Articles Posted in Employment Law

For the past twenty plus years, the quality and value of workers’ compensation benefits in Florida have diminished. This is especially true for medical benefits.

There was a time in Florida when injured workers had a strong say in the selection of their primary care physician. In turn, the primary doctor could choose other physicians to provide specialized care. The employer/carrier was required to pay for all reasonable and necessary services.

Because this system limited the ability of employers/carriers to control the injured workers’ medical care, they petitioned the legislature for changes. The legislature answered their call … or so they thought.

In 1994, the Florida Legislature met in Special Session to revamp the workers’ compensation system. A primary focus was medical benefits. One of the brainstorms that came out of the Special Session was Managed Care.

Employers and carriers believed that a managed care system would give them greater control over the medical care received by injured workers. The plan was to limit the pool of doctors who would be allowed to treat injured workers. However, it did not work as planned because most managed care lists of authorized providers included doctors who were friendly to injured workers. Injured workers were free to choose from the list. The system survived until 2002.

In 2002, the Republican-controlled Florida Legislature, with strong backing from Governor Jeb Bush, dramatically limited the amount of control injured workers would have over their medical care. Although managed care remained in place, employers/carriers were given an alternative option of choosing all doctors. No longer would injured workers be allowed to choose their own doctors.

Not surprisingly, employers/carriers prefer this option over the more generous managed care system. Accordingly, it is rare today to find an employer or carrier utilizing managed care. (Also during this legislative session, the right of injured workers to second opinions and carrier-paid independent medical examinations (IMEs) were eliminated, making it more difficult to challenge the opinions of the employer/carriers’ hand-picked doctors.)
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The United States Congress has declared that the purpose of the Family Medical Leave Act (FMLA), located in Chapter 28 of Title 29 of the U.S. Code , is “to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity.” Section 2601(b)(1).

To meet this goal, the FMLA is designed “to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition.” 29 U.S.C. Section 2601(b)(2).

An employer who violates the FMLA, may be required to compensate a damaged employee as follows:

  • Pay money damages equal to the amount of any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or
  • In a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, pay any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee;
  • Pay the interest on the amount described in the first bullet point calculated at the prevailing rate; and
  • Pay an additional amount as liquidated damages equal to the sum of the amount described in first bullet point and the interest described above, except that if an employer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest, respectively; and
  • Provide such equitable relief as may be appropriate, including employment, reinstatement, and promotion.
  • (These elements are contained in Section 2617 of the Act)

The employee has a duty to mitigate damages, in other words, diligently seek new employment. Failure of the employee to do so may preclude an award of back pay for the period during which employment was not sought. See, e.g., Miller v. AT&T Corp., 250 F.3d 820, 838 (4th Cir. 2001).

The award available under the first bullet point is considered compensatory or actual damages. Actual damages differ significantly from the liquidated damages award under the FMLA. Instead of being actual damages, the liquidated damages are a penalty for failing to act in good faith and with reasonable grounds for believing that its act or ommission was not a violation of 29 U.S.C. Section 2615. Importantly, the burden is upon the employer to prove both elements.
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The anterior cruciate ligament (ACL) is one of the most frequently injured ligaments in the human body. The typical mechanism of the injury is a non-contact twisting movement, usually due to abrupt deceleration and change of direction. Side-stepping (cutting), pivoting and landing from a jump are examples of events that may cause an ACL tear.

ACL tears can be partial or complete. A complete tear of the ACL has minimal ability to heal and often requires surgical reconstruction, as most patients suffer from functional problems, like giving way and instability, and significant pain. To a lesser extent, partial tears also produce pain and instability. There is serious debate within the medical and workers’ compensation communities about the need for surgical intervention for partial tears.

ACL reconstruction involves replacing the torn ligament, usually with the middle third patellar tendon or hamstring tendon graft. Although most people benefit from ACL reconstruction in functional terms, approximately 10% of patients require a second operation, mainly because of the loss of motion, further meniscal injury and graft failure. ACL reconstructions are not very successful in the long-run in people with chronic meniscal and chondral deficiency.

As ACL injuries typically occur in the context of physical activity, it is a common injury among manual laborers, individuals whose job duties include signficant amounts of climbing, lifting, squatting, and carrying.

Due to instability and pain associated with complete tears, manual laborers with any hope of returning to the work force will almost always require surgery and comprehensive post-surgical rehabilitation. Even then, a successful return to long-term gainful employment is not assured. Repetitive trauma associated with hours of manual labor on a daily basis can lead to pain and hasten the need for additional surgery.
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Compensation for pain and suffering is available in most types of accident cases. It is not available in Florida workers’ compensation cases.

Florida’s workers’ compensation system was instituted so that employees injured at work would not have to prove fault in order to receive benefits. Entitlement to compensation was to be as simple as proving that injuries resulted from an accident that occurred in the course and scope of one’s employment. In theory, at least, the system remains in place today.

In exchange for the creation of this no-fault system, injured employees lost the right to be compensated for pain and suffering. Injured workers’ are entitled to lost wages and medical benefits, but not compensation for pain and suffering.

Understandably so, this is a difficult concept for most lay people to comprehend. It is a concept that I must explain again and again to my workers’ compensation clients.

It is such a difficult issue, in fact, that I have devised an exercise to make the point. I begin by asking my clients, ‘how much money do you expect to receive in your workers’ compensation case for pain & suffering?’ Invariably, the answer is, “I don’t know.” I then ask them to close their eyes. Once this is done, I ask the question, “What do you see?” When the answer is “Nothing,” I tell them that nothing is exactly how much they will receive as compensation for pain and suffering in the workers’ compensation case. Point understood.
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After being terminated from a job, an employee may apply for Unemployment Compensation benefits through the State of Florida Agency of Workforce Administration. The employer will be notified of the application and given a chance to respond. An agency administrator will then make a decision based on the paperwork submitted by the two parties. The losing party will be advised of the decision and given the right to appeal. If an appeal is taken, the matter will be set for an evidentiary hearing before an appeals referee.

Hearings are usually conducted by telephone, with the appeals referee contacting the parties from his or her office in Tallahassee, Florida. If the employee will be represented at the hearing by an attorney, the appeals referee should be provided with this information in writing in advance, including where to contact the employee (usually at the attorney’s office).

Importantly, no matter which party is the appellant, i.e., the party challenging the administrative ruling, at the evidentiary hearing the burden of proving misconduct* to deny benefits is always on the employer. Cullen v. Neighborly Senior Services, 775 So.2d 392 (Fla. 2d DCA 2000). Not only is the burden of proof on the employer, but the proof must be by a preponderance of the evidence. Tallahassee Housing Authority v. Unemployment Appeals Commission, 483 So.2d 413 (Fla. 1986).
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To the surprise of many, Florida employees justly terminated from their jobs may nevertheless be entitled to receive unemployment compensation benefits. In other words, although an employee’s actions may justify discharge, the same conduct does not necessarily preclude entitlement to unemployment benefits. Betancourt v. Sun Bank Miami, N.A., 672 So.2d 37 (Fla. 3rd DCA 1996).

For Unemployment Compensation benefits to be denied, an employee’s behavior must rise to the level of “misconduct,” defined as acting willfully, wantonly, or be in substantial disregard of the employer’s interest. See §§ 443.036(29), and 443.101, Fla. Stat.
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Exemptions are so common in FLSA cases that practitioners accepting new cases are wise to consider the possibility in all but the most obvious situations. Along with determining the amount of overtime hours, if any, logged by employees, disputes over the applicability or not of exemptions have formed the lion share of litigation in the FLSA cases handled in my office.

Common exemptions include (typically, salaried employees):

  • Executives
  • Administrators
  • Professional
  • Outside sales workers
  • Some computer workers

Knowing the case law is a must, but can be frustrating and confusing as the decisions, both regarding factual patterns and legal pronouncements, run the gamut. In some cases, the practitioner is unable to make a clear determination. In those instances, instinct is often the best judge of whether or not a case should be pursued.
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