Information About the Complex Florida Workers’ Compensation Law

HISTORY

Laws in the United States of America are derived from two sources: common law and statutes (state and federal). Workers compensation is statutory with each state enacting its own laws, thus you may not be entitled to the same benefits as your friend who was injured in another state or your friend that was injured in the same state years ago. Germany created the first workers’ compensation laws in 1884, with the first in the United States created by Maryland in 1902. Florida first adopted workers compensation laws in 1935. Prior to the enactment of workers’ compensation laws an injured worker had to prove negligence on the part of the employer in order to receive any benefits. Currently, negligence or fault of the employer is irrelevant to the issue of whether an employee is entitled to receive benefits; however, in certain instances an employees fault may be used to reduce benefits, as discussed below.

COVERAGE

Over 70,000 Floridians are injured on the job every year, and that figure does not include injuries which are not reported to workers compensation insurance carriers either because the employer does not have such insurance or because the employer failed to report the claim. Nearly all employees who work for companies with four or more employees are required to be covered under a workers compensation insurance policy. Exceptions include independent contractors, domestic servants in private homes, casual laborers, some volunteers, professional athletes and agricultural farm workers. Corporate officers are allowed to waive coverage provided such waiver meets with statutory requirements. Florida provides access to injury claims thus employees should not think that future employers will not know of their claimed injuries, once they are reported to the insurance carrier they become public knowledge.

BENEFITS AVAILABLE

Workers compensation provides for numerous, but limited, benefits including medical, indemnity (lost wages), impairment, vocational rehabilitation, and death benefits. You can find out more about Florida’s Workers’ Compensation Law by visiting their website.

MEDICAL BENEFITS: Injured workers are entitled to medical benefits, with certain statutory caps on some types of treatment. These medical benefits include doctors visits, medicines, diagnostic procedures including X-rays and MRIs, physical therapy, and surgeries. Injured employees are required to pay $10 for every doctors visit once they are at MMI (maximum medical improvement).

INDEMNITY BENEFITS: The law provides for partial payment of lost wages (indemnity) in various forms. Temporary partial and temporary total benefits are available to the employee, based upon the treating physician’s diagnosis of whether the employee should temporarily remain totally off work or work under a restricted status. The employee is entitled to temporary partial disability benefits if he has not reached MMI status, the treating physician has given him work restrictions not allowing him to return to his old position and his employer will not provide him with any other work. The maximum number of weeks the employee can collect temporary benefits is 104. If the employee can not ever return to work he may be entitled to permanent total disability benefits.

IMPAIRMENT BENEFITS: Injured workers are entitled to impairment benefits if the authorized physician gives them a permanent impairment rating. The amount of the benefits is based on the number of the rating given and the average weekly wage of the employee.

VOCATIONAL REHABILITATION BENEFITS: Injured workers who have reached MMI and been given permanent work restrictions which prevent them from returning to work for the employer can apply for vocational rehabilitation benefits if they cannot find other employment. There is a limit of 52 weeks of vocational rehabilitation benefits and the weeks also count against the 104 weeks maximum of indemnity benefits available. Once surgery is recommended by a treating physician injured employees should consider the recommendation carefully because refusing the surgery and then changing one’s mind later could leave the injured employee without sufficient indemnity benefits available during recovery from surgery and/or for use during vocational rehabilitation.

DEATH BENEFITS: The beneficiaries, who are also dependents, of an injured worker who dies due to his worker’s compensation injuries may be entitled to death benefits of $150,000.00 and funeral expenses up to $ 7,500.00. The spouse of the decedent may also receive educational benefits.

DEFENSES AN EMPLOYER OR INSURANCE COMPANY MAY USE AGAINST YOU

NO COVERAGE: An employer stating that it does not have workers compensation coverage is not a defense and a workers compensation claim can be litigated against the employer without coverage. If an employer who is required to maintain coverage fails to do so and employee can bring a civil suit against the employer for his injuries.

COURSE AND SCOPE: A carrier will sometimes issue a denial of a workers compensation claim based on a course and scope defense. Essentially, the insurance company is raising the argument that the employee was not acting in furtherance of the employers benefit at the time of the accident. These types of claims are very factual in nature as the outcome of one case may be different from another simply based on whether the employer owned the parking lot.

INDEPENDENT CONTRACTORS: Many times an employee will get a 1099 tax form from an employer, thus the employee is being treated as an independent contractor by the employer. The distinction that must be raised is whether that person is an employee for workers compensation purposes, which is based on factors which determine how much control the employer had over the independent contractor. The more control the employer has the more likely the determination will be that he is an employee.

FRAUD OR MISREPRESENTATION: Carriers love to raise this defense as a successful raising of such defense will allow the carrier to escape having to provide benefits and to seek attorneys fees and costs from the claimant. Employees are not allowed to commit fraud or misrepresentation for the purpose of seeking workers compensation benefits. This fraud does not have to be in written form and can consist of untruthful statements made after the accident to supervisors, insurance company representatives, investigators or attorneys; and physicians.

FAILURE TO GIVE NOTICE: An injured employee must give notice within 30 days of realizing they have suffered a workers compensation injury which would cause them to require medical treatment and/or lost time from work. The injured employee must clearly tell his employer that he was injured while working as merely telling his supervisor that some part of his body bothered him would not put the employer on notice that the employee was injured at work. Notice should be given to the employer as soon as possible, preferably in writing.

FAILURE TO MINIMIZE DAMAGES: All injured persons, whether in workers compensation or other injury claims, and in fact all parties seeking compensation from others, must seek to minimize damages. The most obvious instance of this in when an injured worker misses doctors appointments. In that situation the carrier will stop making indemnity payments at least until the worker returns for treatment.

INTOXICATION AND DRUGS: Proof that an employee was intoxicated or had certain amounts of illegal drugs in his system at the time of an industrial accident will create a rebuttable presumption that the injury was caused by the alcohol or drugs, allowing the carrier to refuse to provide benefits. There are safeguards in place in that any positive drug test must be retested. Employees must consent to post-accident drug tests as failure to do so results in the employee being treated as if the test was positive but with no way to challenge the test results.

MAJOR CONTRIBUTING CAUSE: In order to incur liability for any medical procedure, the need for such treatment has to be related more to the workers’ compensation accident than any other factor such as pre-existing conditions or subsequent accidents.

FAILURE TO USE SAFETY DEVICES: Failure to use safety devises required by the employer, such as seat belts, safety harnesses, goggles, can result in benefits being cut by 25%.

IDIOPATHIC: Carriers are not responsible for injuries which occur in the workplace which would have occurred wherever the employee was located. An example of this is the employee whose knee suddenly gives way while walking at work. Unless the employee tripped or slipped on something or struck a hard surface not normally in the employee’s home, such an accident would probably be considered to be idiopathic or unrelated to work.

STATUTE OF LIMITATIONS DEFENSE: Injured workers in Florida are entitled to lifetime treatment if needed. So how do the insurance companies handle all their files? One of two things happens with most cases: the case settles, usually after the injured worker obtains legal counsel, or the case closes due to the statute of limitations. An injured worker has two years from the date of accident or time he realized or should have realized he was injured due to work, within which he must obtain medical treatment that was authorized by the employer or carrier, or file a Petition for Benefits. In order to keep the claim active, the injured employee must then continue to receive some authorized medical treatment at least once within each year or the claim will usually be closed and the employee will not be entitled to any further benefits. Please be advised that most physicians’ offices will require reauthorization from the insurance company if an injured worker has not treated within the last 5 or 6 months, thus injured workers want to see their authorized physician at least once every 5 or 6 months because the court strictly enforces the statute of limitations.

ILLEGAL ALIENS: A claimant who is an alien illegally in Florida is not precluded from obtaining workers compensation benefits. Illegal aliens are entitled to receive medical benefits but are prohibited from obtaining temporary partial disability benefits. The illegal alien who presents false identification in order to obtain employment does risk a felony conviction under the law. Appropriately, an employer who knew or should have known of the illegal status of the claimant will be prohibited from using the illegal status to deny any benefits.

SETTLEMENT

Many injured workers seek settlement of their workers’ compensation claims. There are many issues to consider in settlement of the claim. The insurance company attempts to calculate how much your case is worth based on the future treatment needed, any past exposure, and possibly their attorney’s fees. Pain and suffering are not an element of damages in a workers compensation claim. The insurance company would like to settle for as little as possible while the injured worker would like as much as possible. Neither the injured worker nor the insurance company can force the other party to settle. An attorney can help you deal with the insurance company to obtain the best settlement possible. CONTACT OUR FLORIDA WORKERS’ COMPENSATION ATTORNEYS FOR A FREE CONSULTATION.

CHILD SUPPORT

Child support arrearages, although not necessarily all past due child support, must be paid from the settlement. Possible conditions of settlement might require a voluntary resignation and a general release. If the injured employee is above a certain age or is getting social security benefits or reasonably likely to receive Medicare shortly of has applied for social security disability, a Medicare Set Aside account may be required.

THE ABOVE INFORMATION IS INTENDED SOLELY AS A GUIDE. WORKERS COMPENSATION LAWS CHANGE CONTINUALLY AND ARE COMPLEX.