Articles Posted in Employment Law

Florida Statute Section 440.09(4)(a) provides that an employee shall not be entitled to workers’ compensation benefits if the employee has intentionally or knowingly engaged in any of the acts described in s. 440.15 for the purpose of securing workers’ compensation benefits.

Knowingly presenting false ID to obtain employment is an act described in s. 440.15 as being prohibited. Will performing such an act prevent an employee injured on the job from receiving workers’ compensation benefits?

In Matrix Employee Leasing and FCIC/First Commercial v. Hernandez, 975 So.2d 1217 (Fla. 1st DCA 2008), Mr. Hernandez obtained employment by presenting an invalid social security card. The employer did not learn that the card was invalid until the day Mr. Hernandez was hurt on the job.

Relying on 440.15 and 440.09, the Employer/Carrier denied benefits. The claimant countered that because the invalid ID was used to obtain employment rather than secure workers’ compensation benefits, benefits should not be denied. The JCC [Judge of Compensation Claims] agreed, ordering the E/C to pay workers’ compensation benefits. The E/C appealed the JCC’s order.
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Many people mistakenly believe that maintenance and unearned wages for injured seamen are the same benefit. They are not.

Seamen injured while working on the high seas are entitled to no-fault benefits, in other words, benefits regardless of why the accident happened. Among those benefits are Maintenance & Cure, and unearned wages.

Maintenance is to compensate the seaman for the value of quarters and meals furnished aboard the vessel. The benefit commences on the date the seaman leaves the ship, not the date of the injury, and ends in most instances when the seaman has reached maximum medical cure.

Not surprisingly, in Jennifer Kauffman v. Community Inclusions, Inc./Guarantee Insurance Company, filed on March 23, 2011, the Florida First District Court of Appeal issued an opinion finding constitutional a Florida law, Statute 440.34, that is designed to limit the ability of injured workers to obtain workers’ compensation benefits.

The Jennifer Kauffman appeal arose out of a lower court order awarding Ms. Kauffman’s attorney a fee in the amount of $648.41. The employer/carrier were ordered to pay the fee because they had lost at the trial level in their effort to deny workers’ compensation benefits to Ms. Kauffman, who was injured on the job. Her attorney spent 100.3 hours in the successful prosecution of the claim, meaning that he was awarded $6.48 per hour. (Although JCC E. Douglas Spangler, Jr. concluded in his appealed court order that the fee was patently unreasonable, he felt constrained by the statute to award the amount he did. In his opinion, based on evidence presented at the fee hearing, a reasonable fee would have been $25,075. Judge Spangler was also dismayed that the employer/carrier were able to pay their own defense attorney $14,720 in a losing effort.)
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Since the establishment of a workers’ compensation system in Florida more than 80 years ago, business and insurance interests have steadily tried to whittle away workers’ rights with varying degrees of success. The high water mark for them arrived in the late 1990s with the election of Jeb Bush as Florida’s Governor. For the next eight years, injured workers absorbed one crippling body blow after the other from Bush and his merry band of right-wing zealots in the Florida Legislature anxious to maximize the profits of the business community at the expense of individual rights. (Jeb adopted for Florida many of the measures that his brother George before him had imposed in Texas during his reign as that state’s Governor. Get the picture?)

One of the more onerous examples of rights-limiting workers’ compensation imposed in Florida is set forth at Section 440.09(1)(b) of the Florida Statutes. This section, known as the Major Contributing Cause (MCC) Doctrine, places the burden on injured workers to prove that the industrial accident is more than 50% responsible for causing the injury. An injured worker who fails to meet this burden will be denied ALL medical care and lost wage benefits from the employer. (In contrast, the personal injury system does not summarily deny compensation to persons with pre-existing conditions whose injuries were activated, i.e., made to become symptomatic, or aggravated (permanently worsened) by an accident. Instead, the finder of fact carves out the pre-existing element from the recovery and awards the difference. Not so under Bush’s MCC system.)

The MCC is used as a defense in many cases. The E/C try to blame 50% or more of a claimant’s injury on a pre-existing condition. For older workers and those with similar prior complaints, the defense can be difficult to overcome. Sadly, many an injured worker has been denied workers’ compensation benefits because of the MCC.

Fortunately, the First District Court of Appeal has carved out an important exception to the MCC doctrine. In Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007), the court held that an employee need not meet the rigorous MCC requirements when her or his pre-existing condition is occupationally related.
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The Fair Labor Standards Act (FLSA) establishes standards for minimum wages, overtime pay, recordkeeping, and child labor. Although the Act affects more than 130 million workers, some employers and employees are exempt.

The Act applies to enterprises with employees who engage in interstate commerce, produce goods for interstate commerce, or handle, sell, or work on goods or materials that have been moved in or produced for interstate commerce. Case law has created a liberal interpretation of these elements in order to protect employees. In addition, for the Act to apply, the enterprise must have not less than $500,000 in annual dollar volume business.

Some employees who work for covered employers, may nevertheless be exempt from both the minimum wage and overtime provisions of the Act based on the work they perform. At the top of the list is the exemption for executive, administrative, and professional employees. These individuals are typically paid a set salary without regard to the number of hours spent on the job in any given workweek. (This “exemption” has resulted in a tremendous amount of court litigation. Employers often seek to avoid the Act’s overtime requirements by classifying employees as executives (e.g., “manager”), without matching the pay and job responsibilities with the title. To avoid inequity, the courts look to substance rather than rely on mere words.)

Examples of other employees exempt from both the minimum wage and overtime requirements include:

  • Casual babysitters
  • Companions for the elderly
  • Employees engaged in newspaper delivery
  • Federal criminal investigators
  • Seamen employed on foreign vessels
  • Switchboard operators

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At the urging of Governor Jeb Bush, Florida’s Republican-controlled legislature in 2002 passed a workers’ compensation bill designed to limit carrier-paid attorney’s fees to claimants’ attorneys. The measure was challenged in the courts by claimants (injured workers), who argued that it was unconstitutional (denied access to courts & equal protection) and that it should be interpreted to allow for “reasonable” attorney’s fees.

Five years after the bill’s effective date, the Florida Supreme Court, in Murray v. Mariner Health and Ace USA, 994 So.2d 1051 (Fla.2008), held that the statute provided for reasonable attorney’s fees. The court did not rule on the constitutional issues.

In a clear rebuke to the Florida Supreme Court, in it’s next legislative session, which began on March 1, 2009, less than seven months after the Murray decision, the still-again Republican-controlled legislature took another shot at limiting fees. What it did was remove the word “reasonable” from Florida Statute 440.34. The Legislature’s goal was to make it difficult for injured workers to obtain adequate legal representation by denying their attorneys reasonable attorney’s fees.

In the Murray case, Ms. Murray was successful at the trial level in convincing a judge of workers’ compensation claims (JCC) that her injuries were sustained in a work-related accident. (The employer/carrier (e/c) had denied her injuries.) In a subsequent attorney’s fee hearing, the JCC found that claimant’s counsel expended eighty hours of reasonable and necessary time on the case. However, the JCC, although concluding in his written order that $16,000 was a reasonable fee, felt constrained by the statute and awarded only $684.84, or an hourly rate of $8.11. According to the JCC, this amount was “manifestly unfair.” (Note: the e/c in this case paid their attorney $16,050 (135 hours at $125 an hour) in the unsuccessful effort to resist paying benefits.) It was this order that was appealed and eventually made its way to the Florida Supreme Court. As a result of the decision, Ms. Murray’s attorney was awared $16,000 for his efforts at the trial level.
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One of the principal reasons for business being conducted through a corporation, is for the officers, directors, managers, and shareholders of the corporation to be shielded from personal liability for the company’s failures and mistakes. Absent fraud or comingling, the so-called corporate shield is supposed to protect them from personal liability. This holds true for most business deals gone sour and accidents caused by corporate negligence such as by defective products.

To the surprise of many, the Fair Labor Standards Act (FLSA) has a vehicle for piercing the corporate shield.

Congress enacted the FLSA in 1938 to create and maintain minimum standards of living for workers in industries engaged in interstate commerce. Section 202. Congress attempted to secure this goal, in part, by enacting a prohibition which generally mandated that individuals who work more than 40 hours in a week receive an overtime premium. In essence, the Act provides for the payment of overtime wages calculated at X-1/2 for all hours worked over 40 in a week.

Some employers try to skirt the law through creating a variety of false arrangements, however, the majority of those in violation only do so through innocent ignorance or misunderstanding. In piercing the corporate veil, the FLSA does not draw a distinction between intentional acts and innocent mistakes.
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The Fair Labor Standards Act (FLSA), enacted in 1938, was Congress’s effort to create and maintain minimum standards of living for workers in industries engaged in interstate commerce. Congress attempted to secure this goal, in part, by enacting a prohibition which generally mandated that individuals who work more than 40 hours in a week receive an overtime premium. However, until 2005, drivers, drivers’ helpers, loaders and mechanics of vehicles weighing 10,000 lbs. or less who performed tasks that affected the safety of vehicles operating in interstate commerce were exempted from the maximum hours provisions of the Act, set forth specifically in 29 U.S.C. Section 207. This changed on August 10, 2005, when the exemption was removed by the enactment on August 10, 2005, of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).

The FLSA is a complicated set of laws laden with numerous exemptions and qualifications. Employers and employees should consult with a legal expert well-versed in handling FLSA cases to address the many aspects of the Act.
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worker.jpgThe question often arises in Florida as to whether undocumented workers can be compensated for lost wages (past and future) in personal injury and workers’ compensation cases. With few exceptions, the answer appears to be No.

Although the damages available in workers’ compensation and personal injury cases may differ, both offer elements of awards for lost wages. Proving entitlement requires showing that the lost wages are related to the injuries. However, the employer (wc) and defendant (pi) may nullify the proof by establishing that the claimant is prohibited from working in the United States due to immigration issues. In other words, an immigrant who is not authorized to work in the United States, cannot be compensated under Florida law for lost income resulting from an accident.

The two primary exceptions in workers’ compensation cases are (1) the employee is totally, as opposed to partially, unable to work because of his injuries, and (2) the employer knew or should have known of the employee’s status as an unauthorized alien prior to the disabling accident. (The law of Florida does not impose on an employer the burden of verifying forged or borrowed green cards – Florida Statute 448.09 – nor is there any such federal requirement.)
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Florida’s workers’ compensation system contains many different types of wage loss benefits. Each is unique in scope and character. They are:

  • Temporary total disability (TTD; 440.15(2)): Unable to work prior to maximum medical improvement (MMI)
  • Temporary partial disability (TPD; 440.15(4)): Able to work with restrictions
  • Impairment benefits (IB): Based on medical impairment rating upon reaching MMI
  • Permanent Total Disability (PTD; 440.15(1)): Unable to perform substantial gainful employment after reaching MMI. (See blog.)
  • Retraining: While being retrained in a certified program. (440.491) (See blog.)

Other monetary benefits that may be available to injured workers include:

If you have questions about any of these benefits, contact our office for a free, confidential consultation.
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