Recently in Workers' Compensation Category

September 3, 2014

Florida's Workers' Compensation System Unconstitutional, So Says 11th Circuit Court Judge Jorge Cueto

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!

Continue reading "Florida's Workers' Compensation System Unconstitutional, So Says 11th Circuit Court Judge Jorge Cueto" »

August 13, 2014

Will Jeb Bush/Right-Wing Extremism be the Straw that Breaks the Back of Florida's Workers' Compensation System?

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.

Continue reading "Will Jeb Bush/Right-Wing Extremism be the Straw that Breaks the Back of Florida's Workers' Compensation System? " »

February 21, 2014

My Recent Experience With Florida's Workers' Compensation EMA (Expert Medical Advisor) Law (Statute 440.13(9))

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.

Continue reading "My Recent Experience With Florida's Workers' Compensation EMA (Expert Medical Advisor) Law (Statute 440.13(9))" »

December 31, 2013

Florida's Workers' Compensation Statute Perpetrates Taxpayer Ripoff

greed2.jpgFlorida workers severely injured at work sometimes qualify for both workers' compensation permanent total disability benefits (PTD) (F.S. 440.15(1)) and social security disability benefits (SSD) (42 U.S.C. s. 423).

The Florida workers' compensation system, codified in Chapter 440 of Florida's statutes, sets forth the responsibilities of employers and their workers' compensation insurance companies (E/C) to injured workers. Workers whose injuries permanently prevent them from being gainfully employed are entitled to receive 66-2/3% of their average weekly wage (AWW) (440.14) from employers/carriers until age 75. These same individuals sometimes also qualify for SSD, which includes a monthly payment, when they are similarly permanently unable to work. (SSD converts to Social Security Retirement benefits at full retirement age -- 66 if born after 1942, 67 if born after 1960.) SSD is paid by taxpayers.

Continue reading "Florida's Workers' Compensation Statute Perpetrates Taxpayer Ripoff" »

September 21, 2013

Florida Workers' Compensation Liens -- The "Manfredo" Formula Made Simple

law books.jpgFlorida employees injured at work may be able to bring a valid claim for damages against a third party. For purposes of this blog, a third party means an entity, including an individual, other than the employer or other entity entitled to workers' compensation immunity. A third party case may exist if the work related injury was caused by the negligence or intentional act of the non-exempt entity. A simple example is where a deliveryman is injured in a motor vehicle accident by a negligent non-exempt third party. Because the accident happened in the course and scope of the employment, the worker would is eligible to recover both workers' compensation benefits and personal injury damages.

Where workers' compensation benefits have been furnished, Section 440.39 Florida Statutes creates a lien against the compensation the injured worker receives from a third party. In other words, the employer or its insurance carrier have the statutory right to be repaid from the money paid to the injured worker by the third party. "The lien statute has a straightforward and appropriate objective--the prevention of double recoveries by injured employees who have recovered statutory benefits under the workers' compensation law but also have claims against responsible parties other than the employer. Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1108 (Fla.2006). The statute allows the employer or insurer to be subrogated to the proceeds of such third-party tort recoveries to the extent of the amounts paid or to be paid by the employer or insurer." Luscomb v. Liberty Mut. Ins. Co., 967 So.2d 379 (Fla. 3rd DCA 2007). Importantly, the workers' compensation lien is capped at the claimant's net recovery. City of Hollywood v. Lombardi, 770 So.2d 1196, 1202 (Fla.2000), and Aetna Insurance Co. v. Norman, 468 So.2d 226, 228 (Fla.1985).

The lien can be waived by the employer or carrier. However, this will typically come at the cost of the workers' compensation case settling for less than if the lien remained in place.

When the lien isn't waived, how is the claimant's net recovery determined?

The formula, as set forth in the statute, can be difficult to comprehend. Extensive litigation has ensued over its meaning and application, with many appellate decisions attempting to explain the issues. In my opinion, the best play to start to understand the formula is the Florida Supreme Court case Manfredo v. Employer's Casualty Insurance Company, 560 So.2d 1162 (Fla 1990).

This is the so-called "Manfredo Formula": Third party settlement/recovery amount less (-) attorney fees and costs divided by (/) full case value = the % value of the wc lien.

Here's the formula by way of a hypothetical example:


  1. WC lien (medical, indemnity, settlement, etc.): $ 100,000

  2. $ 250,000 third party settlement less fees (40%) and costs ($ 35,000) = $ 135,000

  3. Full case value: $ 1,000,000. (The case was for less due to tough liability, coverage limits, etc.)

  4. $ 135,000 divided by $ 1,000,000 = 13.5%

  5. 13.5% of $ 100,000 = $ 13,500.

Hence, the workers' compensation employer/carrier recovers $ 13,500, 13.5%, of its $100,000 lien from the $250,000 personal injury recovery.

Resolving the WC lien is not always this simple. In the Aetna case, the Florida Supreme Court noted some complicating factors. In speaking of 440.39, the court wrote:

This very logical process, and the statute describing it, becomes more complicated because of the broad array of circumstances that may occur with the third-party claims and recoveries. They may be brought by the employee, employer, or insurer (based on the one-year windows described above), and the attorneys prosecuting the claims may therefore be compensated by the employee, employer, or insurer. The employee may have settled all the workers' compensation medical and indemnity claims for a lump sum (as here), or the benefits may continue to be payable into the future. The third-party recoveries may exceed the total benefits paid and to be paid by the employer or its insurer, or they may be less than that total (as here). There may be multiple third-party claims and recoveries, and therefore multiple computations of the lien, and the recoveries may occur at different times. A particular recovery may be less than the "full value" of the third-party claim for a variety of reasons: other third-party tortfeasors may be responsible for some of the damages, the employee may have been comparatively negligent, or the plaintiff and counsel for the plaintiff may discount the value of the claim in order to avoid the risk and delay inherent in any lawsuit.

Continue reading "Florida Workers' Compensation Liens -- The "Manfredo" Formula Made Simple" »

August 16, 2013

Qualifying for Florida Workers' Compensation Permanent Total Disability (PTD) Made Easier

scales of justice.jpgAs I have blogged here before, beginning with the election in 1998 of Jeb Bush as the governor of Florida, state Republicans have been on a mission to limit and eliminate workers' rights. An area of particular focus has been the workers' compensation system -- Chapter 440 of the Florida Statutes.

Some previous blogs:

Florida's workers' compensation system provides two different categories of lost wages benefits. See Florida Statute 440.15. The line of demarcation is maximum medical improvement (MMI), see 440.02(10). Before reaching MMI, an injured worker is eligible to receive temporary disability benefits, either temporary partial (TPD), see 440.15(4), or temporary total (TTD), see 440.15(2). Once an injured worker has reached MMI, the only available indemnity benefit is permanent total disability (PTD) .

The qualifying legal standard for PTD has changed many times since the adoption, in 1935, of a workers' compensation system in Florida. It is not the purpose of this blog to track all of the changes. For a thorough discussion of the subject, go to: Permanent Total Disability in Florida Before and After the 1993 Reforms. Of importance to this blog is that, in 2002, the Florida Legislature enacted the toughest PTD qualifying standard ever. In the absence of one of the catastrophic injuries listed in 440.15(1), the employee was required to establish that he or she is not able to engage in at least sedentary part-time employment, within a 50-mile radius of the employee's residence, due to his or her physical limitation. Surprisingly, the "part-time" provision was eliminated in 2010, softening the standard somewhat. The current version of 440.15 reads as follows:

In all other cases [i.e., the injury is not one of the listed injuries], in order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee's residence, due to his or her physical limitation.
On its face, the difficulty with this standard is that few injuries prevent an employee from performing at least sedentary work, defined in §404.1567(a) of the Code of Federal Regulations as "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met."

Continue reading "Qualifying for Florida Workers' Compensation Permanent Total Disability (PTD) Made Easier " »

July 28, 2013

Florida Construction Site Sub Contractors are Liable for Personal Injuries Caused by Gross Negligence

worker2.jpgPre-Jeb Bush, Florida construction subcontractors were held liable in tort for damages caused by their negligence when the party harmed was an employee of a subcontractor with whom legal vertical privity was not shared. This powerful threat caused subcontractors to pay heightened attention to workplace safety. When subcontractors fell short of being reasonably safe and the result was bodily injury, they paid the cost.

This did not sit well with Governor Bush and his Republican cohorts who controlled Florida's legislature. Profits were at stake. Action was taken to eliminate this bothersome "loophole." Legislation was passed granting "horizontal immunity" to construction subcontractors without any contractual or other legal connection to employees of other companies. See Florida Statute § 440.10(1)(e)(2). See also § 440.11(1)(b)(2).

Thankfully, the immunity is not absolute. § 440.10(1)(e)(2) provides that gross negligence is excepted from the workers' compensation exclusivity provision. To establish gross negligence, a Plaintiff must show (1) a composite of circumstances which, together, constitute a clear and present danger; (2) an awareness of such danger by the subcontractor; and (3) a conscious voluntary act or omission by the subcontractor that is likely to result in injury. See Pyjek v. Valleycrest Landscape Development, Inc., So.3d , 38 FLW D1064 (Fla. 2nd DCA 5-15-2013); and Villalta v. Cornn Int'l, Inc., 109 So. 3d 305 (Fla. 1st DCA 2013) (citing Glaab v. Caudill, 236 So. 2d 180, 185 (Fla. 2d DCA 1970)); cf. Merryman v. Mattheus, 529 So. 2d 727, 729 (Fla. 2d DCA 1988) (explaining that mere knowledge of vulnerability of employee to the possibility of injury is insufficient to amount to gross negligence; there must be a likelihood of injury from employee's vulnerability greater than mere danger, rising to a "clear and present danger").

Continue reading "Florida Construction Site Sub Contractors are Liable for Personal Injuries Caused by Gross Negligence" »

July 26, 2013

Gross Negligence as the Path Around Florida's Workers' Compensation Employer Immunity

worker3.jpgMost Florida employees injured at work will be limited to receiving compensation through the state's workers' compensation system as laid out in Chapter 440 of the Florida Statutes. The main reason for this limitation is that employers and fellow-employees are immune from being sued for simple negligence. See F.S. 440.11.

'"[S]imple negligence is that course of conduct which a reasonable and prudent man would know might possibly result in injury to persons . . .."' Carraway v. Revell, 116 So. 2d 16, 22 (Fla. 1959) (quoting Bridges v. Speer, 79 So. 2d 679, 682 (Fla. 1955)).

Negligence cases and workers' compensation cases are different creatures subject to their own set of laws with regard to compensation for injuries. One of the main differences is that the workers' compensation system does not authorize compensation for pain and suffering. (No Compensation for Pain & Suffering Under Florida's Workers' Compensation System.)

Chapter 440 is a no fault system for the provision of benefits. In theory, at least, the worker's compensation statutes provide a system of compensation for injured workers in which the worker receives the guarantee of rapid compensation for work related injuries. Reality is often a different story. Even when the system works as designed, its shortcomings are many. Read these blogs:

In some instances, injured workers would be more fairly compensated through the civil justice system (negligence) than through the workers' compensation system. Unfortunately, due to a number of factors, including employer and fellow-employee immunity (see above), and a lack of fault (i.e., all but the injured worker are blameless for the accident), injured workers infrequently have the option of seeking a civil rather than a workers' compensation remedy.

Continue reading "Gross Negligence as the Path Around Florida's Workers' Compensation Employer Immunity" »

July 4, 2013

Are Florida Workers' Compensation Benefits Exempt From Claims of Creditors?

dollars.jpgWe are frequently asked if workers' compensation benefits are exempt from the claims of creditors? The answer is Yes and No.

The No first. WC benefits are not exempt from claims based on an award of child support or alimony. While it is up to the creditor to initiate the collection process, WC money can be garnished to satisfy these obligations. The amount garnishable is determined by a formula contained in the garnishment laws (Chapter 77).

In addition, portions of lump sum settlements will be applied against child support amounts in arrears. The rule of thumb is that up to 1/2 of the Claimant's share of the lump sum settlement proceeds will be applied against the arrears.

In all other instances, workers' compensation benefits, both benefits paid and payable, are exempt from claims and creditors.

The Florida Statute which addresses this issue is 440.22. The leading Florida case on the subject is Broward v. Jacksonville Medical Center, 690 So.2d 589 (Fla. 1997).

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Contact us toll free at 866-785-GALE or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are "people" and not "cases" or "files." We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

July 2, 2013

Anatomy of a (Florida) Workers' Compensation Settlement

handshake.jpgOn July 11, 2012, a former client walked into our office and described a February, 2008 work related accident. After being pushed to the ground while trying to break up a hallway fight in a South Florida High School, he was sent by his employer to a workers' compensation clinic for medical care. His injuries consisted of neck and right shoulder pain.

After a month of treatment, he became disenchanted with the level of care and seeming indifference to his complaints. He spoke to the insurance adjuster, but was told to take it up with the doctor. He stopped going to the clinic.

Although the pain got progressively worse, he continued to work. He began seeing doctors through his health insurance. His primary care physician sent him to a neurologist and a pain management specialist. He was diagnosed with a serious cervical spine condition to explain the neck pain. He did not receive a diagnosis for the shoulder pain.

It became more and more difficult to work. Knowing that his disability was from the 2008 accident, he reached out to the workers' compensation adjuster to authorize better medical care. This was more than two years after the accident. The adjuster told him that he had waited too long to pursue additional benefits, that the workers' compensation statute of limitation had expired. See Florida Statute 440.19.

Shortly thereafter, he walked into our office.

After yelling at him for waiting so long to come to us, I decided to take a shot at reviving the case. Our one shot was that the employer/servicing agent had not advised him of his rights in accordance with FS 440.185. We filed a Petition for Benefits seeking authorization of medical care and lost wage benefits. At the same time, we filed a formal request with the employer/servicing agent to produce its entire claim file absent privileged documents.

Either the 440.185 statutory notice was there or it wasn't.

After waiting an anxious 35 days for a response to our Request to Produce, we received the answer we had been hoping for: The 440.185 notice, if it ever existed, was nowhere to be found.

So much for E/SA's SOL defense.

Continue reading "Anatomy of a (Florida) Workers' Compensation Settlement" »

June 2, 2013

Medicare Set Aside (MSA) Considerations in Florida Workers' Compensation Cases

Chess.jpgThis past week our firm settled a workers' compensation case for $892,000. Included in the settlement package was a Medicare Set Aside. Importantly, while the workers' compensation carrier had not obtained CMS approval prior to the settlement, the carrier guaranteed that it would cover any CMS required payments above those proposed. (The carrier also agreed that if CMS required less than the proposed amount, the Claimant would keep the difference.)

Without this guarantee, the case would not have settled. While the settlement was abundantly fair, the Claimant could not chance having to pay out-of-pocket to CMS more than was proposed. Moreover, he wanted the peace of mind of finality that only the guarantee could buy. The proposal was not a complete shot in the dark for the carrier, so the guarantee was not a big risk. The MSA proposal was generated by the carrier's own experts, with backgrounds in medicine and billing, and extensive experience with CMS. Having been-there and done-that, the carrier's team did not expect any big surprises. Nevertheless, the guarantee was a big deal for the Claimant. (Also helpful is that the carrier agreed to pay a private company -- Medivest -- to manage the Medicare Set-Aside. This is the way to go. Managing a Set-Aside is beyond the capabilities of most individuals and if done wrong, money will be wasted and Medicare benefits jeopardized.)

In cases where the Claimant has substantial future medical needs, it is important for Claimant's attorneys to remember that the amount CMS is willing to approve for the MSA Set-Aside is often a small fraction of the actual cost of future medical expenses. For example, in the settlement mentioned above, the carrier's exposure for future medical expenses was 15-20 times greater than the amount CMS will approve. Congress allowed this flexibility by understanding the importance to private business of being able to settle cases. (See, 42 C.F.R. §411.46, 42 C.F.R. §411.47 and §3407.7, or 42 C.F.R. §411.54, et seq., of the Medicare Intermediary Manual.) If MSAs had to equal full exposure, cases would be too costly to settle. Without being able to settle cases, the insurance industry would come to a grinding halt. This would harm the economy. The alternative was to make taxpayers shoulder some of the exposure. This is what happens when Set-Asides are approved for less than full exposure.

Continue reading "Medicare Set Aside (MSA) Considerations in Florida Workers' Compensation Cases" »

May 2, 2013

Florida Workers' Compensation a Long Way From Its Roots

worker2.jpgBefore Florida adopted a workers' compensation system, in 1935, for workers injured on the job to recover medical expenses and lost wages, or be compensated for non-economic damages, like pain and suffering, they had to prove that the accident resulted from negligence on the part of the employer or some third party. Further complicating their path to recovery was the legal principle known as contributory negligence, which acted as a complete bar to recovering benefits if the injured worker contributed in any way to causing the accident, even by as little as 1%. Few workers were able to overcome these two burdens. And for those few who succeeded, the slow grind of justice often left them broken and destitute.

The new system created an immediate sea change of good for Florida's workers. No longer would they be forced to fight, usually unsuccessfully, for every needed benefit. So long as the injury happened in the course and scope of the employment, medical and lost wage (indemnity) benefits would be furnished, contributory negligence notwithstanding. It was the declared ideal of the system to be self-executing, meaning benefits would come without a fight, and, where there was a dispute, the worker received the benefit of any doubt.

In exchange for this no-fault system, injured workers were forced to give up the right to seek common law civil remedy damages, like pain and suffering, from the employer. (They could still seek these damages from third parties.) In other words, employers were immune from civil lawsuits. See, Florida Statute 440.11 for the present day manifestation of what is commonly referred to as "workers' compensation immunity."

The system was hailed as a fair balance between the needs of injured workers and the rights of employers. Workers would receive the quick delivery of benefits, while employers were protected from jury verdicts. Neither side was entirely satisfied or entirely disappointed with the system, an indication of its success.

While the system was tweaked from time-to-time by legislative action and court decrees, it remained fairly evenly balanced for more than 50 years. That fair balance changed dramatically, in favor of Big Business and insurance companies, under the rule of Governor Jeb Bush (1999-2007), who followed the example set by his big brother George, as governor of Texas . Successive Republican governors -- Charlie Crist and Rick Scott -- and Republican legislators, who controlled both the Florida House of Representatives and the Senate, did nothing to swing the pendulum back towards a fair middle ground. Accordingly, It can be said with full certainty that Florida now has one of the most unjust, if not the single most unjust, workers' compensation systems in the entire United States.

Continue reading "Florida Workers' Compensation a Long Way From Its Roots" »

April 10, 2013

Florida's Workers' Compensation System is Worse Than Ever ... If You're an Injured Worker

worker2.jpgFlorida once treated its injured workers with dignity and respect. This is no longer the case. Current workers' compensation laws treat injured workers as expendable commodities. Little regard is given to their health and well-being.

Rather than being a non-adversarial system for the provision of needed and deserved benefits, as it was originally designed to be when adopted in Florida nearly 80 years ago, Florida's workers' compensation system has become a gauntlet of detours and obstructions with little reward at the end for those few who somehow manage to find their way through.

Complicating matters greatly for injured workers is that their lawyers are prohibited from being compensated fairly for their services. This was a clever scheme formulated by former Governor Jeb Bush and his Republican colleagues in 2002 to keep injured workers from being represented adequately. Here's proof in the pudding: In Jennifer Kaufman v. Community Inclusions, Inc./Guarantee Insurance Company, the claimant's attorney successfully prosecuted claims against the employer/insurance carrier. For his services, which consumed 100.3 hours, he received a whopping court awarded a fee of $648.41, or $6.48 per hour. (The fee was awarded by Judge E. Douglas Spangler, Jr. To Judge Spangler's credit, he wrote in his Final Compensation Order that the attorney deserved a fee in excess of $25,000, but that his hands were tied by the workers' compensation attorney's fee statute, 440.34. Judge Spangler also expressed dismay that the employer/carrier were allowed to pay their own defense attorney $14,720.) The First District Court of Appeal upheld the small award.

Here's a sampling of other ways in which Florida's workers' compensation system has moved away from being for the people:

In 1990, amendments to Chapter 440, Florida's body of workers' compensation laws, reduced the duration of temporary monetary benefits from 350 weeks to 260 weeks. Temporary benefits are payable to injured workers during the recovery process prior to maximum medical improvement -- (440.02(10). (In 1993, the legislature further reduced temporary benefits to a maximum of 104 weeks. However, in a recent 1st DCA decision, Westphal v. City of St. Petersburg/Risk Management & State of Florida, the 104 week limit was struck down and replaced by the 260 week limit.)

The 1990 amendments also cut dramatically the benefits available under the wage loss system. Consider the case of a person left with a 6% permanent impairment -- this is the current rating for a single level spinal disc herniation. Pre-1990, the injured worker was eligible for 520 weeks of benefits. This person would have to perform weekly good faith job searches and prove a connection between his injury and wage loss to receive benefits. The 1990 changes reduced eligibility for a 6% impairment to 78 weeks. If this reduction were not drastic enough, in 2003 the wage loss system was eliminated altogether, replaced by one in which an injured worker left with a 6% permanent impairment would receive 12 weeks of impairment benefits. Period. So, in little more than 21 years, wage loss benefits have been reduced by 98%.

Before 1993, Chapter 440 contained explicit language calling for workers' compensation laws to be liberally construed in favor of injured workers. When in doubt, rule in favor of the worker. This worker friendly mentality was adopted in 1935, when the Florida Legislature first enacted the "Workman's Compensation Act." The 1993 Legislature had no use for this attitude and cut it out of the statute.

Continue reading "Florida's Workers' Compensation System is Worse Than Ever ... If You're an Injured Worker" »

March 10, 2013

Settlement Considerations in Florida Workers' Compensation Cases

people.jpgI discuss settlement with our workers' compensation clients every day of the week. Even people we don't represent call on a regular basis to pick my brain about settlement. Each case has its own unique set of variables. No blueprint is available to provide answers.

Some basic principles do apply in every Florida workers' compensation case. It is important for them to be understood.

  1. Neither the employer/carrier (e/c) nor the injured worker/claimant can be forced to settle a Florida workers' compensation case. If there is going to be a settlement, it must come by agreement of the parties.

  2. No judge or jury can order the e/c to pay a lump sum amount for future benefits. While workers' compensation judges can order the e/c to provide some future benefits, the payout only comes as the benefit accrues. For example, the judge can make an e/c responsible for attendant care, but the e/c only pays as the service is provided. Lump sum verdicts are the remedy in civil cases, not in workers' compensation cases.

  3. There are no juries in workers' compensation cases, only workers' compensation judges appointed by the Governor of the state. Juries render verdicts in civil cases.

  4. Injured workers never receive compensation for pain and suffering in Florida workers' compensation cases. Compensation for pain and suffering is exclusive to civil liability cases. While an employer can sometimes be sued for civil damages, it is a rare exception. It is not uncommon, however, for a third party to be sued in civil court for causing the employee's job-related accident. For example, our office is currently prosecuting a civil action for a woman who slipped in wet paint as she was leaving work. The case is against her employer's landlord. We settled the workers' compensation case against her employer (and its insurance company) six months ago.
Settlement value is based on exposure. How much a case is worth at any given moment in time depends on how much the case can reasonably be expected to cost e/c in the future if it does not settle. Since the e/c is not in the business of giving gifts to injured workers, it will never settle a case for more than what it projects as its long term exposure. In fact, the e/c won't even settle for an amount equal to its projected exposure. If a deal is to be made, it will have to be for a fraction of e/c's worst case scenario analysis. The main reason for this is because the e/c earns money on its money. Rather than pay the full amount today, the e/c is better off investing the money and paying it off over time. Another reason why less than full exposure is paid today is because workers' compensation claims die with the claimant. The e/c's obligation to pay benefits ends when the claimant dies. Whatever money e/c has in reserve to meet is future obligations becomes its money with the passing of the claimant.

Continue reading "Settlement Considerations in Florida Workers' Compensation Cases" »

February 4, 2013

Florida Workers' Compensation Permanent Total Disability (PTD) and the Social Security Disability (SSD) Offset

law books.jpgBecause Florida workers' compensation permanent total disability (PTD) benefits are paid at the rate of 66-2/3% of an injured worker's average weekly wage (AWW), an employee qualifying for both PTD and Social Security Disability (SSD) benefits may be in line to receive combined payments in excess of his or her AWW. Is this allowed under Florida law? The answer is, it depends.

Florida Statute 440.15(9)(a) and 42 U.S.C. s. 424(a) address the issue. The federal law allows the combined payments to equal 80% of a person's average current earnings (ACE). ACE is a calculation, based on one of three formulas, used by the United States Social Security Administration to determine monthly SSD payments. Payments in excess of the 80% are subject to an offset.

Who gets the offset, the federal government, against SSD, or the workers' compensation insurance companies? Unless a state has laws allowing workers' compensation carriers to take the offset, the offset belongs to the Social Security Administration. The SSA will reduce SSD payments to bring the combined benefits down to the 80% mark.

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