Articles Posted in Workers’ Compensation

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.
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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.
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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

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.”
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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.

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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.
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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.
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