Articles Posted in Workers’ Compensation

Florida employers with four or more employees must maintain workers’ compensation insurance or a statutorily prescribed alternative. §440.055 Florida Statutes (2015). An employer who fails to maintain the coverage may nevertheless be sued by an injured employee for workers’ compensation benefits or, in the alternative, the employee may proceed at common law to recover damages for injury or death. §440.06 Florida Statutes (2015). When sued at common law, the non-compliant employer “may not … defend such a suit on the grounds that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his or her employment, or that the injury was due to the comparative negligence of the employee.” §440.06 Florida Statutes (2015).

To limit or avoid the cost of workers’ compensation insurance, Florida employers sometimes understate payroll and/or purposely mischaracterize employees as independent contractors. Independent contractors are not employees. §440.02(15)(d).

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I have blogged often to express my displeasure and dismay with the slow and sometimes immediate erosion of benefits available to injured workers under Florida’s workers’ compensation system. This blog highlights one example.

The Florida Legislature enacted the state’s first “Workman’s” Compensation Act in 1935. While I have not done a case study of the Act and its changes from 1935, I can speak with authority on the subject from when I first became involved in the system in 1989: The quality and value of benefits available to Claimants have diminished dramatically to now.

A clear and simple example involves §440.15(2)(b) Florida Statutes.

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Florida has five district courts of appeal. These courts are charged with reviewing rulings and outcomes arising in lower tribunals. Above these courts sits the Florida Supreme Court. This court reviews decisions issued by the five lower courts of appeal.

Cases reach the Florida Supreme Court in one or more of the following ways: (1) an opinion rendered by one appellate court conflicts with an opinion of one or more other appellate courts; (2) the opinion conflicts with a Supreme Court decision; (3) the appellate court decision declares a statute unconstitutional; or (4) the appellate court declares the question(s) before it to be of great public importance. By far, number (1) is the most common method.

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The first sentence of §440.34(1) Florida Statutes advises that every attorney’s fee received by a Florida workers’ compensation claimant’s attorney must be approved by a judge of compensation claims (JCC). This is the case whether the fee is paid by the claimant, an employer, or a workers’ compensation insurance company. A violation of the law is a crime. Florida Statute 440.34 outlines the main types and amounts of fees available to claimants attorneys. (Statutes 440.105, 440.32(1)&(2), and 57.105 describe fees available as sanctions.) While fees in personal injury cases typically range from 33-1/3%-40%, the allowed percentage in workers’ compensation case is significantly less. Here is the basic formula:

Any attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years.

§440.34(1) Florida Statutes. Continue reading

Maximizing the client’s net recovery should be a primary focus in every case. Court costs, litigation and medical expenses, and insurance liens are elements often charged against the gross recovery.

One of the insurance liens is a creature of Florida Statute 440.39(2). This lien comes into play when a person injured in the course and scope of employment receives both workers’ compensation benefits and compensation from a third-party tortfeasor. 440.39(2) provides that a portion of the proceeds received from the tortfeasor must be reimbursed to the employer or its workers’ compensation insurance company.
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Some of Florida’s most severely injured workers may qualify for Permanent Total Disability (PTD) benefits under Section 440.15(1) Florida Statutes. In the absence of a catastrophic injury such as a spinal cord injury involving severe paralysis, amputation of an arm, a hand, a foot, or a leg, severe brain or closed-head injury, or total or industrial blindness, the qualifying standard is that the injured employee is not capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence. (The Florida Legislature, under the control of Jeb Bush, changed the PTD standard from “light duty” to “sedentary employment.” This significant difference keeps many severely injured, deserving workers from qualifying for PTD.)
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Our firm has been hired by a woman who recently sustained a serious leg injury while walking back to her car from a company sponsored holiday party. The employer has refused to provide workers’ compensation benefits, claiming that the accident did not happen in the course and scope of employment.

While our firm handles both workers’ compensation and premises liability cases, we have agreed to pursue a premises liability action against the employer. (The accident happened on its property.) We believe that the employer and possibly others are responsible for creating an accident-causing dangerous condition.
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Injured workers who qualify for workers’ compensation permanent total disability benefits (PTD) under Florida Statue 440.15(1), receive 66-2/3% of their average weekly wage (AWW) payable biweekly. Such injured workers may also qualify for Social Security Disability (SSD) monetary benefits payable monthly.

The sum of the two benefits may exceed 100% of an injured worker’s AWW. Is the injured worker allowed to receive more than his AWW? It depends.
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A Judge of Compensation Claims (JCC) recently denied our firm a stipulated carrier-paid attorney’s fee under the so-called medical-only section of Florida Statute 440.34. The judge rejected the stipulation because a claim for Permanent Total Disability (440.15(1)) was pending when we filed a claim for psychiatric care. The judge misread the statute.

440.34(3)(a) provides as follows:

(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees. A claimant is responsible for the payment of her or his own attorney’s fees, except that a claimant is entitled to recover an attorney’s fee in an amount equal to the amount provided for in subsection (1) or subsection (7) from a carrier or employer:

(a) Against whom she or he successfully asserts a petition for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident.

The judge relied on the words, “has not filed,” without considering the qualifying language, “at such time.”
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