Florida Injury Attorney Blawg

Civilized societies provide for those in need. Following work related accidents, many injured employees find themselves in need of financial and medical assistance. Considering the harsh treatment of injured workers through its workers' compensation system, it can be fairly said that the state of Florida is not civilized.

It wasn't always this way. There was a time in Florida when injured workers were treated with dignity and respect, furnished without fuss with sufficient medical and indemnity (lost wages) benefits to survive comfortably while working towards recovery and returning to work.

No more. Today's workers' compensation system is a gauntlet of detours and obstructions with little reward at the end for those few who somehow manage their way through. Making matters worse is that the lawyers who represent injured workers are severely restricted, by law, in the amount of compensation they may receive for fighting successfully against insurance companies that wrongly deny benefits, while no such limits apply to the lawyers who defend employers and their insurance companies.

This sorry state of affairs has been 20+ years in the making, although, not surprisingly, some of the more egregious aspects were promulgated during the reign of Jeb Bush as Florida's governor, from 1999 to 2007. (Governor Bush took a page from his brother George's book, who, as the Governor of Texas, presided over the dismantling of his state's WC system.)

Here's a sampling of how Florida reached this low point.

In 1990, amendments to Chapter 440, the body of law that contains Florida's 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. The 1990 amendments also reduced the 10 year wage loss program to a maximum of seven years with entitlement dependent upon the extent of permanent impairment. Under the 10 year wage loss system, injured workers left with a permanent impairment were eligible for lost wages so long as they conducted a good faith job search and were able to establish a connection between their injury and wage loss. In the case of a 6% permanent impairment, for example, which is the current guideline rating for a herniated intervertebral disc, a serious injury, the 1990 amendments reduced eligibility from 520 weeks to 78 weeks of wage loss. (Eligibility does not mean entitlement. As noted above, under the eligibility system, a job search must be performed and a connection between the wage loss and injury must be shown. Under an entitlement system, nothing has to be done or proved to receive the benefit.) In 2003, during the Bush years, the wage loss system was eliminated altogether, replaced by one in which an injured worker left with a 6% permanent impairment, for example, would be entitled to 12 weeks of impairment benefits and nothing more.

In essence, then, in little more than 21 years, lost wage benefits have gone from a maximum of 520 weeks, to a maximum of 364 weeks, to, in most instances, 12 weeks or less, a 98% reduction! (Not many injuries command a permanent impairment rating in excess of 6%.)

Prior to 1993, it was written into law that the workers' compensation laws were to be liberally construed in favor of of the injured worker. In other words, a tie goes to the injured worker. This was the friendly mentality under which the system had operated for nearly 60 years, since the Florida Legislature first enacted the "Workman's Compensation Act" in 1935. The Florida Legislature eliminated this precedent in 1993.

Continue reading "Florida's Workers' Compensation System's Steady Decline Into the Abyss" »

Two legislative sessions have passed since State Senator Chris Smith, a Democrat, whose District 29 encompasses parts of Broward and Palm counties, voted with Republicans to eliminate reasonable fees from the state's workers' compensation system for claimants' attorneys. The purpose of the bill was to keep injured workers from being able to fight for their rights. It has worked as expected.

The bill approved by Senator Smith replaced a statute that required employers and their insurance carriers to pay claimants' attorneys a "reasonable attorney's fee" for successfully securing wrongly denied workers' compensation benefits. This was done very simply by removing the word reasonable from the statute, then imposing arbitrarily low caps on fees regardless of the time, effort, and cost invested to win the case.

Not surprisingly, the legislature placed no caps on defense attorney fees, the amount employers and insurance carriers could paid their attorneys to defend cases, win, lose, or draw. A good example of this happened in Jennifer Kauffman v. Community Inclusions, Inc./Guarantee Insurance Company, a case in which the insurance company paid its attorney $14,720 in a losing cause, while the successful claimant's attorney was limited by the statute to a fee of $648.41 for 100.3 hours of work, or $6.48 per hour. (Inexplicably, the Florida Supreme Court refused to consider on appeal the challenge to the constitutionality of the fee.)

This is the type of outcome the bill was designed to create. This bill was supported by Senator Smith, the only Democrat Senator to do so. Even some moderate Republicans voted against it!!!

Hardly a ringing endorsement for the rights of Florida's working men and women.

The vote came on the last day of the 2009 legislative session. Because of the votes against by some moderate Republicans, two votes were needed from Democrats to gain passage. Those votes were obtained. However, within minutes of the vote, the other Senator changed her mind and expressed a desire to vote against the bill. Procedurally, this could be accomplished, however, it required Senator Smith to vote to allow a re-vote. He refused to do it. In essence, then, Senator Chris Smith was the deciding vote for the law that has eviscerated the rights of injured Florida workers.

Not surprisiningly, then Governor Charlie Crist failed to veto the bill.

Following this debacle on the Senate floor, I engaged in email communications with Senator Smith. He asked for my views on the subject of carrier-paid attorneys fees in workers' compensation cases. I told him what I thought. He indicated that he would work with his colleagues to gain passage of legislation to moderate the harsh consequences of the 2009 law. I told him that his chance to do the right thing was in 2009, that the odds of getting Republicans to back off from their major victory, one that set back the rights of injured workers more than any other in the 80+ years since a workers' compensation system was instituted in Florida, were slim to none.

My assessment has proved correct.

Periodically after our initial communications, I would ask Senator Smith how his efforts to even the playing field were going. I never received a response. Not surprisingly, nothing was accomplished in 2010 or 2011 to moderate the bill, and, to my knowledge, nothing is on the 2012 legislative agenda either.

(For what it's worth, at the time of his vote in 2009, Senator Smith was employed by a law firm which derived a good portion of its income from representing workers' compensation insurance companies, although Mr. Smith was not himself a workers' compensation practitioner. As of the posting of this blog, he remained an employee of the same law firm.)

This is the reality: as long as Republicans control the Florida Legislature, nothing will be done legislatively to change the law. If change is to come, it must come from the courts, the Florida Supreme Court, in particular. Sadly, this court seems to be cowed by the overbearing might of right-wing politics.

Continue reading "Workers' Compensation: Florida Senator Chris Smith No Friend of Injured Workers " »

Florida Statute 440.205 is supposed to protect employees from being terminated for making workers' compensation claims. Making a claim can be as simple as reporting an accident. It does not require the filing of a formal Petition for Benefits with DOAH.

Proving a claim for wrongful termination can be difficult. Florida employers are not required to modify work duties or hold jobs open while employees recover from injuries, and Florida is an "At Will" employment state, a legal principle that allows employers to terminate employees at will, for no reason at all. (Thankfully, in addition to the protections of 440.205, At Will is constrained by the U.S. Constitution's prohibition against discrimination based on age, race, and religion. Whistleblowers, individuals who report illegal activity, also are protected against At Will termination. Ironically, it is often safer for employers to fire employees for no reason at all than to fire for particular reasons.)

Employers hide behind these protections when accused of wrongful termination. In appropriate situations, they should be challenged.

An employer found to have violated 440.205, can be liable for civil damages such as lost wages and emotional distress, and subject to criminal fines as a second degree misdemeanor.

Continue reading "Protection From Wrongful Termination for Injured Florida Workers" »

Employees injured while working in accidents caused by third parties may be entitled to compensation through Florida's workers' compensation system and its personal injury laws. In the context of this blog, a third party is a person or company other than an injured worker's employer. Examples include manufacturers of defective machinery and negligent operators of motor vehicles.

Florida's workers' compensation system is a no-fault system, meaning that for an injured worker to be eligible for benefits, the fault of another in bringing about the accident need not be proved. This is one of the biggest differences between the workers' compensation system and the personal injury system, which is fault based.

To prevent the person harmed from receiving a windfall recovery, some or all of the money received from the third party must be repaid to the employer or the workers' compensation carrier in rough proportion to value of the benefits they furnished. In other words, employers and workers' compensation carriers have subrogation rights against the third party proceeds. This right is commonly referred to as the workers' compensation lien.

Workers compensaiton is a creature of statute - see Chapter 440 of Florida's statutes - and the right of subrogation is derived, in particular, from Section 440.39(2).

The employer or carrier can agree to waive the lien. However, the waiver may come at a cost, typically a reduction in the amount of money the employer/carrier are willing to pay to settle the workers' compensation case.

More often, employers and carriers do not agree to waive liens. Fortunately, very rarely does the amount paid to satisfy a workers' compensation lien equal the full amount of the lien.

440.39 describes the formula for satisfying the lien. The formula has been explained in clearer terms in the Florida Supreme Court case Manfredo v. Employer's Casualty Insurance Company, 560 So.2d 1162 (Fla 1990).

This is the formula: Third party settlement amount less (-) attorney fees and costs divided by (/) full case value = the % value of the wc lien.; and here is the formula by way of an example:

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

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

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

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

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

Continue reading "(Manfredo) Formula for Satisfying Florida Workers' Compensation Liens From Personal Injury Proceeds" »

Most Florida accident cases involving personal injuries - e.g., motor vehicle; premises liability; medical malpractice - include an element of monetary compensation for pain and suffering damages sustained by victims through the fault of others. Workers' compensation claimants are not entitled to compensation for pain & suffering.

Florida's workers' compensation system was established more than 75 years ago to provide basic benefits (medical and indeminty) to injured workers without regard to fault. In theory, the entitlement to benefits is supposed to be as simple as establishing that the claimed injuries have resulted from an accident occurring in the course and scope of the employment. As long as the accident was not caused by horseplay or intentionally by the person injured, workers' compensation benefits are supposed to be provided. This is so even if the accident was the fault of the injured worker.

Continue reading "Compensation for Pain & Suffering Not Available Under Florida's Workers' Compensation System" »

For the past twenty years I have witnessed the steady and sometimes precipitous decline of rights and benefits available to injured workers under Florida's workers' compensation system (Chapter 440 Florida Statutes). The losses have come through legislative, rather than court, action, mostly by the hand of Republican legislators. Not surprisingly, the most damaging losses occurred during Jeb Bush's eight-year (1999-2007) mean-spirited reign as Florida's Governor.

MEDICAL
No longer may injured workers select their own treating doctors. Sadly, the Florida Legislature has turned this most important decision over to the workers' compensation insurance companies. (See Florida Statute 440.13.) The doctors they select understand who is feeding them and why. Fearing that they will lose business if they side with injured workers, these doctors too often put the insurance companies' best interests before those of their patients.

Prior to the changes, patterned after laws instituted in Texas by George Bush, who was the Governor of that state, Florida's injured workers were allowed to select the initial treating doctor and a second treater if desired, and have an independent medical evaluation performed at the carrier's expense. No longer. The right to select treating doctors has been eliminated and the IME, which can cost in excess of $1,000, must now be paid out-of-pocket by injured workers, who often have barely enough money to buy food.

LOST WAGES
Like medical benefits, lost wages have taken a big hit from Jeb Bush and Republican legislators. Including for the problems associated with partial doctors, as described above, it has become more difficult to qualify for temporary lost wage benefits (TPD and TTD) and nearly impossible to qualify for permanent lost wage benefits (PTD). Additionally, a limit of 104 weeks, without regard to an injured workers actual medical statuts, has been placed on the right to receive temporary benefits. (F.S. 440.15 addresses the various types of lost wage benefits.)

Continue reading "The Steady Erosion of Florida Workers' Compensation Rights & Benefits" »

Because of the limits on compensation available to injured employees through Florida's workers' compensation system, Chapter 440, the preferred remedy in cases involving some negligence on the part of the employer is an action at law for damages on account of such injury or death. In contrast to workers' compensation, this remedy allows for damage awards based on mental pain and suffering, loss of consortium, loss of the decedent's companionship and protection, past and future loss of support and services.

Unfortunately, the remedy is rarely available to employees or their survivors against employers. Florida Statute 440.11 sees to this limitation by giving employers workers' compensation immunity.

Continue reading "Overcoming Workers' Compensation Immunity in Florida" »

The legal principle which binds a litigant to the path chosen to right a wrong is known as election of remedies. The principle should not be confused with the procedure of seeking alternative remedies within the same forum, best illustrated by a multi-count complaint asserting various legal theories of recovery.

Although not a common element in most cases, the election of remedies issue does arise with some frequency in connection with workers' compensation and personal injury cases.

For the most part, it is clear when a worker has been injured on the job. Falling from a roof and being struck by a forklift are clear examples of work related accidents. Under Chapter 440 of Florida's Statutes, Section 440.11 in particular, most employers with four or more employees will have what is called workers' compensation immunity for these types of accidents. What this means is that most employees are limited to the remedies available under Florida's workers' compensation system.

Continue reading "Florida Election of Remedies Law in Context of Workers' Compensation & Personal Injury" »

Injured Florida workers who seek workers' compensation medical or indemnity (wage loss) benefits will see and be required to complete a variety of forms. It is important for Claimants to understand and complete the forms properly. Being wrong can lead to serious consequences including the denial of benefits and criminal prosecution for insurance fraud.

We represent injured workers. This blog will discuss the forms from that perspective.

First Report of Injury or Illness (DFS-F2-DWC-1)
This form contains basic factual information, such as a brief description of the accident, contact information of the employee, employer, and workers' compensation insurance company, wage information, and is submitted to the workers' compensation carrier and the Division of Administrative Hearings (DOAH), the state agency responsible for administering workers' compensation cases. It is to be completed as soon after the accident as possible and signed by the employer and, when possible, the injured worker. Injured workers should review the form carefully, especially with regard to the description of the accident, before signing, and obtain an executed copy at that time.
Rule 69L-3.004
Specific Authority: 440.185(2), (5), (9), 440.19, 440.35, 449.591 FS. Law Implemented 440.185(2), (3), (5), 440.207(2), 440.35 FS. History-New 8-30-79, Amended 12-23-80, 11-5-81, 6-12-84, Formerly 38F-3.04, Amended 1-1-87, 4-11-90, 1-30-91, 11-8-94, Formerly 38F-3.004, 4L-3.004, Amended 1-10-05.

Wage Statement (DFS-F2-DWC-1a)
This form is not prepared or signed by the injured worker. It contains the employee's wage information in order to calculate his/her average weekly wage (AWW). If applicable, the 13 week period immediately preceding the accident will be used to derive the AWW. Otherwise, a series of formulas will be considered, including the earnings of similar employees with the requisite 13 weeks of earnings and the contract of hire. Where the numbers provided in the form are questionable as to their accuracy, they can be cross-checked by payroll records and paycheck stubs. Frequent battles are fought over the correct AWW. Fringe benefits (e.g., health insurance) may also figure into the calculation.
Rule 69L-3.0046
Specific Authority: 440.14, 440.185(5), 440.591 FS. Law Implemented 440.12(2), 440.185(5), (9) FS. History-New 1-10-05, Amended 3-16-09.

Fraud Statement
Upon request from the employer, the employee must sign and return a form containing the language located in Florida Statute Section 440.105(7). The ostensible purpose of the form is to inform the claimant that knowingly and intentionally filing a false claim may constitute insurance fraud. We view it as a not so subtle message from employers and insurance carriers for employees to think twice about seeking workers' compensation benefits, even entirely legitimate claims. Nevertheless, unless the form is signed and returned, benefits can be suspended. The employer/carrier are limited to one form per year.
Rule 69L-3.0047
Specific Authority: Specific Authority 440.105(7), 440.591 FS. Law Implemented 440.105(7) FS. History-New 1-10-05.

Medical Authorization and Description of Incident
Workers' compensation insurance carriers sometimes ask claimants to execute these forms. This particular Description of Incident form is different than the one contained in the First Report of Injury or Illness.

The Patient/Physician privilege of confidentiality is one of the most sacred in American jurisprudence. Sadly, the Florida Legislature has decided that injured workers lose this privilege in exchange for receiving workers' compensation benefits. Pursuant to 440.13(4)(c), "An employee who reports an injury or illness alleged to be work-related waives any physician-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation." Accordingly, the only time an employee must execute a carrier's medical authorization form is when "medical records, reports, and information of an injured employee are sought from health care providers who are not subject to the jurisdiction of the state." 440.13(4)(c).

There is nothing in the law that requires the claimant to complete this Description of Injury form. We view the form as an effort by the employer/carrier to obtain evidence on which a denial of benefits or a claim for insurance fraud can be based. We do not allow our clients to complete this form.

We do require our clients to sign our firm's medical authorization form. This allows us to obtain their medical records from all providers.

Mileage Reimbursement
The carrier should send this form to the claimant to be completed and returned. Properly completed, the carrier should reimburse the claimant for travel expenses to and from authorized medical appointments, including physical therapy. The information provided in the form includes dates of service and round trip mileage. Effective July 1, 2011, the Internal Revenue Service's deductible rate is 55.5 cents per mile.

It is important to be accurate with the information provided. Carriers will examine the information closely for misrepresentations, hoping to find even the slightest error on which to base a denial of benefits. Claimants should not fudge the numbers to make a few dollars.

Upon request, carriers will provide transportation.

Continue reading "Florida Workers' Compensation Forms - From the Claimant's Perspective" »

In its infinite, albeit, less than perfect wisdom, American jurisprudence places on the party asserting a claim the burden of proving the claim. In criminal and civil cases, the proponent must, to use a sports analogy, outscore the opponent in order to win. A tie or less is never a victory but often a defeat. The standard in Florida workers' compensation cases may be an exception to the rule.

Everyone is familiar with the standard of proof in criminal cases. For a defendant to be convicted, the prosecution must prove the defendant's guilt beyond and to the exclusion of any reasonable doubt. In college football terms, this is the equivalent of a 63-10 pasting.

This is an extremely high standard, as well it should be.

The burden of proof is not nearly as high In civil cases (e.g, personal injury; medical malpractice; premises liability). Nevertheless, the proponent (i.e., Plaintiff; Claimant; Petitioner) maintains the burden of presenting evidence that tips the scale in his or her favor, i.e., the weight of the evidence must favor the proponent by at least 51%. The standard is described in Florida Standard Jury Instruction 401.3 GREATER WEIGHT OF THE EVIDENCE as follows:

"Greater weight of the evidence" means the more persuasive and convincing force and effect of the entire evidence in the case.

Instead of a 63-10 shellacking, a last second field goal for a 1 point victory will do the job.

Continue reading "Florida Workers' Compensation - The Claimant's Standard of Proof" »

For an accident to be compensable (or covered) under the workers' compensation system, it must happen in the course and scope of the employment. Generally, where the employment has fixed time and location requirements, accidents off the premises during lunch are not compensable. In other words, these accidents do not occur in the course and scope of the employment. In contrast, accidents occurring on premises during breaks or while the employee is attending to personal comfort are more likely to be considered compensable. (Caveat: an exception to compensability arises where the accident has happened during a substantial deviation from the break.)

Lunch Time Accidents

• On Employer's Premises: Compensable. Doctor's Business Service, Inc. v. Clark, 498 So.2d 659 (Fla. 1st DCA 1986). No compensability during substantial deviation. What constitutes a "substantial deviation" will be decided on a case-by-case basis.


• Away from Employer's Premises: Not compensable. The same principles apply as in the "going and coming rule," i.e., accidents while going and coming from work at the beginning and end of the work day.

Personal Comfort and Rest Breaks Generally, accidents that happen during these situations are compensable. A primary distinguishing reason for compensability is the duration of the event. The courts consider control by the employer over the employee to be an important factor. The duration of off-site lunch breaks loosen the grip of control enough to eliminate compensability, while the degree of control maintained during personal comfort and rest breaks, even those of short duration off premises, satisfies the course and scope requirement. Although the determination, of course, must be made on a case by case basis, a helpful standard was announced in City of Miami v. Dwight, 637 So.2d 981, 983 (Fla. 1st DCA 1994): "If the employer, in all the circumstances, including duration, shortness of off-premises distance, and limitations on off-premises activity during the interval can be deemed to have retained authority over the employee, the off-premises injury may be found to be within the course of employment."

Continue reading "Florida Workers' Compensation Law: Distinction Between "Lunch Periods" and "Breaks" for Purposes of Compensability"" »

Chapter 440, the body of statutes governing Florida's workers' compensation system, places on the injured worker, also known as the Claimant, the burden of proving the accident caused his or her injuries. Almost always, medical evidence is required to meet the burden.

Certain elements must be established to meet the burden. Shown below is the information I rely on to keep from missing one or more critical elements. Also helpful in realizing the essential medical proof is Form DWC-25, Florida Workers' Compensation Uniform Medical Treatment/Status Reporting Form, the form all authorized doctors are required to complete and submit to the carrier after every appointment.

Florida Statute 440.09 Coverage.---- (1) The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment. The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings, and the accidental compensable injury must be the major contributing cause of any resulting injuries. For purposes of this section, "major contributing cause" means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought. In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable. For purposes of this section, "objective relevant medical findings" are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing. Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must be by medical evidence only, as demonstrated by physical examination findings or diagnostic testing. Major contributing cause must be demonstrated by medical evidence only.

Elements of 440.09 requiring medical testimony:

• The injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty,


• based on objective relevant medical findings,


• and the accidental compensable injury must be the major contributing cause of any resulting injuries.


• For purposes of this section, "major contributing cause" means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought.


• In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. (Note: What does "medical certainty" mean? Who knows. Black's Law Dictionary says that it is more than probable. Regular dictionary says certain means: inevitable, sure to happen, indisputable, dependable. If the doctor asks what it means, tell him or her that it is something that is reasonably sure to happen.)


• Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable.


• For purposes of this section, "objective relevant medical findings" are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing.


• Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must be by medical evidence only, as demonstrated by physical examination findings or diagnostic testing.


• Major contributing cause must be demonstrated by medical evidence only.

Florida Statute Section 440.02(1): When used in this chapter, unless the context clearly requires otherwise, the following terms shall have the following meanings:
(1) "Accident" means only an unexpected or unusual event or result that happens suddenly. Disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or controlled substances or narcotic drugs, or a disease that manifests itself in the fear of or dislike for an individual because of the individual's race, color, religion, sex, national origin, age, or handicap is not an injury by accident arising out of the employment. Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable, with respect to any compensation otherwise payable under this chapter. An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.

Elements of 440.02(1) requiring medical testimony:

• Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable....


• An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.

Continue reading "Florida Workers' Compensation Law: Proving Medical Causation" »

Florida employers who maintain workers' compensation insurance in accordance with the requirements of Chapter 440 of the Florida Statutes, generally are immune from being sued civilly for damages by employees injured in the course and scope of their employment. See Florida Statute 440.11. (For an explanation of the differences between workers' compensation cases and civil cases, see these blogs: The Differences Between Florida Workers' Compensation and Personal Injury Cases; Legal Distinctions Between Florida's Workers' Compensation System and Wrongful Death Act for Loss of Life.)

For some employers, the immunity afforded by Florida law is not enough to satisfy their quest to deny benefits altogether to those who have been seriously injured in accidents. Not only will the employer try to deny that the accident happened in the course and scope of employment, but when a civil suit is brought after workers' compensation benefits have been denied, the employer asserts the defense of workers' compensation immunity in the civil suit. What the employer is doing is denying on the one hand that the injured person is entitled to workers' compensation benefits, while claiming on the other hand in the civil case that the plaintiff's only available remedy is through the workers' compensation system.

Contradictory. Hypocritical. Thankfully, it doesn't work in Florida.

In Rush v. BellSouth Telecommunications Inc. d/b/a AT&T Florida, 18 FLWCLB 22 (N.D. Fla. 2011), this tactic was attempted by the employer. In a well-reasoned and sensible decision, the United States District Court shot it down.

Ms. Rush first filed a workers' compensation Petition alleging "exposure to toxic mold, MRSA [methicillin-resistant staphyloccus aureus], and other complications related to `sick building.'" BellSouth responded to the Petition by asserting that "the exposure did not occur in the course and scope of her employment." Rather than fight this defense through the workers' compensation system, Ms. Rush dismissed the Petition and filed a negligence action in which she alleged "that BellSouth was negligent in its cleaning, maintenance, and operation of the Garden Street workplace; and that this negligence caused Rush to suffer injury and resulting damages."

Continue reading "Florida Workers' Compensation Immunity - Tort Action Against Employer" »

Permanent Total Disability (PTD) (440.15(1)) is the most valuable wage loss benefit available under Florida's workers' compensation system. Unlike Temporary Partial Disability (TPD) (440.15(4)) and Temporary Total Disability (TTD) (440.15(2)), monetary benefits that are available for only a short period of time, PTD can last for years and includes an annual supplemental increase equal to 3 percent of her or his weekly compensation rate.

The PTD standard has changed numerous times over the years. Until 1996, the standard was to meet a scheduled catastrophic injury, like total blindness or loss of limbs, or prove the inability to perform at least light duty work uninterruptedly on a full-time basis. In 1996, the light duty standard was replaced by the standard required to qualify for Social Security Disability (SSD) benefits, which the Florida Legislature believed was more demanding. In 2002, thanks to Governor Jeb Bush, the SSD standard was replaced by an even more stringent standard. Injured workers would be required to prove that they could not perform at least sedentary duty work on a part-time basis within a 50 mile radius of their homes. This standard prevented all but the most catastrophically injured workers from qualifying for PTD.

Because this standard proved so onerous... and unfair, the Florida Legislature was persuaded to eliminate the part-time element from the PTD requirement in its 2006 version of 440.15.

Pre-1996, one of the ways claimants proved entitlement to PTD benefits was by performing an exhaustive but unsuccessful job search. Because of the many variations in the standard since then, many workers' compensation practitioners believed that this method no longer applied and abandoned it as a way of proving entitlement to PTD.

Thankfully, in Blake v. Merck & Co., 43 So. 3d 882 (Fla. 1st DCA 2010) the assumption was proven wrong. The Blake court set forth three alternative methods by which a claimant may prove entitlement to PTD benefits: by presenting evidence of (1) permanent medical incapacity to engage in at least sedentary employment, within a 50-mile radius of the employee's residence, due to physical limitation; (2) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search; or (3) permanent work-related physical restrictions that, while not alone totally disabling, preclude Claimant from engaging in at least sedentary employment when combined with vocational factors.

Continue reading "Florida Workers' Compensation - Shifting Permanent Total Disability (PTD) Standard" »

For too long, Florida employers and their workers' compensation insurance carriers have been able to accuse employees of insurance fraud without consequence if proven wrong. No longer.

Until the recent decision in Carrillo v. Case Engineering Inc./Claims Center, (Fla. 1st DCA 2-11-2011), employers and their insurance carriers were free to assert the so-called "fraud defense" without regard for any negative consequences. Accordingly, with nothing to lose and much to gain, namely, claimants losing the right to all benefits, combined with an absurdly low standard of proof, carriers have used the defense indiscriminately for many years. In far too many cases, the calculation has been simply to throw the defense on the wall and hope that it sticks. If nothing else, it was a way of leveraging injured workers to settle their cases for less than full value.

Carrillo has changed the no risk element of the defense.

One of the few ways in which injured workers (claimants) can be awarded attorneys fees against employers and their insurance carriers, a valuable benefit, is if "a carrier or employer denies that an accident occurred... and the claimant prevails on the issue of compensability." Florida Statute section 440.34(3)(c).

Continue reading "Finally, Insurance Carriers Face Consequences for Pleading Fraud in Florida Workers' Compensation Cases" »