Florida Injury Attorney Blawg

Before 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" »

Florida 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" »

I 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" »

Because 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.

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

For Florida accident victims and those who care for and about them, the tyrannical reign of Jeb [Bush] the Horrible (Governor of Florida from 1999 to 2007) continues to haunt.

Once upon a time in Florida, employees hurt at work could sue their employers in tort by proving that an employer's conduct created a "substantial certainty" the harmful accident would occur. Although the standard was tough, it still gave employees harmed through conduct exceeding mere negligence a fighting chance of being fairly and fully compensated, rather than being limited to the oftentimes inadequate benefits available under Florida's workers' compensation system. A victim making the requisite showing was able to overcome an employer's workers' compensation immunity.

Dear Jeb and his uncaring Republican lackeys in the Florida Legislature were dismayed that working men (and women) had a fighting chance against the beloved "Job Creators," so they eliminated the right. In 2003, the Florida Legislature effectively overruled the Florida Supreme Court case of Turner v. PCR, Inc., 754 So. 2d 683 (Fla. 2000), the case which gave a decent interpretation to the "substantial certainty" standard, by amending Florida Statute 440.11 with the "virtually certain" standard. The pertinent language reads as follows:

The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

See F.S. 440.11(1)(b)2.

As fairly stated by the 4th DCA in List Industries v. Dalien (opinion issued on January 23, 2013), "The change from '"substantial certainty"' to '"virtually certain"' is an extremely different and a manifestly more difficult standard to meet. It would mean that a plaintiff must show that a given danger will result in an accident every -- or almost every -- time."

Continue reading "Virtually Impossible for Injured Workers to Overcome Workers' Compensation Immunity to Sue Employers for Negligence" »

As I have blogged here before, Florida's workers' compensation laws have become progressively less friendly to injured workers in direct proportion to the power gained by state Republican lawmakers. As their power has grown -- today, they control the governor's office and both chambers of the legislature -- the value of workers' compensation benefits has declined.

One way in which the significant decline has taken hold is in the apportionment of benefits. Apportionment is the means by which employers and their workers' compensation insurance companies now limit the payment of medical and indemnity benefits to injured workers. In short, their obligation is discounted by the share an injured workers' preexisting medical condition -- the term is defined in Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007) and Pizza Hut v. Proctor, 955 So.2d 637 (Fla. 1st DCA 2007) and made applicable to apportionment through Staffmark v. Merrell, 43 So. 3d 792 (Fla. 1st DCA 2010) -- contributes to his or her current medical state. (Caveat: do not confuse this concept with the concept of major contributing cause contained in Florida Statute 440.09(1)(b). See these blogs to understand that concept: Florida's Workers' Compensation System's Steady Decline Into the Abyss; and Florida Workers' Compensation Law: Proving Medical Causation.) Put another way, only the disabilities and medical treatment associated with a compensable injury shall be payable

"Apportionment is an affirmative defense; thus, the E/C has the burden of proving each element of the defense." See Eaton v. City of Winter Haven and PGCS, 1st District. Case No. 1D12-0767 and Tejada v. Collection Cheverolet, Inc., 594 So.2d 340 (Fla. 1st DCA 1992). With regard to indemnity, or wage loss benefits, what E/C must show to make a prima facie case for apportionment depends on whether or not the injured worker has reached maximum medical improvement -- "the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability". Florida Statute 440.02(10). With regard to the apportionment of medical benefits, the standard is the same pre- and post-MMI. (Note: for accidents occurring prior to October 1, 2003, apportionment of temporary disability benefits and medical benefits was specifically prohibited. This is no longer the case. Former Florida Governor Jeb Bush pushed hard for these legislative changes and others that took effect in 2003.)

Continue reading "Apportionment of Florida Workers' Compensation Medical and Indemnity (Lost Wages) Benefits" »

The only long term wage loss compensation available under Florida's Workers' Compensation system is permanent total disability (PTD). The benefit is defined in Florida Statute Section 440.15(1).

Unless the claimant sustains one of the scheduled injuries outlined in 440.15(1)(b), the only way to qualify for PTD is for a Claimant to "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." See the paragraph below the scheduled injuries in 440.15(1)(b).

The determination is made after, not before, the claimant reaches maximum medical improvement (MMI) - defined in 440.02(10) as follows: "'Date of maximum medical improvement'" means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability."

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

People hurt on the job can often bring damage claims against their employer under workers' compensation and third parties responsible for causing the accident. Normally, workers' compensation medical and lost wage benefits are provided to the injured worker before the third party case is resolved.

Florida Statute 768.76 provides that amounts owed by negligent third parties are offset by benefits injured persons receive from collateral sources. However, the offset does not apply to benefits that must be repaid. The right a source has to be repaid is known as subrogation.

Workers compensation insurance carriers have subrogation rights pursuant to Florida Statute 440.39.

Continue reading "Liability Defendant Does Not Receive Offset From Waiver of Florida Workers' Compensation Lien" »

It is customary in Florida for those wishing to settle workers' compensation cases to be required to execute a voluntary resignation document. Typical resignation language will make it virtually impossible for the former employee to maintain a viable claim for unemployment compensation benefits. To avoid this consequence, language must be added to the effect that entitlement to unemployment compensation is not being waived,

This action led to a positive outcome for the applicant in Sullivan v. Florida Unemployment Appeals Commission (1st DCA; opinion filed May 15, 2012). In its initial form, the resignation language associated with the workers' compensation settlement was silent on the issue of unemployment compensation. Ms. Sullivan refused to sign the form. Accordingly, her lawyer added the following language:

"Employer/Carrier will not contest Claimant's application or request for unemployment benefits."

The employer did not contest the language, allowing it to become part of the overall workers' compensation settlement agreement. Thereafter, Ms. Sullivan applied for UC benefits. She was denied at the hearing level and by the Unemployment Compensation Appeals Commission. However, the 1st DCA reversed those holdings, siding, instead, with Ms. Sullivan.

The reasoning behind the holding in Sullivan is set forth in Rodriguez v. Florida Unemployment Appeals Commission, 851 So. 2d 247 (Fla. 3d DCA 2003):

Employers are to be held accountable for their actions and representations to employees, particularly when modifying terms of at-will employment and when seeking participation in voluntary layoffs, buyouts or other company initiated programs. Here [the claimant] received verbal and written representations from [the employer] about the uncertainty of her job and of a buyout package with a list of benefits, as well as assurances of eligibility for other benefits, i.e., unemployment compensation. These assurances by [the employer] were not wrongful but were designed to encourage or induce the acceptance of the voluntary buyout. Given the circumstances here and the liberal purpose of the statute authorizing unemployment benefits, the requirement of "good cause attributable to the employer" was satisfied.

Continue reading "Unemployment Compensation After Settling Florida Workers' Compensation Case - The Resignation Issue" »

One of the most difficult concepts for our workers' compensation clients to understand is that they will not receive any monetary compensation through Florida's workers' compensation system for pain and suffering. None. Zero. Nada. Zilch.

The notion is counterintuitive. Compounding the difficulty in understanding, much less accepting the concept, is that pain and suffering damages are payable in other types of injury cases - e.g., premises liability, medical malpractice, products liability.

To make sure our clients understand the concept, we begin the discussion at the initial conference and keep it going until the case is brought to a successful conclusion. Even then, the concept never sinks in fully with some of our clients.

Continue reading "No Compensation for Pain & Suffering Under Florida's Workers' Compensation System" »

During the past 12 months we have represented a handful of former Southern Bell linemen injured in the course and scope of their employment. Each was hired by Southern Bell (subsequently Bellsouth, now AT&T) in the 1970s to repair and install telecommunication cable. They started working for Southern Bell in their 20s and stayed until being forced by orthopedic conditions to retire in 2010 and later.

Their orthopedic conditions were caused by years of wear and tear from climbing telephone polls while toting heavy equipment and cable. Instead of being allowed to use ladders or hydraulic lifts, the linemen were forced to shimmy the poles like island natives gathering coconuts from tall palm trees. Boot hooks, jammed into the wood poles, kept them from falling.

Our first Southern Bell lineman case involved a 61 year old gentleman who retired after 39 years, done in by bad knees. His orthopedist was recommending total knee replacement surgery.

Common sense and experience told us that his knee problems were job related. Unless there has been acute trauma, like a football injury, repetitive trauma beyond the ordinary is the usual cause for damage of this severity at such a relatively young age. 39 years of pole climbing qualifies as beyond ordinary wear and tear.

Continue reading "Workers' Compensation Recovery for Southern Bell/Bellsouth/AT&T Line Workers Damaged by Repetitive Trauma" »

Some 80 years ago in Florida, workers' compensation was substituted for the personal injury system as the nearly exclusive remedy for employees seeking compensation from employers for workplace accidents. The idea was that workers should not have to establish fault, a basic element of every personal injury case, in order to be compensated. In exchange for this valuable concession, employers were relieved from having to pay non-economic damages, broadly referred to as pain and suffering. In its original form, this quid pro quo was fair.

The quid pro quo is fair no longer. Through years of Republican rule - beginning with Governor Jeb Bush, in concert with right-wing dominated legislatures - the once equal quid pro quo balance has given way to a one-sided workers' compensation system strongly favoring employers and their insurance carriers over injured workers.

See these blogs to understand the imbalance:

• Florida's Workers' Compensation System's Steady Decline Into the Abyss


• The Steady Erosion of Florida Workers' Compensation Rights & Benefits


• Florida Workers' Compensation Law: Proving Medical Causation

Due to the gross imbalance, accident lawyers must always consider ways to overcome the workers' compensation immunity granted to employers. Unfortunately, the option is rarely available.

The known ways of overcoming the immunity have been:

1. If an employer fails to have workers' compensation coverage in place. See Florida Statute Section 440.11(a)


2. An employer commits an intentional tort that causes the injury or death. See Section 440.11(b)


3. Estoppel. The employer denies that the accident occurred in the course and scope of employment employment. See Byerley v. Citrus Publ'g, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999)

As of March 21, 2012, there may be a fourth way.

Continue reading "New Twist in Florida's Workers' Compensation Immunity Law" »

People harmed in accidents by the negligence of others often have available to them other sources, such as private insurance and governmental programs, to provide lost wages and medical benefits while they wait to be compensated by the tortfeasors (at-fault parties) for their losses. Florida Statute 768.76 calls these other sources collateral sources.

768.76(1) permits a tortfeasor an offset in the amount of any collateral source of indemnity and medical benefit unless the source of indemnity has a right of subrogation. In other words, if the recipient of the collateral source benefits does not have to repay the providers, the tortfeasor does not have to pay for them.

The reasoning behind this principle, known as the Collateral Source Rule, is to prevent victims from receiving a windfall.

Continue reading "Florida's Collateral Source Rule & Workers' Compensation Liens" »

Sometimes workers are hurt in the course and scope of their employment by the negligence of third parties. Third parties in this context are entities other than those entitled to workers' compensation immunity. Employers and some subcontractors are entitled to the immunity. Those that are not must pay damages in accordance with the personal injury laws, something quite different than the benefits prescribed by workers' compensation.

Sometimes employees are harassed or terminated by employers for claiming workers' compensation benefits. Chapter 440 does not protect employers against being sued for this type of violation. See Florida Statute 440.205. See, also, our blog, Survey of Florida's Workers' Compensation Wrongful Termination Law.

Sometimes workers' compensation insurance companies and their adjusters engage in unconscionable conduct during the claims handling process. They are not immune from suit for this type of conduct. See Aguilera v. Inservices, Inc., 905 So. 2d 84 (Fla. 2005).

When our office suspects that any one of these violations has occurred, we sometimes use the discovery procedures available in workers' compensation cases as a vehicle to learn about the potential other causes.

Continue reading "Use Workers' Compensation Case to Learn About Other Causes of Action (e.g., Personal Injury and Wrongful Termination)" »

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 " »