Articles Posted in Workers’ Compensation

Most Florida accident cases involving personal injuries – e.g., motor vehicle; premises liability; medical malpractice – include an element of monetary compensation for pain and suffering damages sustained by victims through the fault of others. Workers’ compensation claimants are not entitled to compensation for pain & suffering.

Florida’s workers’ compensation system was established more than 75 years ago to provide basic benefits (medical and indeminty) to injured workers without regard to fault. In theory, the entitlement to benefits is supposed to be as simple as establishing that the claimed injuries have resulted from an accident occurring in the course and scope of the employment. As long as the accident was not caused by horseplay or intentionally by the person injured, workers’ compensation benefits are supposed to be provided. This is so even if the accident was the fault of the injured worker.
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For the past twenty years I have witnessed the steady and sometimes precipitous decline of rights and benefits available to injured workers under Florida’s workers’ compensation system (Chapter 440 Florida Statutes). The losses have come through legislative, rather than court, action, mostly by the hand of Republican legislators. Not surprisingly, the most damaging losses occurred during Jeb Bush’s eight-year (1999-2007) mean-spirited reign as Florida’s Governor.

MEDICAL
No longer may injured workers select their own treating doctors. Sadly, the Florida Legislature has turned this most important decision over to the workers’ compensation insurance companies. (See Florida Statute 440.13.) The doctors they select understand who is feeding them and why. Fearing that they will lose business if they side with injured workers, these doctors too often put the insurance companies’ best interests before those of their patients.

Prior to the changes, patterned after laws instituted in Texas by George Bush, who was the Governor of that state, Florida’s injured workers were allowed to select the initial treating doctor and a second treater if desired, and have an independent medical evaluation performed at the carrier’s expense. No longer. The right to select treating doctors has been eliminated and the IME, which can cost in excess of $1,000, must now be paid out-of-pocket by injured workers, who often have barely enough money to buy food.

LOST WAGES
Like medical benefits, lost wages have taken a big hit from Jeb Bush and Republican legislators. Including for the problems associated with partial doctors, as described above, it has become more difficult to qualify for temporary lost wage benefits (TPD and TTD) and nearly impossible to qualify for permanent lost wage benefits (PTD). Additionally, a limit of 104 weeks, without regard to an injured workers actual medical statuts, has been placed on the right to receive temporary benefits. (F.S. 440.15 addresses the various types of lost wage benefits.)
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Injured Florida workers who seek workers’ compensation medical or indemnity (wage loss) benefits will see and be required to complete a variety of forms. It is important for Claimants to understand and complete the forms properly. Being wrong can lead to serious consequences including the denial of benefits and criminal prosecution for insurance fraud.

We represent injured workers. This blog will discuss the forms from that perspective.

First Report of Injury or Illness (DFS-F2-DWC-1)
This form contains basic factual information, such as a brief description of the accident, contact information of the employee, employer, and workers’ compensation insurance company, wage information, and is submitted to the workers’ compensation carrier and the Division of Administrative Hearings (DOAH), the state agency responsible for administering workers’ compensation cases. It is to be completed as soon after the accident as possible and signed by the employer and, when possible, the injured worker. Injured workers should review the form carefully, especially with regard to the description of the accident, before signing, and obtain an executed copy at that time.
Rule 69L-3.004
Specific Authority: 440.185(2), (5), (9), 440.19, 440.35, 449.591 FS. Law Implemented 440.185(2), (3), (5), 440.207(2), 440.35 FS. History-New 8-30-79, Amended 12-23-80, 11-5-81, 6-12-84, Formerly 38F-3.04, Amended 1-1-87, 4-11-90, 1-30-91, 11-8-94, Formerly 38F-3.004, 4L-3.004, Amended 1-10-05.

Wage Statement (DFS-F2-DWC-1a)
This form is not prepared or signed by the injured worker. It contains the employee’s wage information in order to calculate his/her average weekly wage (AWW). If applicable, the 13 week period immediately preceding the accident will be used to derive the AWW. Otherwise, a series of formulas will be considered, including the earnings of similar employees with the requisite 13 weeks of earnings and the contract of hire. Where the numbers provided in the form are questionable as to their accuracy, they can be cross-checked by payroll records and paycheck stubs. Frequent battles are fought over the correct AWW. Fringe benefits (e.g., health insurance) may also figure into the calculation.
Rule 69L-3.0046
Specific Authority: 440.14, 440.185(5), 440.591 FS. Law Implemented 440.12(2), 440.185(5), (9) FS. History-New 1-10-05, Amended 3-16-09.

Fraud Statement
Upon request from the employer, the employee must sign and return a form containing the language located in Florida Statute Section 440.105(7). The ostensible purpose of the form is to inform the claimant that knowingly and intentionally filing a false claim may constitute insurance fraud. We view it as a not so subtle message from employers and insurance carriers for employees to think twice about seeking workers’ compensation benefits, even entirely legitimate claims. Nevertheless, unless the form is signed and returned, benefits can be suspended. The employer/carrier are limited to one form per year.
Rule 69L-3.0047
Specific Authority: Specific Authority 440.105(7), 440.591 FS. Law Implemented 440.105(7) FS. History-New 1-10-05.

Medical Authorization and Description of Incident
Workers’ compensation insurance carriers sometimes ask claimants to execute these forms. This particular Description of Incident form is different than the one contained in the First Report of Injury or Illness.

The Patient/Physician privilege of confidentiality is one of the most sacred in American jurisprudence. Sadly, the Florida Legislature has decided that injured workers lose this privilege in exchange for receiving workers’ compensation benefits. Pursuant to 440.13(4)(c), “An employee who reports an injury or illness alleged to be work-related waives any physician-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation.” Accordingly, the only time an employee must execute a carrier’s medical authorization form is when “medical records, reports, and information of an injured employee are sought from health care providers who are not subject to the jurisdiction of the state.” 440.13(4)(c).

There is nothing in the law that requires the claimant to complete this Description of Injury form. We view the form as an effort by the employer/carrier to obtain evidence on which a denial of benefits or a claim for insurance fraud can be based. We do not allow our clients to complete this form.

We do require our clients to sign our firm’s medical authorization form. This allows us to obtain their medical records from all providers.

Mileage Reimbursement
The carrier should send this form to the claimant to be completed and returned. Properly completed, the carrier should reimburse the claimant for travel expenses to and from authorized medical appointments, including physical therapy. The information provided in the form includes dates of service and round trip mileage. Effective July 1, 2011, the Internal Revenue Service’s deductible rate is 55.5 cents per mile.

It is important to be accurate with the information provided. Carriers will examine the information closely for misrepresentations, hoping to find even the slightest error on which to base a denial of benefits. Claimants should not fudge the numbers to make a few dollars.

Upon request, carriers will provide transportation.
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In its infinite, albeit, less than perfect wisdom, American jurisprudence places on the party asserting a claim the burden of proving the claim. In criminal and civil cases, the proponent must, to use a sports analogy, outscore the opponent in order to win. A tie or less is never a victory but often a defeat. The standard in Florida workers’ compensation cases may be an exception to the rule.

Everyone is familiar with the standard of proof in criminal cases. For a defendant to be convicted, the prosecution must prove the defendant’s guilt beyond and to the exclusion of any reasonable doubt. In college football terms, this is the equivalent of a 63-10 pasting.

This is an extremely high standard, as well it should be.

The burden of proof is not nearly as high In civil cases (e.g, personal injury; medical malpractice; premises liability). Nevertheless, the proponent (i.e., Plaintiff; Claimant; Petitioner) maintains the burden of presenting evidence that tips the scale in his or her favor, i.e., the weight of the evidence must favor the proponent by at least 51%. The standard is described in Florida Standard Jury Instruction 401.3 GREATER WEIGHT OF THE EVIDENCE as follows:

“Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

Instead of a 63-10 shellacking, a last second field goal for a 1 point victory will do the job.
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For an accident to be compensable (or covered) under the workers’ compensation system, it must happen in the course and scope of the employment. Generally, where the employment has fixed time and location requirements, accidents off the premises during lunch are not compensable. In other words, these accidents do not occur in the course and scope of the employment. In contrast, accidents occurring on premises during breaks or while the employee is attending to personal comfort are more likely to be considered compensable. (Caveat: an exception to compensability arises where the accident has happened during a substantial deviation from the break.)

Lunch Time Accidents

• On Employer’s Premises: Compensable. Doctor’s Business Service, Inc. v. Clark, 498 So.2d 659 (Fla. 1st DCA 1986). No compensability during substantial deviation. What constitutes a “substantial deviation” will be decided on a case-by-case basis.
• Away from Employer’s Premises: Not compensable. The same principles apply as in the “going and coming rule,” i.e., accidents while going and coming from work at the beginning and end of the work day.

Personal Comfort and Rest Breaks Generally, accidents that happen during these situations are compensable. A primary distinguishing reason for compensability is the duration of the event. The courts consider control by the employer over the employee to be an important factor. The duration of off-site lunch breaks loosen the grip of control enough to eliminate compensability, while the degree of control maintained during personal comfort and rest breaks, even those of short duration off premises, satisfies the course and scope requirement. Although the determination, of course, must be made on a case by case basis, a helpful standard was announced in City of Miami v. Dwight, 637 So.2d 981, 983 (Fla. 1st DCA 1994): “If the employer, in all the circumstances, including duration, shortness of off-premises distance, and limitations on off-premises activity during the interval can be deemed to have retained authority over the employee, the off-premises injury may be found to be within the course of employment.”
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Chapter 440, the body of statutes governing Florida’s workers’ compensation system, places on the injured worker, also known as the Claimant, the burden of proving the accident caused his or her injuries. Almost always, medical evidence is required to meet the burden.

Certain elements must be established to meet the burden. Shown below is the information I rely on to keep from missing one or more critical elements. Also helpful in realizing the essential medical proof is Form DWC-25, Florida Workers’ Compensation Uniform Medical Treatment/Status Reporting Form, the form all authorized doctors are required to complete and submit to the carrier after every appointment.

Florida Statute 440.09 Coverage.—- (1) The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment. 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. In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable. For purposes of this section, “objective relevant medical findings” are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing. Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must be by medical evidence only, as demonstrated by physical examination findings or diagnostic testing. Major contributing cause must be demonstrated by medical evidence only.

Elements of 440.09 requiring medical testimony:

• 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.
• In cases involving occupational disease or repetitive exposure, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. (Note: What does “medical certainty” mean? Who knows. Black’s Law Dictionary says that it is more than probable. Regular dictionary says certain means: inevitable, sure to happen, indisputable, dependable. If the doctor asks what it means, tell him or her that it is something that is reasonably sure to happen.)
• Pain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable.
• For purposes of this section, “objective relevant medical findings” are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing.
• Establishment of the causal relationship between a compensable accident and injuries for conditions that are not readily observable must be by medical evidence only, as demonstrated by physical examination findings or diagnostic testing.
• Major contributing cause must be demonstrated by medical evidence only.

Florida Statute Section 440.02(1): When used in this chapter, unless the context clearly requires otherwise, the following terms shall have the following meanings:
(1) “Accident” means only an unexpected or unusual event or result that happens suddenly. Disability or death due to the accidental acceleration or aggravation of a venereal disease or of a disease due to the habitual use of alcohol or controlled substances or narcotic drugs, or a disease that manifests itself in the fear of or dislike for an individual because of the individual’s race, color, religion, sex, national origin, age, or handicap is not an injury by accident arising out of the employment. Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable, with respect to any compensation otherwise payable under this chapter. An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.

Elements of 440.02(1) requiring medical testimony:

• Subject to s. 440.15(5), if a preexisting disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the preexisting condition reasonably attributable to the accident is compensable….
• An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.

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