claims (referred to below as “Aetna”). Aetna was properly notified of the Siewert’s medical malpractice claims against those defendants and indicated it had paid benefits related to the injuries from the incident in the amount of $75,923.82, as it relates to the settlement at issue. Through their counsel, the Siewerts have asked Aetna to accept a reduced lien amount given the other claims still pending and large 1 The evidence adduced at hearing indicates that Mr. Siewert has now been fitted with a permanent abdominal suprapubic catheter. 2 Though Mrs. Siewert could manage in an assisted living facility, Mr. Siewert could not. Thus, Mrs. Siewert has chosen to stay in the skilled nursing facility to be with her husband. total case value. Nonetheless, Aetna has continued to assert a lien, for the amount of $75,923.82, against the Siewerts’ settlement proceeds relating to the single settlement. Aetna has maintained that it is entitled to application of section 409.910’s formula to determine the lien amount. Applying the statutory reduction formula to this particular settlement would result in no reduction of this lien given the amount of the settlement. The Siewerts also have been covered by AHCA’s fee-for-service Medicaid program. AHCA has contracted with Health Management Systems and Conduent to run its recovery program. AHCA was properly notified of the Siewerts’ medical malpractice claims against those defendants. AHCA provided medical assistance benefits related to the injuries from the incident in the amount of $33,836.09. Through their counsel, the Siewerts have asked AHCA to accept a reduced lien amount. AHCA has continued to assert a lien for the amount of $33,836.09, against the Siewerts’ settlement proceeds relating to the single settlement. AHCA has maintained that it is entitled to application of section 409.910’s formula to determine the lien amount. Applying the statutory reduction formula to this particular settlement would result in no reduction of this lien given the amount of the settlement. AHCA’s $33,836.09 payment and Aetna’s $75,923.82 payment total $109,759.91, and this amount constitutes Mr. Siewert’s claim for past medical expense damages. There remain claims against numerous other defendants which also relate to the AHCA and Aetna liens at issue, including all remaining defendants in the auto and medical malpractice claims. Repayment to AHCA’s Medicaid program is prioritized by law and contract over Medicaid-managed care plans Facts Adduced at Hearing During the pendency of the medical malpractice action, AHCA was notified of the action. AHCA did not commence a civil action to enforce its rights under section 409.910, nor did it intervene or join in the medical malpractice action against the Defendants. AHCA has not filed a motion to set aside, void, or otherwise dispute the settlement. The Medicaid program, through AHCA, spent $33,836.09 on behalf of Mr. Siewert, all of which represents expenditures paid for past medical expenses. No portion of the $33,836.09 paid by AHCA through the Medicaid program on behalf of Mr. Siewert represented expenditures for future medical expenses. The $33,836.09 in Medicaid funds paid by AHCA is the maximum amount that may be recovered by AHCA. There was no evidence of the taxable costs incurred in securing the settlement. Application of the formula at section 409.910(11)(f) to the settlement requires payment to AHCA of the full $33,836.09 Medicaid lien asserted by AHCA, and the full $75,923.82 Medicaid lien asserted by Aetna. Petitioners have deposited the full Medicaid lien amount in an interest-bearing account for the benefit of AHCA pending an administrative determination of AHCA’s rights, and this constitutes “final agency action” for purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17). There was no suggestion that the monetary figure agreed upon by the parties represented anything other than a reasonable settlement. The evidence firmly established that Mr. Siewert incurred economic damages, consisting of lost future earnings, past medical expenses, and future medical expenses. Mr. Gilbert and Mr. Marx testified that those economic damages totaled roughly $2,000,000. However, the economic loss analysis upon which their testimony was based showed a total of $1,770,775 in future life care needs for Mr. Siewert, reduced to present value.3 The only direct evidence of past medical expenses was the $109,759.91 in Medicaid expenditures. There was no evidence of other economic damages. Thus, the evidence established that economic damages total $1,880,534.90. The total amount of damages for Mr. Siewert was calculated to be $10,000,000, which was described as a conservative figure based on the knowledge and experience of Mr. Gilbert and Mr. Marx, and based on an analysis of representative jury verdicts involving comparable facts and damages. However, Mr. Gilbert engaged in a more detailed analysis of Mr. Siewert’s non-economic damages, which requires review. Although comparable jury verdicts suggest that it could be considerably more, Mr. Gilbert testified that his calculation, though subjective, would include $3,000,000 in non-economic damages in the past three years, and an additional $4,000,000 in non-economic damages into the future based upon a projected 12-year life expectancy, for a total amount of non-economic damages of $7,000,000. That figure was accepted by both of the testifying experts. As part of Petitioners’ calculation of the total value of the claim was $1,000,000 in loss-of-consortium damages incurred by Mrs. Siewert. Although the loss of consortium technically applies to the loss of the full marital relationship previously enjoyed by Mrs. Siewert, who is not the Medicaid recipient, that value was included as an element of the claim and settlement. Based on the forgoing, the evidence supports, and it is found that $9,880,534.90, as a full measure of Petitioners’ combined damages, is a conservative and appropriate figure against which to calculate any lesser 3 Respondent objected to the life care plan on the basis of hearsay. However, the plan was not being offered for the truth of the matter asserted, i.e., that Mr. Siewert would be expected to incur $1,770,775 for future care, but was offered as evidence of the more general value of a claim in litigation. Furthermore, the life care plan, even if inadmissible, could be used as support of an expert opinion as to claim valuation “when those underlying facts are of a type relied upon by experts in the subject to support the opinions expressed.” Charles W. Ehrhardt, Florida Evidence, § 704.1 (2020 Edition). A life care plan is evidence that, for that purpose, would “be sufficiently trustworthy to make the reliance reasonable.” Id. portion of the total recovery that should be allocated as reimbursement for the Medicaid lien for past medical expenses. The full value of the settlement is 5.06 percent of the $9,880,534.90 value of the claim.
