The Issue The issue is whether Respondent was an employee engaged in the construction industry and required to obtain workers' compensation insurance while working on the roof of the Myakka Animal Clinic and, if so, what penalty should be imposed.
Findings Of Fact On August 24, 1998, Petitioner's investigator observed Respondent working on the roof of the Myakka Animal Clinic in Venice, Florida. At the time, Respondent was regularly employed by Paradise Roofing, Inc., where he had an exemption from workers' compensation insurance coverage. He has never previously been guilty of a violation of the workers' compensation laws. The contract price was $800. However, the evidence is conflicting as to the identity of the party that entered into the contract with the Myakka Animal Clinic. The veterinarian testified that her understanding of the agreement was that Respondent was to do the work, but, if any problems arose, he was not alone, and she could go to Paradise Roofing, Inc., to ensure that the labor and materials were satisfactory. Although there are other indications in the record that Respondent may have been working on his own on this job, there is sufficient conflict in the evidence that Petitioner has failed to prove that Respondent was doing the job as a self- employed person, rather than an exempt employee of Paradise Roofing, Inc. Respondent's understanding of the contractual relationship carries less weight than the veterinarian's understanding of this relationship.
Recommendation It is RECOMMENDED that the Division of Workers' Compensation enter a final order dismissing the Notice and Penalty Assessment Order and any related stop work order. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 2nd day of April, 1999. COPIES FURNISHED: Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Mary Hooks, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Louise T. Sadler, Senior Attorney Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Eric Kristiansen 3750 Aba Lane North Port, Florida 34287
The Issue The amount to be paid by Petitioner, Sydney L. Cooper ("Petitioner") to Respondent, Agency for Health Care Administration ("AHCA"), out of the settlement proceeds, as reimbursement for past Medicaid expenditures pursuant to section 409.910, Florida Statutes.
Findings Of Fact On or about August 13, 2016, Petitioner, a Florida resident, suffered significant and debilitating injuries due to a motorcycle accident in Miami-Dade County, Florida. Petitioner was taken to Kendall Regional Medical Center ("Kendall Regional") in Miami immediately after the accident, where he received care and treatment from August 13, 2016, through October 13, 2016. Upon admission to Kendall Regional, Petitioner was diagnosed with an open fracture of the left tibia and fibula, multiple abrasions, altered mental status, pelvic fracture, pubic ramus fracture, fracture of the lumbar vertebra- -closed, scalp laceration, traumatic rupture of the bladder, ileum mesenteric tear, open fracture of the first metatarsal bone of the left foot, acute kidney injury, and depression determined by examination. Petitioner spent one month in the intensive care unit under critical care management. Petitioner had multiple surgeries as a result of the accident. In addition, his left foot is deformed, he is permanently disabled, is disfigured, has difficulty walking, and is unable to work. Petitioner is in frequent pain, is restricted in his daily activities, and requires assistance in his daily activities. A portion of Petitioner's medical care related to the injury was paid by AHCA through the Medicaid program and Medicaid, through AHCA, provided $177,564.47 in benefits. Petitioner brought a tort action against multiple defendants ("Defendants") to recover all of his damages. Because of a $1,000,000 single limit wasting policy on the most culpable defendant, in which $75,000 had already been spent for attorneys' fees, a competing wrongful claim against that defendant's policy limits during the policy period, and thin liability against the other defendants, Petitioner's action against the Defendants was settled for a confidential lump sum of $972,000. During the pendency of Petitioner's action against the Defendants, AHCA was notified of the action and AHCA asserted a $177,564.47 Medicaid lien against Petitioner's action and settlement of that action. The Medicaid program through AHCA spent $177,564.47 on behalf of Petitioner, all of which represents expenditures paid for Petitioner's past medical expenses. Another non-AHCA health care provider, Sunshine Health, provided $17,688.68 in past medical expenses on behalf of Petitioner. Petitioner's total past medical expenses by the time a demand letter was sent was $2,803,220. AHCA did not commence a civil action to enforce its rights under section 409.910 or intervene or join in Petitioner's action against the Defendants. AHCA has not filed a motion to set-aside, void, or otherwise dispute Petitioner's settlement. Application of the formula in section 409.910(11)(f) to Petitioner's $972,000 settlement requires payment to AHCA of the full $177,564.47 Medicaid lien. At the hearing, Petitioner presented the testimony of attorney Bradley Winston. Mr. Winston represented Petitioner throughout the underlying action against the Defendants. Mr. Winston has been an attorney since 1988. Over the past 30 years, Mr. Winston has been a plaintiff's trial lawyer in Davey, Florida, with a substantial portion of his practice devoted to personal injury cases, including roadway defect and product liability litigation. He is the owner of Winston Law Firm and AV rated by Martindale-Hubbell. Mr. Winston has been a board-certified civil trial lawyer since 1997. He is a member of numerous trial attorney associations and has held leadership positions in several associations. As a routine part of his practice, Mr. Winston makes assessments concerning the value of damages suffered by his clients. Mr. Winston was familiar with the circumstances surrounding Petitioner's injury and claims and gave a detailed explanation of them. Mr. Winston reviewed Petitioner's life care plan and vocational rehabilitation report, which details Petitioner's future medical needs and lost future earnings. The economist placed the present value of Petitioner's future medical expenses at $2,551,539.94. Mr. Winston further testified that Petitioner's lost future earnings are $974,958 and his past lost wages are $7,127. According to Mr. Winston, the past medical expenses of $2,803,220 would also be added to arrive at the full value of Petitioner's economic damages in excess of $6,000,000. Mr. Winston testified that in addition to economic damages, a jury would also be asked to assign a value to past and future noneconomic damages (i.e., pain and suffering and loss of enjoyment of life). Mr. Winston persuasively and credibly testified that the total value of all of Petitioner's damages would be in the range of $12,000,000 to $13,000,000, and that valuing Petitioner's damages at $10,000,000 is a very conservative and low valuation of his damages. Mr. Winston persuasively and credibly testified that the $972,000 settlement did not fully compensate Petitioner for the full value of his damages. Mr. Winston testified that based on a conservative value of all of Petitioner's damages of $10,000,000, the $972,000 settlement represents a recovery of 9.72 percent of the full value of his damages. Mr. Winston further testified that because Petitioner only recovered in the settlement 9.72 percent of the full value of his damages, he only recovered 9.72 percent of AHCA's $177,564.47 Medicaid lien, or $17,259.26. Mr. Winston testified that it would be reasonable to allocate $18,987.61 (9.72 percent of the sum of AHCA's $177,564.47 Medicaid Lien and Sunshine Health's $17,688.68 Medicaid lien)(9.72 percent of $195,253.15) of the settlement to past medical expenses paid by AHCA through the Medicaid program.1/ Mr. Winston's testimony regarding the reasonableness of the allocation is consistent with the allocation set forth in the confidential Settlement Agreement and Global General Release entered into between Petitioner, his wife, and the private defendants in October 2018. As set forth on pages six and seven of that document: SYDNEY COOPER is recovering in this settlement 9.72% of their claim for past medical expenses. SYDNEY and NOVELETTE COOPER'S past medical special damages which they are currently responsible and could claim as damages in his tort case, total $195,253.15 as of 8/24/2018. Hence, the Nine Hundred and Seventy-Two Thousand Dollar ($972,000.00) combined global settlement of SYDNEY and NOVELETTE COOPER's claims results in an allocation of $18,987.61 toward his claim for past medical expenses. This amount ($18,987.61) represents 9.72% of SYDNEY and NOVELETTE COOPER's past medical special damages. Therefore, $18,987.61 of this combined global settlement is allocated to past medical expenses, and the remainder of the settlement is allocated to the satisfaction of claims other than past medical expenses. The above allocation for money for past medical damages is a reasonable and proportionate allocation based upon the injuries suffered, damages sustained, amount of the combined global settlement, and facts of this case. While this allocation to past medical expenses is not binding on third- parties, including but not limited to the Defendants/Releasees herein, it is intended that this allocation be prima facie proof of the portion of this settlement allocated to SYDNEY COOPER'S claim for past medical expenses. A separate Addendum A to Release of All Claims as to a public defendant was executed by Petitioner and his wife on October 8, 2018, which similarly provided: SYDNEY COOPER is recovering in this settlement 9.72% of their claim for past medical expenses. SYDNEY and NOVELETTE COOPER'S past medical special damages which they are currently responsible and could claim as damages in his tort case, total $195,253.15 as of 8/24/2018. Hence, the Nine Hundred and Seventy-Two Thousand Dollar ($972,000.00) combined global settlement of SYDNEY and NOVELETTE COOPER's claims results in an allocation of $18,987.61 toward his claim for past medical expenses. This amount ($18,987.61) represents 9.72% of SYDNEY and NOVELETTE COOPER's past medical special damages. Therefore, it is agreed that $18,987.61 of this combined global settlement is allocated to past medical expenses, and the remainder of the settlement is allocated to the satisfaction of claims other than past medical expenses. The above allocation for money for past medical damages is a reasonable and proportionate allocation based upon the injuries suffered, damages sustained, amount of the combined global settlement, and facts of this case. While this allocation to past medical expenses is not binding on third- parties, it is intended that this allocation be prima facie proof of the portion of this settlement allocated to SYDNEY COOPER'S claim for past medical expenses. AHCA was not a party to the settlement agreements and releases entered into between Petitioner, his wife, and the Defendants, and AHCA is not bound by the terms of the settlement agreements and releases. Petitioner also presented the expert testimony of attorney Diana Santa Maria. Without objection, Ms. Santa Maria was accepted as an expert in the valuation of damages suffered by injured parties. Ms. Santa Maria has been an attorney since 1985. Since 1985, Ms. Santa Maria has been a plaintiff's trial lawyer, with a substantial portion of her practice devoted to personal injury cases. She is the managing attorney of the law firm of Diana Santa Maria, P.A., in Davey, Florida. Ms. Santa Maria is AV rated by Martindale-Hubbell, a certified Florida Supreme Court mediator, and former member of the Florida Supreme Court Judicial Nominating Commission. She is on the Florida Bar Board of Governors for the Seventeenth Judicial Circuit. She is a member of numerous trial attorney associations and has held leadership positions in several associations. As a routine part of her practice, Ms. Santa Maria makes assessments concerning the value of damages suffered by her clients, which includes damages similar to those involving Petitioner. Ms. Santa Maria reviewed the life care plan and vocational rehabilitation report, photographs, Petitioner's demand, closing statement, and the United States Supreme Court's decision in Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006). Ms. Santa Maria testified, consistent with the testimony of Mr. Winston, that the total value of Petitioner's economic damages exceeds $6,000,000. Ms. Santa Maria further testified that Petitioner's claim for noneconomic damages would be approximately $6,000,000 ($1,500,000 for past pain and suffering and $4,500,000 for future pain and suffering). Ms. Santa Maria persuasively and credibly testified that the total value of all of Petitioner's damages would be in excess of $12,000,000, and that valuing Petitioner's damages at $10,000,000 is a very conservative and low valuation of his damages. Ms. Santa Maria testified that Mr. Winston's method of allocating past medical expenses in this case is reasonable and consistent with the Supreme Court's opinion in Ahlborn. AHCA did not call any witnesses, present any evidence as to the value of damages, or propose a different valuation of damages. Mr. Winston's and Ms. Santa Maria's testimony regarding the total value of Petitioner's damages was credible, unrebutted, and unimpeached. However, AHCA successfully contested the methodology used to calculate the allocation to past medical expenses based on Mr. Winston's and Ms. Santa Maria's failure to include the total past medical expenses of $2,803,220 in applying the ratio. Accordingly, Petitioner proved by a preponderance of the evidence that 9.72 percent is the appropriate pro rata share of Petitioner's past medical expenses to be applied to determine the amount recoverable by AHCA in satisfaction of its Medicaid lien. However, total past medical expenses is the sum of AHCA's lien in the amount of $177,564.47, Sunshine Health's lien in the amount of $17,688.68, and other past medical expenses, which altogether total $2,803,220. Accordingly, following the methodology of Mr. Winston and Ms. Santa Maria and applying the $10,000,000 valuation to the proper total amount of past medical expenses of $2,803,220, the settlement portion properly allocable to Petitioner's past medical expenses to satisfy AHCA's lien is the full amount of AHCA's lien in the amount of $177,564.47 ($2,803,220 x 9.72 percent= $272,472.98).
The Issue Should Petitioner Alma Slocum receive either the Option 3 or Option 4 retirement benefits retroactive to the death of Clyde Slocum in March 1975?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Clyde Slocum (Slocum), deceased, was a member of the State and County Officers Retirement System (SCOERS) under Chapter 122, Florida Statutes. Slocum was employed by the Suwannee County School Board as a school bus driver until he became physically unable to work in June 1970. Slocum married Alma Sanchez in October 1934, and was continuously married to her until his death on March 30. 1975. By letter dated May 6, 1968, Slocum made an inquiry to the Division regarding the benefits he would be eligible for if he retired from his employment as a school bus driver with the Suwannee County School Board. Slocum noted in the letter that he was not ready to quit work but wanted to know what benefits would be available, if and when he retired. The Division, by letter dated June 20, 1968, notified Slocum of the amount of his contributions on file and the benefits he would be eligible for under Options 1 through 4. It was pointed out that Options 3 and 4 would provide a smaller monthly benefit. However, these options would provide survivor benefits for his wife. It was also stated that proof of age for Slocum and his wife, Alma Slocum, would be required, if he selected Option 3 or 4. The following information was provided to Slocum: (a) Option 1 would provide $43.60 a month, but upon his death, no further benefits would be paid; (b) Option 2 would be 13 cents lower at $43.47, but in the event he died, his beneficiary would receive any balance of the amount of his contribution ($1,006.81) not paid; (c) Option 3 would provide a reduced monthly payment of $35.58 and one-half of that amount ($17.79) to his wife upon his death; and (d) Option 4 would provide for a payment of $30.08 and the same benefit to the wife upon his death. By letter dated August 5, 1970, Lavada Reuthinger, daughter of Slocum, sought information on the three different ways that Slocum could receive his retirement benefits. By letter dated August 7, 1970, Elizabeth Smith, Supervisor, Benefits Section, notified Slocum of the availability of an option election that would provide benefits for his wife after his death. The letter also notified Slocum that proof of his age was required, and if he chose benefits for his wife, then proof of her age was required as well. An estimate, dated September 22, 1970, of benefit amounts, similar to the estimate sent to Slocum in 1968, was prepared by the Division, and sent to Slocum. This estimate of benefits was for Options 1 an 2 only, and did not set forth a benefit amount for Options 3 and 4. The letter stated: "Only the first two options apply in your case." Apparently, the Division assumed that Slocum was retiring under disability. By letter dated October 2, 1970, the Division was notified by Dr. G. L. Emmel that Slocum was disabled and was not able to work. Elizabeth Smith notified Dr. Emmel of the statutory language requirement for an application for disability. Using a form provided by the Division, Slocum, on October 10. 1970, also under the assumption that he was retiring on disability, elected to receive benefits under Option 2. At this point, Slocum had been advised by the Division that neither Option 3 or Option 4 were available to him. Dr. Emmel provided the Department with the requested documentation that Slocum was permanently disabled. On October 26, 1970, Elizabeth Smith requested that Slocum submit proof of his age. By letter dated November 13, 1970, Elizabeth Smith advised Slocum that he had failed to furnish proof of his age, but instead he had furnished his wife's birth certificate. Slocum's wife's birth certificate was returned by letter dated November 13, 1970. By letter dated November 21, 1970, Elizabeth Smith advised Slocum that he could not retire under disability because he had reached normal retirement age, but that he could retire under Option 3 or Option 4 which would provide monthly payments to his wife upon his death, if he accepted a reduction in the amount of benefits. Smith further advised Slocum that he would need to furnish proof of his wife's age if he selected Option 3 or Option 4. Smith further stated that: "It was thought you were retiring under disability when proof [of your wife's age] was returned to you." Smith also advised Slocum that if he waited until June 30, 1970, he would receive the five-year average. The letter does not indicate what the payment amounts would be for the four different options, and the letter does not indicate that a option election form was included with the letter. Furthermore, the letter does not refer to the Option 2 selection form that Slocum had previously submitted to the Division. Slocum responded to Smith's letter on November 30, 1970, and enclosed a copy of his wife's birth certificate. Slocum also requested "the necessary forms concerning his retirement." Additionally, he notified the Division that since he had not worked since June 1970 he wanted retirement benefits to be paid as soon as possible. The Division did not comply with Slocum's request for the "necessary forms concerning his retirement." A warrant was mailed to Slocum on December 31, 1970, for retirement benefits from July 1, 1970, through December 31, 1970, at $59.17 a month. This benefit amount was the Option 2 retirement benefit amount furnished to Slocum on September 22, 1970, by the Division when it was assumed that he was retiring under disability. No explanation was given to Slocum if, or that, the Division was using Option 2 benefit selection that Slocum had signed and submitted to the Division on October 1970, prior to the time the Division had notified Slocum that he could choose Option 3 or Option 4. Slocum and his wife were both under the impression that since Slocum had furnished the Division a copy of his wife's birth certificate that she would receive retirement benefits after his death. Slocum died on March 30, 1975, five years after he retired. The Division advised Alma Slocum by letter dated May 19, 1975, that her husband had retired under Option 2 and, therefore, no benefits would be paid to her. A copy of his option election and the computation of his monthly benefits were enclosed in the May 19, 1975, letter from the Division. Thereafter, Petitioner repeatedly inquired of the Division why she was not entitled to retirement benefits as Slocum's widow. These inquires were made from the time of Slocum's death in 1975 through the present. In response to each inquiry the Division replied that Slocum had selected Option 2, and no benefits were payable to Petitioner under that option. In February 1999, Petitioner and her granddaughter, Theresa L. Crosby, visited the Division's office in Tallahassee, Florida and reviewed Slocum's file. After they reviewed the file, it was their position that Petitioner was entitled to receive survivor benefits and made a demand on the Division for Petitioner to receive those benefits. At no time prior to February 1999, had the Division advised Petitioner that she was entitled to a formal hearing on the matter. A final agency action letter dated March 26, 1999, was mailed to Petitioner which pointed out that her husband elected and received Option 2 benefits from 1970 until his death in March 1975 and there was no provision under SCOERS, Chapter 122, Florida Statutes, to change the option choice at this time. This letter is the first written notice to Petitioner that she was entitled to request a formal hearing if she disagreed with the Division's decision. A Petition for Formal hearing contesting the Division's denial of a survivor's benefit for Petitioner was received by the Division on April 19, 1999. When Slocum made the selection for Option 2 retirement benefits he did so because he was advised by the Division that only Option 1 or Option 2 were available to him since he was retiring under disability. Once Slocum became aware that his wife could receive retirement benefits after his death, it is clear that he intended to select an option which would provide his wife with benefits after his death. Furthermore, after it was determined that he could not retire under disability, which had limited his options, the Division failed to give Clyde Slocum an opportunity to make a selection of the options offered for retirement benefits, either initially in writing or verbally by telephone with a follow-up written option, notwithstanding any testimony to the contrary which, lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a final order finding Alma Slocum eligible to receive retirement benefits under Option 3 retroactive to Clyde Slocum's death on March 30, 1975, making adjustments for the higher rate paid Clyde Slocum during the years 1970 through his death in 1975, and any adjustments for interest that may be applicable to the benefits paid Clyde Slocum or those benefits that should have been paid to Alma Slocum. DONE AND ENTERED this 29th day of December, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1999. COPIES FURNISHED: Sandra E. Allen, Esquire 314 West Jefferson Street Tallahassee, Florida 32301 Larry D. Scott, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue to be decided is the amount to be paid by Petitioner to Respondent, Agency for Health Care Administration ("AHCA"), out of her settlement proceeds, as reimbursement for past Medicaid expenditures pursuant to section 409.910, Florida Statutes.
Findings Of Fact On or about September 17, 2007, Alicia M. Fallon ("Alicia"), then 17 years old, drove to the mall to meet friends and became involved in an impromptu street race. Alicia lost control of the vehicle she was driving, crossed the median into oncoming traffic, and was involved in a motor vehicle crash. Her injuries consisted of traumatic brain injury ("TBI") with moderate hydrocephalus, right subdural hemorrhage, left pubic ramus fracture, pulmonary contusions (bilateral), and a clavicle fracture. Since the time of her accident, she has undergone various surgical procedures including the insertion of a gastrostomy tube, bilateral frontoparietal craniotomies, insertion of a ventriculoperitoneal shunt, and bifrontal cranioplasties. As a result of the accident, in addition to the physical injuries described above, Alicia suffered major depressive disorder, and Post-Traumatic Stress Disorder injuries. She is confined to a wheelchair for mobility, has no bowel or bladder control, and suffers from cognitive dysfunction. Alicia is totally dependent on others for activities of daily living and must be supervised 24 hours a day, every day of the week. A lawsuit was brought against the driver of the other car in the race, as well as the driver's mother, the owner of the vehicle. It could not be established that the tortfeasor driver hit Alicia's car in the race, or that he cut her off. The theory of liability was only that because Alicia and the other driver in the race were racing together, that the tortfeasor was at least partially responsible for what happened. It was viewed that there was no liability on the part of the driver of the third vehicle. The tortfeasor only had $100,000 in insurance policy limits, but the insurance company did not timely offer payment. The tortfeasor had no pursuable assets. The lawsuit was bifurcated and the issue of liability alone was tried. The jury determined that the tortfeasor driver was 40 percent liable for Alicia's damages. Because of the risk of a bad faith judgment, the insurance company for the tortfeasor settled for the gross sum of $2.5 million. AHCA, through its Medicaid program, provided medical assistance to Ms. Fallon in the amount of $608,795.49. AHCA was properly notified of the lawsuit against the tortfeasors, and after settlement, asserted a lien for the full amount it paid, $608,795.49, against the settlement proceeds. AHCA did not "institute, intervene in, or join in" the medical malpractice action to enforce its rights as provided in section 409.910(11), or participate in any aspect of Alicia's claim against the tortfeasors or their insurance company. Application of the formula at section 409.910(11)(f), to the settlement amount requires payment to AHCA in the amount of $608,795.49. Another provider, Optum, provided $592,554.18 in past medical expense benefits on behalf of Ms. Fallon. However, that amount was reduced through negotiation to a lien in the amount of $22,220.78.1/ Petitioner 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). Petitioner, Donna Fallon, the mother of Alicia, testified regarding the care that was and is continuing to be provided to Alicia after the accident. She is a single parent, and with only the assistance of an aide during the day, she is responsible for Alicia's care. Alicia must be fed, changed, bathed, and turned every few hours to avoid bed sores. Alicia can communicate minimally by using an electronic device and by making noises that are usually only discernable by her mother. Although she needs ongoing physical therapy and rehabilitation services, the family cannot afford this level of care. Petitioner presented the testimony of Sean Domnick, Esquire, a Florida attorney with 30 years' experience in personal injury law, including catastrophic injury and death cases, medical malpractice, and brain injury cases. Mr. Domnick is board certified in Civil Trial by the Florida Bar. He represented Alicia and her mother in the litigation against the tortfeasors and their insurance company. As a routine part of his practice, he makes assessments concerning the value of damages suffered by injured clients. He was accepted, without objection, as an expert in valuation of damages. Mr. Domnick testified that Alicia's injuries are as catastrophic as he has handled. Alicia has no strength, suffers contractions and spasms, and is in constant pain. Alicia has impaired speech, limited gross and fine motor skills, is unable to transfer, walk, or use a wheelchair independently. Alicia is unable to self-feed. All of her food must be cooked and cut up for her. Alicia is unable to perform self-hygiene and has no ability to help herself in an emergency and therefore requires constant monitoring. As part of his work-up of the case, Mr. Domnick had a life care plan prepared by Mary Salerno, a rehabilitation expert, which exceeded $15 million on the low side, and $18 million on the high side, in future medical expenses alone for Alicia's care. Mr. Domnick testified that the conservative full value of Alicia's damages was $45 million. That figure included $30 million for Alicia's pain and suffering, mental anguish and loss of quality of life, disability, and disfigurement, extrapolated for her life expectancy, plus the low end of economic damages of $15 million. Petitioner also presented the testimony of James Nosich, Esquire, a lawyer who has practiced primarily personal injury defense for 29 years. Mr. Nosich and his firm specialize in defending serious and catastrophic personal injury/medical malpractice cases throughout Florida. As part of his practice, Mr. Nosich has reviewed more than 1,000 cases of personal injury/medical malpractice cases and formally reported the potential verdict and full value to insurance companies that retained him to defend their insureds. Mr. Nosich has worked closely with economists and life care planners to identify the relevant damages of those catastrophically injured in his representation of his clients. Mr. Nosich has also tried over 30 cases in Broward County in which a plaintiff suffered catastrophic injuries similar to those of Alicia. Mr. Nosich was tendered and accepted, without objection, as an expert in the evaluation of damages in catastrophic injury cases. In formulating his expert opinion with regard to this case, Mr. Nosich reviewed: Alicia's medical records and expenses; her life care plan prepared by Ms. Salerno; and the economist's report. He took into consideration the reputation of Alicia's lawyer (Mr. Domnick); and the venue in which the case would be tried. Mr. Nosich opined that Broward County is known for liberal juries who tend to award high amounts in catastrophic cases. He also testified that Mr. Domnick is known as a lawyer with extreme capability and who has an excellent rapport with juries and the ability to get higher dollar verdicts. Mr. Nosich agreed with Mr. Domnick that the estimated $45 million figure for the total value of Alicia's case was conservative. He agreed with Ms. Salerno's estimated economic damages of $15 million and a doubling of that amount ($30 million) for Alicia's noneconomic damages. Mr. Nosich credibly explained that the $45 million total value was very conservative in his opinion based on Alicia's very high past medical bills and the fact that she will never be able to work. The testimony of Petitioner's two experts regarding the total value of damages was credible, unimpeached, and unrebutted. Petitioner proved that the settlement of $2.5 million does not fully compensate Alicia for the full value of her damages. As testified to by Mr. Domnick, Alicia's recovery represents only 5.55 percent of the total value of her claim. However, in applying a ratio to reduce the Medicaid lien amount owed to AHCA, both experts erroneously subtracted attorney's fees and costs of $1.1 million from Alicia's $2.5 million settlement to come up with a ratio of 3 percent to be applied to reduce AHCA's lien.2/ Further, in determining the past medical expenses recovered, Petitioner's experts also failed to include the Optum past medical expenses in the amount of $592,554.18. AHCA did not call any witnesses, present any evidence as to the value of damages, or propose a different valuation of the damages. In short, Petitioner's evidence was unrebutted. However, through cross-examination, AHCA properly contested the methodology used to calculate the allocation to past medical expenses. Accordingly, the undersigned finds that Petitioner has proven by a preponderance of the evidence that 5.55 percent is the appropriate pro rata share of Alicia's past medical expenses to be applied to determine the amount recoverable by AHCA in satisfaction of its Medicaid lien. Total past medical expenses is the sum of AHCA's lien in the amount of $608,795.49, plus the Optum past medicals in the amount of $592,554.18, which equals $1,201,349.67. Applying the 5.55 percent pro rata ratio to this total equals $66,674.91, which is the portion of the settlement representing reimbursement for past medical expenses and the amount recoverable by AHCA for its lien.
The Issue The issue is the amount of money, if any, that must be paid to the Agency for Health Care Administration (AHCA) to satisfy its Medicaid lien under section 409.910, Florida Statutes (2013).
Findings Of Fact Harry Silnicki, at age 52, suffered devastating brain injuries when a ladder on which he was standing collapsed. Mr. Silnicki, now age 59, has required, and will for the remainder of his life require, constant custodial care as a result of his injuries. He has been, and will be into the indefinite future, a resident of the Florida Institute of Neurological Rehabilitation (FINR) or a similar facility that provides full nursing care. Debra Silnicki is the wife and guardian of Mr. Silnicki. Mr. Silnicki, through his guardian, brought a personal injury lawsuit in Broward County, Florida, against several defendants, including the manufacturer of the ladder, the seller of the ladder, and two insurance companies (Defendants), contending that Mr. Silnicki's injuries were caused by a defective design of the ladder. The lawsuit sought compensation for all of Mr. Silnicki's damages as well as his wife's individual claim for damages associated with Mr. Silnicki's damages. When referring to the personal injury lawsuit, Mr. and Mrs. Silnicki will be referred to as Plaintiffs. During the course of the trial, before the jury reached its verdict, the Plaintiffs entered into a High-Low Agreement (HLA) with the Defendants by which the parties agreed that, regardless of the jury verdict, the Defendants would pay to the Plaintiffs $3,000,000 if the Plaintiffs lost the case, but would pay at most $9,000,000 if the Plaintiffs won the case. After a lengthy trial, on March 27, 2013, the jury returned a verdict finding no liability on the part of the manufacturer or any other defendants. Consequently, the jury awarded the Plaintiffs no damages. The Defendants have paid to the Plaintiffs the sum of $3,000,000 pursuant to the HLA (the HLA funds). The HLA constitutes a settlement of the claims the Plaintiffs had against the Defendants.1/ As shown in their Closing Statement (Petitioners' Exhibit 7), dated September 23, 2013, the Silnickis' attorneys have disbursed $1,100,000 of the HLA funds as attorney's fees and $588,167.40 as costs. The sum of $1,011,832.602/ was paid under the heading "Medical Liens/Bills to be Paid/Waived/Reduced by Agreement Pending Court Approval." Included in that sum were payments to Memorial Regional Hospital in the amount of $406,464.49 and a payment to FINR in the amount of $600,000.00. Also included was the sum of $245,648.57, which was to be deposited in an interest-bearing account. Subject to court approval, the Closing Statement earmarked, among other payments, $100,000 for a special needs trust for Mr. Silnicki and a $100,000 payment to Mrs. Silnicki for her loss of consortium claim. AHCA has provided $245,648.57 in Medicaid benefits to Mr. Silnicki. AHCA has asserted a Medicaid lien against the HLA funds in the amount of $245,648.57. As required by section 409.910(17)(a), the amount of the Medicaid lien has been placed in an interest-bearing account. The Closing Statement reflects that should Petitioners prevail in this proceeding by reducing or precluding the Medicaid lien, any amounts returned to Petitioners will be split 50% to FINR, 25% to attorney's fees, and 25% to the Petitioners. Section 409.910(11)(f) provides as follows: (f) Notwithstanding any provision in this section to the contrary, in 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 as defined by the Florida Rules of Civil Procedure, 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 or his or her legal representative shall be calculated at 25 percent of the judgment, award, or settlement. The parties stipulated that the amount of Petitioners' "taxable costs as defined by the Florida Rules of Civil Procedure" is $347,747.05. The parties have also stipulated that if the section 409.910(11)(f) formula is applied to the $3,000,000 settlement funds received by Mr. and Mrs. Silnicki, the resulting product would be greater than the amount of AHCA's Medicaid lien of $245,648.57. That amount is calculated by deducting 25% of the $3,000,000 for attorneys' fees, which leaves $2,250,000. Deducting taxable costs in the amount of $347,747.05 from $2,250,000 leaves $1,902,352.95. Half of $1,902,352.95 equals $951,176.48 (the net amount). The net amount exceeds the amount of the Medicaid lien. Section 409.910(17)(b) provides the method by which a recipient can challenge the amount of a Medicaid lien as follows: (b) A recipient may contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula specified in paragraph (11)(f) by filing a petition under chapter 120 within 21 days after the date of payment of funds to the agency or after the date of placing the full amount of the third-party benefits in the trust account for the benefit of the agency pursuant to paragraph (a). The petition shall be filed with the Division of Administrative Hearings. For purposes of chapter 120, the payment of funds to the agency or the placement of the full amount of the third-party benefits in the trust account for the benefit of the agency constitutes final agency action and notice thereof. Final order authority for the proceedings specified in this subsection rests with the Division of Administrative Hearings. This procedure is the exclusive method for challenging the amount of third-party benefits payable to the agency. 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 set forth in paragraph (11)(f) or that Medicaid provided a lesser amount of medical assistance than that asserted by the agency. Scott Henratty and his firm represented the Plaintiffs in the underlying personal injury case. Mr. Henratty is an experienced personal injury attorney. Mr. Henratty testified that the Plaintiffs asked the jury for a verdict in the amount of $50,000,000 for Mr. Silnicki for his total damages, not including his wife's consortium claim. Mr. Henratty valued the claim at between $30,000,000 and $50,000,000. There was no clear and convincing evidence that the total value of Mr. Silnicki's claim exceeded $30,000,000. Mr. Henratty testified that Plaintiffs presented evidence to the jury that Mr. Silnicki's past medical expenses equaled $3,366,267, and his future medical expenses, reduced to present value, equaled $8,906,114, for a total of $12,272,381. Those two elements of damages equal approximately 40.9% of the total value of the claim if $30,000,000 is accepted as the total value of the claim.3/ The Closing Statement reflects that more than the amount of the claimed Medicaid lien was to be used to pay past medical expenses. Petitioners assert in their Petition and Amended Petition three alternatives to determine what should be paid in satisfaction of the Medicaid lien in the event it is determined that the HLA funds are subject to the lien. All three alternatives are premised on the total value of Mr. Silnicki's recovery being $30,000,000 (total value) and compare that to the recovery under the HLA of $3,000,000, which is one-tenth of the total value. All three methods arrive at the figure of $24,564.86 as being the most that can be recovered by the Medicaid lien, which is one-tenth of the Medicaid lien. Future medical expenses is not a component in these calculations. The portion of the HLA funds that should be allocated to past and future medical expenses is, at a minimum, 30% of the recovery.4/
The Issue Whether the Petitioner, Edward J. Miller, is entitled to be licensed as a resident life and variable annuity insurance agent.
Findings Of Fact The Petitioner, Edward J. Miller, is employed at Washington Mutual Bank. His supervisor is Tracy Tarach. It was Ms. Tarach's desire that Mr. Miller become licensed as a resident life and variable annuity insurance agent. To that end, she and Mr. Miller filed the necessary papers with Washington Mutual Bank to approve the application process as well as the course to become licensed. The process of having the bank issue the check to cover the licensing procedure was timely. Additionally, the Petitioner could only be scheduled for the licensure class and completion of the licensing process when the bank took favorable action on the request. Accordingly, for this Petitioner the licensing process was dragged out over the course of several months. In January 2003 the Petitioner completed the state application for licensure but did not transmit it to the state. He submitted the request to the bank for course approval and planned to submit the paperwork when it was successfully completed. At that time, the Petitioner did not have any criminal charges pending against him and the answers noted on the application were all correct and truthful. In February 2003 the Petitioner was stopped for DUI. The next workday the Petitioner went to his supervisor and fully disclosed the arrest as well as the charge. The Petitioner made no effort to hide the arrest from his employer and the employer considers the Petitioner a valuable employee, despite the incident. In March 2003 the Petitioner was formally charged with DUI, a misdemeanor. Meanwhile, the bank approved the Petitioner's request to take the course for licensure. The forty-hour course in another work location required the Petitioner to travel to the school site and reside in a hotel for a week while the course work was completed. Obviously the Petitioner's supervisor was willing to invest the costs of licensure school and accommodations for the Petitioner with full knowledge of the Petitioner's pending criminal matter. After successfully completing the licensure course in April 2003 the Petitioner submitted the license application to the state. He failed to double-check the forms. He failed to correct an answer that was now incorrect. That is, he failed to fully disclose the arrest. Subsequently, the criminal case went to hearing, and the Petitioner entered a plea and was placed on probation. The resolution of the DUI charges was completed after the application was submitted. Section 3 of the license application asks several screening questions of applicants for licensure. Applicants are required to answer "yes" or "no", depending on the information sought. In this case, it is undisputed that the Petitioner failed to correct his answers to the questions posed in Section 3. More specifically, the Petitioner failed to truthfully disclose that he had been arrested for DUI. This failure was an oversight on the Petitioner's part, and not intended to deceive the Department. The answers should have been corrected when the Petitioner amended the application form to include the information regarding his completion of the Gold Coast School of Insurance class on April 11, 2003. He did not do so. When the Department reviewed the Petitioner's application and discovered the false answer, it took action to deny the licensure request. That denial was entered on January 22, 2004. A notice of the denial was provided to the Petitioner and he timely challenged the proposed action. On October 31, 2003, the Petitioner completed all of the terms of his court-ordered probation and the entire DUI incident was put to rest.
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 granting the Petitioner's application for licensure. DONE AND ENTERED this 30th day of July, 2004, 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 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 July, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Edward J. Miller 6205 Northwest West Deville Circle Port St. Lucie, Florida 34986
The Issue The issue in this proceeding is whether Petitioner's lottery prize should be withheld and used to pay an outstanding debt for child support.
Findings Of Fact The Petitioner did not appear and no evidence was presented.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enter a final order dismissing the Petitioners request for a formal hearing, and transferring Petitioner's lottery prize to the Department of Revenue in partial satisfaction of Petitioner's debt for past public assistance obligation. DONE and ENTERED this 20th day of October, 1995, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1995. COPIES FURNISHED: James Merriweather 1333 7th Street West Jacksonville, FL 32209 Chriss Walker, Esquire Child Support Enforcement Department of Revenue P. O. Box 8030 Tallahassee, FL 32314-8030 Louisa Warren, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, FL 32399 Stephen S. Godwin, Esquire Office of the Comptroller Suite 1302, The Capitol Tallahassee, FL 32399-0350 Hon. Robert F. Milligan, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 Harry Hooper, Esquire Department of Banking and Finance The Capitol - Room 1302 Tallahassee, FL 32399-0350
The Issue What amount of Petitioner’s malpractice settlement must be paid to Respondent, Agency for Health Care Administration (Agency), to satisfy the Agency’s $13,904.06 Medicaid Lien?1/
Findings Of Fact On September 12, 2015, [Petitioner] was a 28-year-old single male living alone in Tampa, Florida and enrolled as a student at the University of South Florida working on his master’s degree in education. Because he recently ceased his employment with the Hillsborough County School Board, [Petitioner] had no health insurance. He called 911 for emergency medical services due to severe abdominal pain and was taken by EMS to the Emergency Department at St. Joseph’s Hospital where he was diagnosed with acute pancreatitis and admitted. His condition worsened and was complicated by abdominal distention that made his breathing difficult. In the evening of September 13th, [Petitioner] was transferred to the Medical Intensive Care Unit (“ICU”) because of a rapidly worsening condition and need for close monitoring. Over the next several hours, vital sign monitoring showed high heart and respiratory rates. A consulting physician found “acute respiratory insufficiency likely developing ARDS,” and directed he be “monitor closely, may need to be on mechanical ventilation, his work of breathing is hard to keep current sats [sic]”. During the early morning of September 14, [Petitioner’s] heart rate and respiratory rates remained high, he was short of breath, and given multiple doses of Morphine for severe pain and Ativan for agitation/anxiety, which drugs are known to suppress respiratory function. Throughout the morning, [Petitioner] was in a perilous condition due to a combination of his prolonged efforts to breathe, suppressive medications, and systemic complications of acute pancreatitis including electronical abnormalities associated with hypokalemia and hypocalcemia, and with electrocardiographic changes resulting in arrhythmia, conduction abnormalities and changes in cardiac T wave and QT period. At around 11:30, [Petitioner] attempted to perform a breathing exercise as instructed earlier that morning which required him to get on his hand and knees to relieve the pressure on his chest. [Petitioner’s mother], a licensed and practicing RN herself, was present and attempted to help him when his cardiac monitoring leads became disconnected. At this time, the attending RN was on break. An unknown RN reported [Petitioner] to have a change in the condition “with increased confusion and restlessness” and a call was made to the ICU specialist who issued verbal orders for Haldol, a medication used for sedation but in combination with the Morphine, Ativan and Labetatol, further lowers blood pressure and is contraindicated for cardiac arrhythmias. Without informing [Petitioner or his mother], the nursing staff mistakenly issued a "code grey" to control [Petitioner] and the nursing supervisor approved the administration of the Haldol without any physician assessment or knowing his cardiac status because the monitor was not connected. The ICU specialist who ordered the Haldol was close by in the ICU area but did not evaluate [Petitioner] or assess his condition, cardiac status and need for mechanical ventilation before the Haldol was administered. Immediately upon administration of the Haldol, [Petitioner] became “agonal” and his heart was thrown into a cardiac arrhythmia (PEA) causing a prolonged time period where his brain was deprived of oxygen that resulted in permanent hypoxic encephalopathy so that [Petitioner] now lives in a persistent minimally conscious state. The acute pancreatitis which [Petitioner] initially sought treatment resolved without further complications. His current medical condition is only complicated by the sequelae of his hypoxic encephalopathy and persistent minimally conscious state. Petitioner complied with all requirements of Chapter 766, Florida Statutes, including, all pre-suit requirements and presuit investigation of claims against the treating Hospital, the ICU Specialist and her employer that were corroborated by an expert witness, which were rejected. On October 27, 2017, Petitioner filed a lawsuit in the Circuit Court for Hillsborough County Florida, Case No. 17-CA-009829, against the treating Hospital and the ICU Specialist asserting claims for medical negligence. Based on the foregoing limitations, the medical malpractice claims were settled for a total of $1,975,000, which was approved by the Court to be in the best interest of [Petitioner]. [The Agency], through its Medicaid program, provided medical assistance to [Petitioner] in the amount of $13,904.36. During the pendency of the medical negligence case, [the Agency] was notified of the action and asserted a $13,904.06 Medicaid lien against Petitioner's cause of action and settlement. [The Agency] did not commence a civil action to enforce its rights under §409.910 or intervene or join in [Petitioner’s] action against Defendants. [The Agency] did not file a motion to set-aside, void or otherwise dispute Petitioner's settlement with Defendants. Application of the formula at §409.910(1l)(f) to the settlement requires payment to [the Agency] in the amount of the full $13,904.06 Medicaid lien. Petitioner deposited the full Medicaid lien amount in an interest-bearing account for the benefit of [the Agency] pending an administrative determination of [the Agency’s] rights, and this constitutes "final agency action" for purposes of chapter 120, pursuant to §409.910(17). Credible, Unimpeached, and Unrebutted Testimony Mr. Tonelli is the only person who testified about the value of the various elements of damages making up Petitioner’s malpractice claim. Mr. Tonelli has practiced law for 44 years. He has practiced in Tampa, Florida, the venue where Petitioner’s case would have been tried if it had not settled. He first practiced primarily in the area of personal injury defense. Presently, Mr. Tonelli spends over 25 percent of his time as a mediator. Since 1985, he has mediated many medical negligence cases. Mr. Tonelli also serves as a guardian ad litem in approximately 50 cases per year. Usually two to five of the cases involve catastrophic injury. Mr. Tonelli has served as counsel in 50 to 75 civil trials. Approximately 20 were jury trials. Mr. Tonelli’s practice includes review of medical records and life care plans. He also consults with economists about lost wage claims and works with doctors to identify the nature and extent of injuries and costs of medical services for injured persons. Mr. Tonelli participates in regular intake review of personal injury cases for his firm. The review includes evaluating the recoverable damages. He informs himself about jury awards and settlement amounts through his firm work, his participation in the American Board of Trial Attorneys, and his mediation practice. Mr. Tonelli was Petitioner’s Guardian Ad Litem. He reviewed the case and the proposed settlement and reported to the court about whether the settlement was in Petitioner’s best interests. Mr. Tonelli’s knowledge, skill, and experience qualify him to provide an opinion about the value of the elements of the damages for Petitioner’s malpractice claims against the hospital and the physician. Mr. Tonelli reviewed Petitioner’s hospital and physician medical records. He also reviewed the deposition of Roland Snyder, M.D., who prepared the life care plans admitted into evidence. Between Mr. Tonelli’s service as Guardian Ad Litem for Petitioner and his record review to prepare for his testimony, he had sufficient facts and data to form an opinion about the value of elements of damages of Petitioner’s malpractice claims. Also, he reasonably and reliably applied principles and methods based upon his knowledge, skill, and experience to provide a credible and conservative determination of the value of each element of damages that make up Petitioner’s malpractice claim. His testimony was unrebutted, unimpeached, credible, and persuasive. Injuries and Negligence Petitioner suffers from profound anoxic encephalopathy. This brain damage leaves him in a permanent, minimally conscious state, just barely more conscious than a patient in a vegetative state. He cannot speak, walk, or care for himself. Petitioner lives in pain. He breathes and eats only with the assistance of a tracheostomy. He takes nourishment through a “G-tube.” This is a gastrojejunostomy tube that delivers nutrients directly to the stomach. Petitioner requires daily care and assistance in every task of life from eating to waste elimination. His condition will not change for his estimated 20-year remaining life span. Petitioner’s multiple, severe medical conditions require that he live those 20 years in a long-term care facility with medical services, such as a skilled nursing home. This condition resulted from treatment he received for pancreatitis, a condition from which he fully recovered. While in the hospital, Petitioner developed cardiac and respiratory problems. A cascading series of improper prescriptions exacerbated Petitioner’s medical problems leading to catastrophic injuries resulting in his current condition. Damages The elements of damages for Petitioner’s malpractice claims are past medical expenses, future medical expenses, loss of current income, loss of future income, pain and suffering, and loss of enjoyment of life. The value of the damages in Petitioner’s malpractice claims falls within a range of $25,000,000 to $35,000,000. The amount of $25,000,000 is a reasonable, conservative value to place on Petitioner’s damage claims. The only evidence of past medical expenses is the stipulation that Medicaid paid $13,904.36. Consequently, that is the amount of past medical expenses. Future medical expenses in the form of costs for continued treatment and supports necessary to maintain Petitioner’s existence are a significant part of the damages. As explicated in two detailed life care plans, those expenses will range from $14,535,508.26, for residence in a modified home with supportive caregivers, to $31,082,301.36, for residence in a skilled long-term nursing facility. Loss of current income, comparatively, is not a major factor in this case. Loss of future income is. Petitioner was 30 years old earning $34,000 per year teaching “at-risk” children who would have otherwise been suspended from school. He was dedicated to his profession, volunteered at Boys and Girls Clubs, and had just been accepted to a master’s degree program. Petitioner’s lost future income ranges between $750,000 to $1,000,000. Petitioner’s injuries and resulting conditions are catastrophic. Pain and suffering damages and loss of enjoyment of life damages easily range between 10 and 20 million dollars. They could reasonably exceed 50 million dollars. Consideration of the value of the elements of damages affirms that the total damages that would have been proven if Petitioner’s claims had been tried would have been at least $25,000,000. Settlement Realities Petitioner’s claims were not tried. Petitioner had a strong malpractice claim against the doctor. The doctor, however, had only $500,000 worth of insurance coverage. There is no evidence of assets of the doctor that could have been reached to enforce a judgment. Petitioner’s claim against the hospital was not as strong. The hospital had significant liability and causation defenses. The doctor was not an employee or agent of the hospital. Hospital employees in most instances were following the doctor’s instructions, including when administering the medications that caused the damages. The limits of the doctor’s insurance coverage and the liability and causation issues of the claim against the hospital resulted in the decision to settle. Uncertainty about the provability or amount of damages was not a factor. The trial court approved the settlement. The settlement amount is 7.9 percent of the value of Petitioner’s claims. The stipulated amount of medical expenses the Agency paid through the Medicaid program is $13,904.36. The reasonable inference from the record in this case is that applying the 7.9 percent ratio of claims value to settlement recovery to the stipulated amount of medical expenses paid by the Medicaid program demonstrates that $1,098.44 of Petitioner’s settlement recovery was for past medical expenses. The Agency did not call witnesses, present evidence of the value of damages, or propose an alternative way to value damages.
