Articles Posted in Workers’ Compensation

Pie-Chart-300x246Last week I blogged on the subject of the interplay between health insurance and disability insurance liens and recoveries in personal injury cases. Today’s topic has numerous similarities. It also has a significant difference.

Section 768.76(4), Florida Statutes controls health and disability insurance liens governed by Florida law. Section 440.39 is the companion statute that controls workers’ compensation liens. Each statute lays out a formula for satisfying liens from recoveries made in personal injury cases. The difference is not recognizable from the language of the respective statutes. In fact, the statutes read very much alike. It took case law to create the distinction.

Damages in personal injury cases fall into two broad categories: economic and noneconomic. Economic damages include past and future medical expenses and income loss. Noneconomic damages include past and future pain and suffering, mental anguish, and losing the capacity to enjoy life. Economic damages are objective. Noneconomic damages are subjective.

The benefits available in Florida workers’ compensation cases are limited to medical and lost wages (indemnity), making it similar to health insurance and disability insurance. Noneconomic damages are not available in workers’ compensation cases.

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dollars-254x300Workers injured in motor vehicle crashes while in the course and scope of employment may be eligible for compensation through uninsured/under-insured (UM/UIM) motor vehicle insurance. UM covers losses sustained by the insured, passengers, and family members through the fault of a party who fails to maintain Bodily Injury (BI) insurance. Hit-and-run and “phantom vehicle” scenarios also fall under UM coverage. UIM covers losses that exceed the limits of coverage available under the at-fault party’s BI insurance. Those same injured workers could also be eligible for workers’ compensation benefits for the same accident.

Section 440.39(3)(a), Florida Statutes (2019) states that in actions by the employee against a tortfeasor, the employee or his representative “shall sue for the employee individually and for the use and benefit of the employer, if a self insurer, or employer’s insurance carrier, in the event compensation benefits are claimed or paid….” Id. This means that the workers’ compensation insurance carrier has a lien against any judgment or settlement ultimately recovered by the employee. Id. 

UM/UIM benefits are not subject to the workers’ compensation lien. See Volk v. Gallopo, 585 So.2d 1163 (Fla. 4th DCA 1991).

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accident-1307665-162x300Most workers’ compensation and personal injury lawyers have had the occasion to deal with workers’ compensation liens. The lien, which is established by section 440.39, Florida Statutes, becomes an issue when the injured employee who has received workers’ compensation benefits also receives compensation from a third party tortfeasor in connection with the same accident. (While employers have workers’ compensation immunity providing protection against civil liability, many work-related accidents are caused by parties that don’t have the immunity.) The instructions for handling the lien are set forth in 440.39(3)(a) and Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990). (Read this blog for further explanation: Florida Workers’ Compensation Liens — 440.39, the Manfredo Formula, etc.)

Few lawyers realize that workers’ compensation employers and carriers (E/C) may bring a lawsuit against the third party tortfeasor in the claimant’s name in an effort to recoup their expenditures. This is authorized by 440.39(4)(a). The right is limited to a one year period, from the period beginning one year after the cause of action has accrued to two years following accrual of the action, and may only be brought if the workers’ compensation claimant fails to bring the suit within one year of the cause of action. If E/C fails to bring suit during this one year time period, it loses the right to do so. 440.39(4)(b).

Regardless of who brings the lawsuit, the rights of both the E/C and the claimant must be taken into account. E/C cannot disregard the claimant’s right to a say in the third party damages and the claimant cannot ignore E/C’s 440.39 lien right.

worker2-300x223“Disability” under the Longshore and Harbor Workers’ Compensation Act (LHWCA) means “incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment * * *.” § 902(10).

The big disability compensation prize under the The Act is Permanent Total Disability. The benefit is described in Section 908(a) of the Act as follows:

In case of total disability adjudged to be permanent 66 2/3 per centum of the average weekly wages shall be paid to the employee during the continuance of such total disability.

dollars-254x300Despite what some people believe, injured workers who are compensated both under workers’ compensation and the civil legal system for the same accident, do not receive a double recovery, or windfall. Section 440.39(3), Florida Statues, authorizes workers’ compensation carriers to file a lien against the claimant’s recovery in the civil action. The lien attaches to benefits recovered in the civil matter that duplicate those received by the claimant in the workers’ compensation case, typically only medical benefits and wage compensation. (The common law allows damages for pain and suffering, and loss of spousal services, which are not provided for under the workers’ compensation act. The workers’ compensation lien does not attach to these damages.)

Even if the workers’ compensation carrier does not file a notice of lien in any subsequent civil action which would operate as a lien on any judgment in favor of the injured employee, Florida’s collateral source statute would at least prevent a double recovery on the part of the injured employee. See § 768.76(1), Fla. Stat. (2019). Section 768.76 states that “the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources….”

Importantly, § 768.76(1), Fla. Stat. (2019) goes on to say that “there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.” Florida courts have stated that “workers’ compensation benefits are a collateral source” within the meaning of the statute. Am. Mut. Ins. Co. v. Decker, 518 So.2d 315, 317 (Fla. 2d DCA 1987)adopted in Liberty Mut. Ins. Co. v. Chambers, 526 So.2d 66, 67 (Fla.1988).

MoneyGrab-214x300With a sizable portion of our law firm’s practice engaged in the representation of injured workers, we often tangle with issues related to long term disability insurance. LTD is commonly offered by employers to their employees as a fringe benefit. The employer either pays the full premium, a portion thereof, or nothing at all. One advantage of a group plan (employer based) over an individual plan is that the premium is typically lower due to economies of scale. On the other hand, disputes under group plans are more difficult for insureds to prosecute as compared to individual plans, as the former fall under the less consumer friendly federal ERISA law while the latter are governed by more equitable state laws. Group or individual, benefiting from LTD insurance can prove illusory.

An LTD insurance policy is a contract. Its terms control the rights and duties of the parties to the contract. Most LTD policies provide that LTD benefits will be offset against disability payments received from other sources such as workers’ compensation and Social Security Disability (SSD). For example: assume that the LTD policy provides for a $2,000 monthly payment for a qualifying disability. However, if the insured is receiving $500 per week from workers’ compensation or a monthly payment from Social Security Disability (SSD), the $2,000 LTD payment will be reduced by the amount of those payments. Hence, a $500 weekly payment from WC will reduce the LTD carrier’s obligation to zero. Not surprisingly, LTD does not rebate the premium to its insured under this circumstance.

LTD insurance carriers know that a large percentage of disabling injuries are work related. Because the qualifying requirements for workers’ compensation disability benefits and LTD are always similar, injured workers are usually just as likely to qualify for workers’ compensation benefits as they are for LTD benefits. LTD carriers also know that those who meet their qualifying standards can also be expected to qualify for SSD benefits. Only a tiny fraction of LTD policy consumers will not be eligible for one of the other benefits if not both.

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maze2-300x225Accident victims can sometimes bring a legal claim seeking compensation for their losses. They may even have the option of electing a remedy between personal injury common law and workers’ compensation statutory law. The choice can be consequential.

Personal injury claims are cases at common law. In Florida, recoverable damages in personal injury claims include medical expenses, lost wages, and pain and suffering. In suits at common law, the 7th Amendment to the U.S. Constitution guarantees the right of trial by jury.

Workplace injury cases in Florida against employers can be limited to the statutory remedies outlined in Chapter 440 of the Florida Statutes. Cases are tried before administrative law judges (known as Judges of Compensation Claims, or JCC) and, unlike in personal injury cases, compensation for pain and suffering cannot be awarded.

Election of Remedy is a legal concept concerning:

The liberty of choosing (or the act of choosing) one out of several means afforded by law for the redress of an injury, or one out of several available Forms of Action. An election of remedies arises when one having two coexistent but inconsistent remedies chooses to exercise one, in which she or he loses the right thereafter to exercise the other. The Doctrine provides that if two or more remedies exist that are repugnant and inconsistent with one another, a party will be bound if he or she has chosen one of them. The Free Dictionary

The doctrine “… is an application of the doctrine of estoppel and provides that the one electing should not later be permitted to avail himself of an inconsistent course.” Williams v. Robineau, 124 Fla. 422, 168 So. 644, 646 (1936).

While there is plenty of case law on the subject, it is still not entirely clear what constitutes an election sufficient to lock in the choice. This uncertainty was acknowledged by the Florida Supreme Court in Jones v. Martin Electronics, Inc., 932 So.2d 1100 (Fla., 2006): “[I]n the context of workers’ compensation, the point upon which a worker’s action with regard to a compensation claim constitutes an election of the workers’ compensation remedy to the exclusion of a civil action is not entirely clear.” Jones @ 1105.

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maze1-300x225Settling an injury case is not as easy as it once was. In the old days, cases would be settled with little or no consideration being given to satisfying liens and protecting an injured person’s right to receive post-settlement Medicare and Medicaid benefits. Rather than attorney neglect, much of this was due to weak and sometimes non-existent lien rights and undeveloped requirements for protecting the interests of Medicare and Medicaid. Times have changed. This blog will touch on the interplay between Medicare Set-Asides (MSA) and Medicaid’s means-tested Supplemental Security Income (SSI) benefits.

According to the Centers for Medicare & Medicaid Services (CMS), a “Medicare Set-Aside Arrangement (WCMSA) is a financial agreement that allocates a portion of a … settlement to pay for future medical services related to the … injury, illness, or disease.  These funds must be depleted before Medicare will pay for treatment related to the … injury, illness, or disease.” While MSAs have been part of the workers’ compensation landscape for many years, it is unclear, despite years of discussion, whether they are required in personal injury cases. In cases involving serious injuries where the plaintiff will most definitely require future medical care, caution dictates considering, at least, the creation of an MSA.

Supplemental Security Income (SSI) “is a Federal income supplement program funded by general tax revenues (not Social Security taxes):

  • It is designed to help aged, blind, and disabled people, who have little or no income; and
  • It provides cash to meet basic needs for food, clothing, and shelter.”

The more countable income you have, the less the SSI payment will be. Moreover, if your countable income is over the allowable limit, you cannot receive SSI benefits at all.

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ship4-300x227The Longshore and Harbor Workers’ Compensation Act (LHWCA) and Florida’s Workers’ Compensation Act are statutory systems established to handle the provision of benefits to injured workers. The LHWC covers persons engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. The injuries must occur on the navigable waters of the United States or in the adjoining areas, including piers, docks, terminals, wharves, and those areas used in loading and unloading vessels. Importantly, Congress extended the LHWCA to include other types of employment. Employees covered by these extensions are entitled to the same benefits, and their claims are handled in the same way as Longshore Act claims. The following are the extensions of the LHWCA: Defense Base Act (DBA); Outer Continental Shelf Lands Act (OCSLA); and Non-Appropriated Fund Instrumentalities Act (NAFIA).

The LHWCA specifically excludes seamen (masters or members of a crew of any vessel, typically, employees working aboard ships, tugs, fishing boats, barges, and dredges, who would be covered by the Jones Act), and employees of the United States government or of any state or foreign government. ;

Most of the rest of Florida employees will fall under Florida’s workers’ compensation system.

While the LHWCA and Florida’s system share many of the same concepts, some of the differences between them, especially as to the quality and quantity of available benefits, are significant. For the most part, the LHWCA is more generous to injured workers. This blog will set out some of the more important differences.

Jurisdiction. The LHWC is a federal law. Jurisdiction lies with the U. S. Department of Labor Office of Workers’ Compensation Programs Division of Longshore and Harbor Workers’ Compensation. Florida workers’ compensation cases are governed by state law. Jurisdiction lies with the State of Florida Division of Administrative Hearings.

Dispute Resolution. While very different from one another, both systems function relatively well. Florida’s system is somewhat more detailed and precise. Hearings and mediations must be completed within specific time periods and its electronic filing system/database is state of the art. The federal system is more ambiguous.

Compensability. Compensability concerns whether a claim is covered or denied. While both systems are what is known as “no-fault,” meaning injured employees are not required to establish fault to be compensated, each has defenses available to employers and their insurance carriers to deny claims. Florida workers’ compensation, in particular, has two potent and popular defenses:

“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.”

The language can prove problematic for injuries superimposed on preexisting conditions such as degeneration and prior injuries. However, it is not uncommon for a work-related accident to aggravate a preexisting condition. Even if the accident-related injury does not total more than 50% of the overall medical condition, the employer/carrier (E/C) are responsible for treating the aggravation until it becomes less than the 50% of the reason for why treatment is necessary. For example, a person with a preexisting back condition that has required fusion surgery, but is otherwise doing well, may suffer an aggravation of the condition from a work related incident. If the aggravation results in the need of medical care, the E/C is responsible for the care. However, once the aggravation subsides, typically when the treating workers’ compensation doctor decides that the aggravation has reached the point known as maximum medical improvement (MMI) — 440.02(1) — compensation for further medical care and lost wages will end.

The main downside of the MCC defense comes when a work-related injury falls below the 50% level for aggravation or permanency. In this circumstance, the E/C is not responsible for any related medical or wage loss benefits. The LHWCA does not have a similar all-or-nothing standard. Benefits can be payable regardless of whether or not the work-related injury is the MCC.

440.09(3): “Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician….”

903(c): “No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee….”

Off the bat, the highlighted language shows a dramatic difference between the two standards. It is much easier for employers to establish “occasioned primarily” than “occasioned solely.” Making matters significantly worse is the following language from section 440.09(7)(b), which creates a presumption in favor of the employer that, in most cases, is exceedingly difficult to overcome:

“If the employee has, at the time of the injury, a blood alcohol level equal to or greater than the level specified in s. 316.193, or if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.”

The LHWCA has no such presumption. To the contrary, the LHWCA provides that “a claim for compensation . . . shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the injury was not occasioned solely by the intoxication of the injured employee.” 33 U.S.C. § 920(c). “[T]he employer may rebut the presumption . . . by presenting substantial evidence that is specific and comprehensive enough to sever the potential connection between the disability and the work environment.” Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642, 651 (9th Cir. 2010). This is a difficult burden for the employer to meet.

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Bicycle-300x200We represent a hardworking young college student who was struck by a hit-and-run vehicle and left for dead by the side of the road while delivering for Uber Eats on his bicycle. He spent a week in Ryder Trauma Center, a leading catastrophic care facility, with life threatening injuries ranging from traumatic brain injury (TBI) to bone fractures.

Florida Statute 627.748 imposes obligations on Transportation Network Companies (TNC) to maintain primary automobile insurance coverage while an authorized driver is engaged in service operations. The types of required coverage are death and bodily injury (BI), property damage (comprehensive and collision), uninsured/underinsured motorist (UM/UIM), and personal injury protection (PIP), with varying policy limits depending on whether the participating TNC driver is engaged in a prearranged ride or logged on to the digital network but not engaged in a prearranged ride.

Unfortunately, the statute leaves a gaping hole for victims like our young college student. By its terms, the statute is limited to situations where the TNC driver is engaged in a prearranged ride (with or for a “rider”) or is logged on to the network while operating a motor vehicle. Since a bicycle is not a motor vehicle and food is not a “rider” — defined in 627.748 as “an individual who uses a digital network … to obtain a prearranged ride in the TNC driver’s vehicle….” — our young client may never be compensated for his damages (injuries, medical expenses, lost wages).