Articles Posted in Workers’ Compensation

dollarsThe wheels of justice grind exceedingly slowly. It can take years for personal injury and workers’ compensation cases to reach final resolution. In the interim, accident victims often experience extreme financial pressure. The pressure can force victims to compromise their case.

An industry has developed to address the problem. Lawsuit funding companies loan money to victims with the promise of being repaid from proceeds recovered in the case. Some of these companies include:

Funding loans are not traditional loans which are subject to being repaid from any of a borrower’s assets. (This blog will not go into homestead laws and other properties exempt from creditors.) Rather, lawsuit funding loans are limited to being repaid from the case itself. The loan cannot be secured by a home mortgage. The lender cannot seize a bank account. Wages cannot be garnished. For the lender, it’s  the case or bust.

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jackhammerMy first workers’ compensation trial involved having to prove that a herniated cervical spine intervertebral disc was work related. Our elderly female client had assembled mattresses in a warehouse for fifteen years. Once the assembly was complete, she was responsible for stacking them one on top of the other until she could reach no higher. The mattresses ranged in size from small to king size. The stacking was done manually and it was a strain to lift each mattress.

Over time, soreness turned into debilitating pain. When she could work no longer, I was hired. Because the disability occurred gradually, rather than from a sudden event, we fought for compensability under the theory of repetitive trauma.

We won, prevailing not only on compensability, but also on the issue of Permanent Total Disability. I’ve retained a fondness for repetitive trauma cases ever since.

With regard to the issue of compensability, we relied on Festa v. Teleflex, Inc., 382 So. 2d 122 (Fla. 1st DCA 1980). Festa crystalized the law on the subject, establishing that for a claimant to recover under the repetitive theory of accident, he must show 1) a series of occurrences, 2) the cumulative effect of which is injury or aggravation of a pre-existing condition and 3) that he has been subjected to a hazard greater than that to which the general public is exposed. Festa built on Victor Wine and Liquor, Inc. v. Beasley, 141 So.2d 581, 588 (Fla. 1962) and Worden v. Pratt & Whitney Aircraft, 256 So.2d 209 (Fla.1971) (the Florida Supreme Court stated, “The accidental nature of an injury is not altered by the fact that, instead of a single occurrence, the injury is the cumulated effect of a series of occurrences.” Id. at 210.)

Prolonged Exposure. Festa does not impose a minimum threshold; almost any period of time will suffice: Festa involved 45 days; in J & J Enterprises v. Oweis, 733 So.2d 1149 (Fla. 1st DCA 1999), the claimant worked for only two weeks before she experienced the onset of symptoms; Daugherty v. Red Lobster, 550 So. 2d 171 (Fla. 1st DCA 1989), 4 to 5 months of trauma; Brevard County Mental Health Center v. Kelly, 420 So.2d 911 (Fla. 1st DCA 1982), ten days of exposure to chemicals (chemical exposure cases apply the same principles); see, also, Moore v. Pasco County Board of Commissioners, 854 So. 2d 256 (Fla. 1st DCA 2003).

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worker2The day after Jeb Bush suspended his run for the Republican presidential nomination, I read a quote in the Miami Herald from a South Carolina voter expressing dismay because she believed Bush was a good man who cared about disabled people. My immediate thought was, this woman does not know Jeb Bush … or at least the Jeb Bush who governed the state of Florida for eight years from 1999 to 2007. As Florida’s governor his policies were anything but sympathetic to disabled people.

Clear examples of his uncaring policies are contained throughout Chapter 440 of Florida’s Statutes, the body of laws that govern the state’s workers’ compensation system. At every opportunity, Mr. Bush pushed to weaken the rights and protections afforded injured workers.

This blog focuses on one example, workers’ compensation immunity.

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Can a worker injured outside the state of Florida be eligible for Florida workers’ compensation benefits? The answer lies in § 440.09(1)(d), Fla. Stat.:

If an accident happens while the employee is employed elsewhere than in this state, which would entitle the employee or his or her dependents to compensation if it had happened in this state, the employee or his or her dependents are entitled to compensation if the contract of employment was made in this state, or the employment was principally localized in this state. However, if an employee receives compensation or damages under the laws of any other state, the total compensation for the injury may not be greater than is provided in this chapter.

Key elements for Florida jurisdiction:

  1. The contract of employment was made in Florida; or
  2. The employment was principally localized in Florida.

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dollarsAn employee injured or killed in the course of his or her employment by the negligence or wrongful act of a third-party tortfeasor may receive workers’ compensation benefits and pursue a remedy by action at law against such third-party tortfeasor. (Where the employee has been killed, the third-party action will be handled through the decedent’s estate by a court appointed Personal Representative.)

Pursuant to Florida Statute 440.39, if the employee or his or her dependents accept workers’ compensation benefits, the employer or its workers’ compensation insurance company shall be subrogated to the rights of the employee or his or her dependents against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid. This is known as the workers’ compensation lien.

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worker2Florida’s workers’ compensation system is stacked against injured workers in every way imaginable. It more closely resembles what would be expected in Vladamir Putin’s Russia.

An especially egregious arrangement is the one which allows employers and their workers’ compensation insurance carriers to hand-select the injured worker’s treating doctors. See Section 440.13(2) Florida Statutes. Not surprisingly, E/Cs select the same doctors again and again. The doctors know what is expected of them and deliver. The money is good and steady, so there won’t be any biting of the hand, so to speak, from this cadre of medical providers. To make matters worse, the law allows the E/C and their representatives to engage in ex-parte communications with treating doctors, see Section 440.13(4)(c) Florida Statutes, and “[n]o medical opinion other than the opinion of a medical advisor …, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.” Section 440.15(5)(e) Florida Statutes.

What all of this amounts to is that injured workers mostly have little control over the outcome of their medical care and work status. The doctor’s word is gold, even when the doctor is in E/C’s pocket.

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DisabledPTD, the acronym for Permanent Total Disability, is the only post-MMI (maximum medical improvement; § 440.02(10) Florida Statutes) workers’ compensation wage loss benefit available to Florida’s injured workers. A Claimant has four ways of qualifying for PTD.

The first way is by proving at least one of the injuries listed in § 440.15(1)(b) (2015). Doing so establishes a rebuttable presumption of PTD. (The burden is on the employee to prove the injury.) Since the presumption is rebuttable, the employer or carrier can overcome the PTD presumption by establishing that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence.

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unemployedThe 1986 Immigration Reform and Control Act (IRCA) prohibits the employment of illegal aliens in the United States. See Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147, 122 S.Ct. 1275, 152 L.Ed.2d 271 (2002). To accomplish this goal, the IRCA requires employers to verify the identity and eligibility of all new hires by examining specified documents, including social security account number cards, before they commence work. See generally § 1324a(b); see also Hoffman, 535 U.S. 137 at 148, 122 S.Ct. 1275.

Workers lose wages for various reasons. In Hoffman, for example, the employee was wrongfully terminated for engaging in union activities. More frequently, wages are lost because of work related injuries.

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pinoccioFlorida employers with four or more employees must maintain workers’ compensation insurance or a statutorily prescribed alternative. §440.055 Florida Statutes (2015). An employer who fails to maintain the coverage may nevertheless be sued by an injured employee for workers’ compensation benefits or, in the alternative, the employee may proceed at common law to recover damages for injury or death. §440.06 Florida Statutes (2015). When sued at common law, the non-compliant employer “may not … defend such a suit on the grounds that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his or her employment, or that the injury was due to the comparative negligence of the employee.” §440.06 Florida Statutes (2015).

To limit or avoid the cost of workers’ compensation insurance, Florida employers sometimes understate payroll and/or purposely mischaracterize employees as independent contractors. Independent contractors are not employees. §440.02(15)(d).

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Florida’s workers’ compensation system was created, in 1935, with the goal of providing benefits to injured workers without the delay of haviworker2ng to prove the accident was caused by the employer’s negligence. In exchange for this no-fault system, employers were granted immunity from being liable for negligence.

The system, however, did not afford absolute immunity. There was a time when employees who were able to demonstrate that an employer engaged in conduct which is substantially certain to result in injury or death, could pursue a civil remedy. Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000).

While difficult, overcoming workers’ compensation immunity by establishing  substantial certainty was within reach.

In 2003, Governor Jeb Bush and the Florida Legislature put the chance of overcoming workers’ compensation immunity out of reach. New measures, in the form of Florida Statute 440.11, were instituted to make overcoming employer immunity virtually impossible.

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