Articles Posted in Workers’ Compensation

dollars.jpgMaximizing the client’s net recovery should be a primary focus in every case. Court costs, litigation and medical expenses, and insurance liens are elements often charged against the gross recovery.

One of the insurance liens is a creature of Florida Statute 440.39(2). This lien comes into play when a person injured in the course and scope of employment receives both workers’ compensation benefits and compensation from a third-party tortfeasor. 440.39(2) provides that a portion of the proceeds received from the tortfeasor must be reimbursed to the employer or its workers’ compensation insurance company.
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dollars.jpgSome of Florida’s most severely injured workers may qualify for Permanent Total Disability (PTD) benefits under Section 440.15(1) Florida Statutes. In the absence of a catastrophic injury such as a spinal cord injury involving severe paralysis, amputation of an arm, a hand, a foot, or a leg, severe brain or closed-head injury, or total or industrial blindness, the qualifying standard is that the injured employee is not capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence. (The Florida Legislature, under the control of Jeb Bush, changed the PTD standard from “light duty” to “sedentary employment.” This significant difference keeps many severely injured, deserving workers from qualifying for PTD.)
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Our firm has been hired by a woman who recently sustained a serious leg injury while walking back to her car from a company sponsored holiday party. The employer has refused to provide workers’ compensation benefits, claiming that the accident did not happen in the course and scope of employment.

While our firm handles both workers’ compensation and premises liability cases, we have agreed to pursue a premises liability action against the employer. (The accident happened on its property.) We believe that the employer and possibly others are responsible for creating an accident-causing dangerous condition.
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law books.jpgInjured workers who qualify for workers’ compensation permanent total disability benefits (PTD) under Florida Statue 440.15(1), receive 66-2/3% of their average weekly wage (AWW) payable biweekly. Such injured workers may also qualify for Social Security Disability (SSD) monetary benefits payable monthly.

The sum of the two benefits may exceed 100% of an injured worker’s AWW. Is the injured worker allowed to receive more than his AWW? It depends.
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doctor.jpgA Judge of Compensation Claims (JCC) recently denied our firm a stipulated carrier-paid attorney’s fee under the so-called medical-only section of Florida Statute 440.34. The judge rejected the stipulation because a claim for Permanent Total Disability (440.15(1)) was pending when we filed a claim for psychiatric care. The judge misread the statute.

440.34(3)(a) provides as follows:

(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees. A claimant is responsible for the payment of her or his own attorney’s fees, except that a claimant is entitled to recover an attorney’s fee in an amount equal to the amount provided for in subsection (1) or subsection (7) from a carrier or employer:

(a) Against whom she or he successfully asserts a petition for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident.

The judge relied on the words, “has not filed,” without considering the qualifying language, “at such time.”
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Since at least 2002, when Jeb Bush and a super-majority of Republicans passed legislation eliminating important workers’ rights, Florida’s workers’ compensation system has been unfair and unbalanced. One circuit court judge has declared it unconstitutional — Florida’s Workers’ Compensation System Unconstitutional, So Says 11th Circuit Court Judge Jorge Cueto.

The time is approaching when the Florida Supreme Court may agree with Judge Cueto.
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Once again Pam Bondi, Florida’s Teabagging Attorney General, has decided to waste the taxpayer’s money on another anti-decency crusade. Consistent with her opposition to Gay marriage, government in the Sunshine, the Affordable Care Act, and medical marijuana, the twice-divorced Attorney General has chosen to appeal the August 13, 2014 ruling of 11th Circuit Court Judge Jorge Cueto declaring Florida’s workers’ compensation system in violation of both the Florida and U.S. constitutions as no longer providing a “reasonable alternative” to the tort system for workers seeking recompense for job related injuries. See this blog: Florida’s Workers’ Compensation System Unconstitutional, So Says 11th Circuit Court Judge Jorge Cueto.
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moses.jpgIn 1935, Florida first enacted a workers’ compensation system for the state’s employers and employees. The idea was to provide a greater degree of fairness and certainty for each. The primary advantage for employers was the immunity from most personal injury lawsuits, making it easier to anticipate expenses, while employees would receive benefits without first having to prove negligence against the employer. It was a model patterned on similar systems adopted in other states. Both sides gained, both sides lost, but the overall outcome was positive.

That is, until greed began to creep into the system. It didn’t take long.

Through legislative might, business interests soon began to whittle away at workers’ rights and benefits. From time to time, the courts slowed and reversed the erosion, but workers could do little in the long run to resist the rising tide of selfishness and greed.

Not surprisingly, the high mark of this tide of selfishness and greed came during Jeb Bush’s reign as Florida’s governor. Taking a page from his big brother George’s system in Texas, Jeb spearheaded efforts to gut Florida’s workers’ compensation system. 2002’s legislative session broke the system. Benefits were slashed and injured workers were denied the right to effective legal counsel.

Jeb received champagne toasts in boardrooms from Key West to northwest Florida. Mission Accomplished!
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scales of justice.jpgInjured workers have experienced a steady erosion of their rights under Florida’s workers’ compensation system since its inception in 1935. Some periods have seen greater losses than others. None, however, were as ugly as the Jeb Bush years, when he served as the 43rd Governor of Florida from 1999 to 2007, along with a Republican-controlled House and Senate. Together, they happily gutted the system.

After years of injustice and suffering, the chickens may be coming home to roost.

Before Florida had a workers’ compensation system, in order for an injured worker to receive lost wages and medical benefits, he or she was burdened with proving employer-fault caused the accident. This was a time-consuming and always difficult burden, made more tenuous by legal principles that barred any recovery if the worker – contributory fault – or a fellow servant were even slightly at fault, or the employee accepted the dangers of hazardous employment. This system, a form of common law negligence, saw most injured workers go without ever receiving benefits. The system also proved unwieldy to employers, who were regularly tied up in lawsuits and could not reasonably predict their exposure.
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greed.jpgWhile it’s bad enough that the employer/carrier (“E/C”) get to hand pick the injured worker’s treating doctors, Section 440.13(9)(c) Florida Statutes (2013) gives them a free shot at defeating opinions they oppose. My recent experience demonstrates the point.

In pertinent part, Section 440.13(9)(c) provides:

If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.

My client claimed to have hurt his back while trying to lift a roll of tarpaper from the floor of a van. Unbeknownst to him, the tarpaper had melted in the hot sun and stuck to adjacent rolls, causing unexpected resistance during the attempted lift. He felt the immediate onset of intense back pain.

Initially, E/C sent him to a workers’ compensation clinic. A lumbar spine MRI was ordered. The diagnostic test revealed a disc herniation at L5-S1 along with bony degenerative changes. The herniation caused the clinic doctor to prescribe a consultation with an orthopedist. The orthopedist, chosen, of course, by the E/C, opined that the incident was the major contributing cause (“MCC”) of the disc herniation. He also decided that his patient might benefit from surgery, so he sent him to an orthopedic surgeon, again chosen by the E/C. The surgeon, Jonathan Hyde, M.D., performed a comprehensive physical examination, took a thorough medical history, and personally reviewed the MRI images (as opposed to simply relying on the radiologist’s report). He, too, opined that the incident was the MCC of the disc herniation. He prescribed physical therapy and medicine, and later performed an epidural steroid injection. When none of the conservative approaches worked, he recommended surgery consisting of a “trans-facet decompressive laminectomy approach followed by a transforaminal lumbar interbody fusion.” A surgery date was scheduled for one month later.

Up to this point the E/C had been covering all of the medical care, including the epidural injection. However, it refused to authorize the expensive surgery. Its response was to challenge the treating doctors’ MCC opinions.

E/C went out and hired a well-known insurance company doctor to perform a so-called “IME.” This doctor had not done back surgery since 1979, had not written any articles or given any lectures on the subject of herniated discs or the type of surgery that had been recommended. His CV was only four pages long. In contrast, Dr. Hyde’s CV was some thirty pages long, with entry after entry of articles and lectures on the subjects at issue. He specialized in diagnosing and treating disc herniations. In short, E/C’s IME is a hired gun, Dr. Hyde is a top gun.
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