Articles Posted in Workers’ Compensation

For the most part, workers’ compensation insurance companies limit their payment of medical expenses to conditions caused by work-related accidents. In some instances, however, carriers may be required to cover expenses for unrelated conditions. The primary instances are when (1) diagnostic testing is required to determine the compensability of an injury, (2) an unrelated condition presents a hindrance to the recovery of a compensable medical condition, and (3) controlling an unrelated condition, like high blood pressure, is necessary to allow the claimant to undergo a related procedure, like surgery.

Both principles are grounded on section 440.13(1)(k), Florida Statutes, which provides:

“Medically necessary” or “medical necessity” means any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature.

Treatment to determine whether an injury is compensable

Laxner v. Target Corporation, 41 So.3d 396 (Fla. 1st DCA 2010). To establish entitlement to medical treatment, care, and modalities that have an investigatory or diagnostic purpose, workers’ compensation law does not require claimant to prove the major contributing cause of the need for treatment or diagnostic testing is her workplace accident or injury; rather, the award of such medical care is dependent on a finding that the evaluation is reasonably required to determine the cause and extent of claimant’s injuries.

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The current definition of “attendant care,” which is not significantly different than in past versions of the statute, is as follows:

Florida Statute 440.13(1)(b). “Attendant care” means care rendered by trained professional attendants which is beyond the scope of household duties. Family members may provide nonprofessional attendant care, but may not be compensated under this chapter for care that falls within the scope of household duties and other services normally and gratuitously provided by family members. 

At the outset, it should be noted that the Claimant has the burden of proving the quantity, quality, and duration of the attendant care. See Adams Bldg. Materials, Inc., v. Brooks, 892 So.2d 527, 530 (Fla. 1st DCA 2004) (citing Orange Cnty. Sheriff’s Dep’t v. Perez, 541 So.2d 652, 654 (Fla. 1st DCA 1989) (holding claimant has burden to prove “the quantity, quality and duration of attendant services claimed”)).

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Florida Statute 440.02(1), which is contained in the definitions section of Florida’s workers’ compensation system, defines “Accident” as “an unexpected or unusual event or result that happens suddenly.” Can an injury resulting from an event that is not unexpected or unusual be compensable under Florida’s workers’ compensation system? Yes.

In Bryant v. David Lawrence Mental Health Center, 672 So.2d 629 (Fla. 1st DCA 1996), the Employee/Claimant, who was employed as a housekeeper at a mental health facility, squatted to lift a bag of laundry off the floor of the laundry room and felt immediate pain in her right knee. She sustained a tear of the lateral meniscus in that knee.

Because squatting is not an unexpected or unusual event, the Employer/Carrier denied the claim, and it was able to get the judge of workers’ compensation claims (JCC) to agree with its position that “her [the Claimant’s] injury was idiopathic and did not arise out of the claimant’s employment because her employment did not expose her to any greater risk than she experiences in her everyday life and to which the population as a whole is exposed.” (Miriam-Webster defines idiopathic as an injury “arising spontaneously or from an obscure or unknown case.”)

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Florida’s workers’ compensation system has two distinct time bars for filing petitions to seek benefits. Most people are at least vaguely aware of one of the concepts, known as the statute of limitations (SOL). Florida’s workers’ compensation SOL is enunciated in section 440.19, Florida Statutes.

The other time bar is laid out in Florida Statute 440.185(1), reproduced below:

(1) An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under this chapter unless:

(a) The employer or the employer’s agent had actual knowledge of the injury;

(b) The cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;

(c) The employer did not put its employees on notice of the requirements of this section by posting notice pursuant to s. 440.055; or

(d) Exceptional circumstances, outside the scope of paragraph (a) or paragraph (b) justify such failure.

This blog addresses subsection (d).

The statute is often interpreted strictly to the detriment of the injured worker. Accordingly, while there is some room for challenge built into every subsection of the statute, it is nevertheless advisable to err on the side of caution by giving notice [to the employer] whenever practicable within 30 days of  having even the slightest indication a work-related injury may have been sustained.

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Individuals receiving Florida workers’ compensation benefits for serious medical conditions must give deep thought and consideration to the role of Medicare in their future medical plans. This is especially so for those who are eligible or soon to be eligible for Medicare.

Because workers’ compensation has primary responsibility [for covering medical care associated with work-related injuries] versus Medicare’s secondary payor status, failing to adequately account for Medicare’s imperatives may keep the Centers for Medicare & Medicaid Services (CMS), a branch of the Department of Health and Human Services (HHS), the federal agency that runs the Medicare Program, from covering much needed future care and services.

Most Florida workers’ compensation cases end up settling. The settlement can take the form of a lump sum (all at once) payment or a structured settlement (which may also include a lump sum component). In consideration for this compensation, claimants must typically forego the right to receive future workers’ compensation medical benefits.

Given its status as a secondary payor, Medicare expects a portion of the lump sum and structured settlement money to be used by the claimant to cover the cost of medical care received in the future in connection with the work-related injuries. Until the amount, which should be pre-established by experts and approved by Medicare — in the absence of pre-approval, we try to get the workers’ compensation insurance carrier to agree to cover the difference between the informal earmarked amount and a later amount Medicare may claim is due — is exhausted and properly accounted for, Medicare will not undertake its role as a secondary payor, i.e., begin making payments for work-related injuries. For example, if $53,000 (a number we used in a recent settlement) were earmarked for this purpose, Medicare would not make any payments until the entire $53,000 (plus interest, if applicable) were exhausted on the claimant’s medical care (for Medicare covered services only — meaning that any money expended for non-covered services does not count against the set-aside amount that must be exhausted before Medicare pays penny one.) See, July 23, 2001 Medicare memo.

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This previous blog — Florida Workers’ Compensation Permanent Total Disability (PTD) and the Social Security Disability (SSD) Offset — explains how workers’ compensation benefits and Social Security Disability benefits can offset each other. Today’s blog explains what happens when the workers’ compensation case settles.

Federal law (42 U.S.C sec. 424a) and Florida law allow workers’ compensation Employers/Carriers to reduce their payments to injured employees who are receiving both Social Security Disability and workers’ compensation indemnity benefits at the same time. Section 440.15(9)(a), Florida Statutes (2018), provides:

Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C. s. 423 shall be reduced to an amount whereby the sum of such compensation benefits payable under this chapter and such total benefits otherwise payable for such period to the employee and her or his dependents, had such employee not been entitled to benefits under this chapter, under 42 U.S.C. ss. 402 and 423, does not exceed 80 percent of the employee’s average weekly wage. (Bold added.)

When a Florida workers’ compensation case settles, the payment of indemnity benefits ends. Hence, the workers’ compensation carrier will no longer be taking an offset. This opens the door to the Social Security Administration to take the offset.

Steps are available to Florida workers’ compensation attorneys to reduce or eliminate the SSA offset. This is accomplished by doing a “Sciarotta Allocation.”

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The following editorial was published on January 16, 2018, in the Tampa Bay Times newspaper. It is fair and balanced.

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Editorial: Balancing the playing field for workers’ compensation

For the longest time, injured workers in Florida were basically at the mercy of the whims of employers to treat them fairly. A 2003 law aimed at reducing the cost of workers’ compensation coverage for businesses had the desired impact, but it also discouraged attorneys from getting involved in workers’ comp cases and resulted in a drop in the number of claims. Then the Florida Supreme Court ruled in two 2016 cases on behalf of workers’ rights, causing the pendulum to swing back in the direction of employees and resulting in significant rate increases for employers. The Florida Legislature is again proposing reforms, but it needs a more prudent and equitable approach.

Clearly, this is an area that needs to be monitored closely. Between spurious claims and the potential for excessive attorney fees, a poorly run workers’ compensation system could have an adverse impact on the state’s economy. For example, after the state Supreme Court rulings, the premiums for businesses seeking workers’ compensation insurance jumped 14.5 percent in 2016-17.

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Section 440.15(4)(e) of the Florida Statutes provides as follows: “If the employee is terminated from postinjury employment based on the employee’s misconduct, temporary partial disability benefits are not payable as provided for in this section.”

Simple enough, right? Not necessarily.

For starters, 440.15(4)(e) is qualified by section 440.02(18), which provides in pertinent part as follows:

‘“Misconduct”’ includes, but is not limited to, the following, which shall not be construed in pari materia with each other:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.

This heightens the standard for authorizing the denial of temporary partial disability benefits (TPD) above innocent acts of misconduct. If Mr. Jones is fired for showing up late to work one day because of a flat tire, it is unlikely that TPD benefits will be denied on the basis of 440.15(4)(e). Now, if Mr. Jones makes a habit of showing up late on a regular basis without a darn good excuse — and even then — the story may likely have a different ending.

In the Mr. Jones example, the distinction is between termination for cause and termination for misconduct. See Thorkelson v. NY Pizza & Pasta Inc., 956 So. 2d 542 (Fla. 1st DCA 2007) (“Clearly a claimant is not disqualified from workers’ compensation benefits just because she ‘”was terminated . . . for cause.”‘)

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Workers’ compensation claimants have the burden of showing that the workplace accident is the major contributing cause of an injury. Section 440.09(1), Florida Statutes (2017). Major contributing cause, or MCC, 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. Sec. 440.09(1).

This is not an issue in every case. Many injuries are accepted by the Employer/Carrier (E/C) without dispute. Doing so prevents the E/C from later denying compensability of the accepted injuries. However, if the E/C is uncertain of its obligation to provide benefits, it may choose to provide benefits under a reservation of rights pursuant to section 440.20(4), Florida Statutes (2017).

Unlike the unconditional acceptance, this section affords E/C the option of denying compensability within 120 days after the initial provision of compensation or benefits. If, however, the E/C fails to deny compensability of an injury within 120 days after the initial provision of benefits for an injury, it waives the right to deny compensability of this injury “unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.” § 440.20(4), Fla. Stat. (2017). See, e.g., McIntosh v. CVS Pharmacy, 135 So. 3d 1157, 1159 (Fla. 1st DCA 2014); Bynum Transp., Inc. v. Snyder, 765 So. 2d 752, 754 (Fla. 1st DCA 2000); see also § 440.192(8), Fla. Stat. (2017) (“A carrier that does not deny compensability in accordance with s. 440.20(4) is deemed to have accepted the employee’s injuries as compensable, unless it can establish material facts relevant to the issue of compensability that could not have been discovered . . .”)

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Florida law grants workers’ compensation insurance companies the exclusive authority to control the selection of the injured worker’s treating medical providers. Section 440.13(2), Florida Statutes (2017). This leads to carriers repeatedly selecting providers with a track record of siding with them.

Thankfully, the authority is not unbridled. One of the main restrictions concerns the proximity of the medical provider to the claimant’s community of residence. In Wright v. Golf Drive Residence, Inc., 412 So. 2d 884 (Fla. 1st DCA 1982), the JCC‘s decision requiring the claimant to travel from her home in Naples to Fort Myers for further treatment was reversed on appeal. The court reasoned that it was unreasonable for the deputy to require her to travel outside her home community in Naples where adequate treatment is available.* A similar result was reached in Hall’s Camp, Inc. v. Decker, 394 So. 2d 1041 (Fla. 1st DCA 1981), where the trial court was affirmed for ordering the carrier to pay for medical care provided by the only specialist in the claimant’s area. The appellate court held that it would be unreasonable for the carrier to have required the claimant to travel outside of her local Arkansas community for treatment by another orthopedic surgeon.

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