Workers' Compensation

November 10, 2010

Florida Workers’ Compensation Temporary Partial Disability (TPD) Benefits – The Claimant’s Burden of Proof

Florida employees injured in the course and scope of their employment may be eligible for workers’ compensation wage loss benefits. Florida’s workers’ compensation system offers three types of wage loss benefits – Temporary Partial Disability (TPD) (Florida Statute 440.15(4)), Temporary Total Disability (TTD) (440.15(2)), and Permanent Total Disability (PTD) (440.15(1)). Of the three types of benefits, only TPD and TTD are available during the recovery stage, or before maximum medical improvement (440.02(10)). Of the two, only TPD is payable while the injured employee is able to work. This blog will discuss what evidence injured workers must present to make a prima facie case to receive TPD.

Under 440.15(4)(a), TPD benefits are payable “if overall maximum medical improvement has not been reached and the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work.” For years, the second clause of this simple sentence has resulted in extensive litigation. With the recent decision in

November 9, 2010

Florida Workers’ Compensation and Independent Contractors

by Jeffrey P. Gale, P.A.

With the exception of independent contractors working or performing services in the construction industry (Florida Statute 440.02(15)(c)3), individuals working as independent contractors are not eligible for workers’ compensation benefits from the companies for whom they are performing services. The reason why is because they are not considered employees of those companies. F.S. 440.02(15)(d)1.

These statements should not be misconstrued as meaning that employees of independent contractors are not entitled to workers’ compensation. Such employees are entitled to workers’ compensation from their own employers. However, in many instances, the individuals who work as independent contractors are self-employed or work for others who do not have workers’ compensation insurance.

Many companies seek to limit their workers’ compensation insurance premiums and claims by classifying individuals as independent contractors when they are not. On the opposite end of the spectrum, some companies try to avoid being sued for negligence by classifying independent contractors as employees. See Florida Statute 440.11 Exclusiveness of Liability.

The issue has been heavily litigated in Florida. To provide some guidance on the issue, the Florida Legislature created a checklist of factors to consider in making the determination. See 440.02(15)(d). The factors include:

Whether or not the individual maintained a separate business, with his or her own work facility, truck, equipment and materials;
Whether or not the individual holds or has applied for a federal identification number;
Whether or not the individual performs work for any entity in addition to the person for whom he or she was performing work at the time of the accident;
Whether or not the individual incurs the expenses of the work performed;
Whether or not the individual may realize a profit or a loss in connection with the work;
The success or failure of the individual’s business depends on the relationship of business receipts to expenditures

October 31, 2010

Florida Workers’ Compensation Permanent Total Disability (PTD) Benefits

by Jeffrey P. Gale, P.A.

There are three primary types of lost wage, or indemnity, benefits available to injured workers under Florida’s workers’ compensation system. They are: Temporary Partial Disability (440.15(4)); Temporary Total Disability (440.15(2)); and Permanent Total Disability (440.15(1)). Each of the temporary benefits is available for a limited period of time – not to exceed 104 weeks (see 440.15(2) & (4) – while the injured worker is actively receiving medical care prior to reaching maximum medical improvement (440.02(10). PTD is the only one of the three available after maximum medical improvement (Section 440.15) … and the most difficult to receive.

For the most part, TTD and TPD benefits are available upon a simple showing that the wage loss is the consequence of the injury. Much more is required to establish entitlement to PTD.

To qualify for PTD, one must show that he/she is not physically capable of engaging in at least sedentary duty work within a 50-mile radius of his/her residence or have sustained one or more of the catastrophic injuries listed in 440.15(1)(b). Not surprisingly, qualifying is not as easy as it may seem from a simple reading of the statute.

The sedentary work referenced in the statute can be any job in the national economy, not just the injured worker’s former job. Many claimants believe that unless they are able to return to their former employment, they are PTD. This is rarely the case. (Former employment has relevance in PTD cases, but not in the way most lay people think. Examples of sedentary work include security guard and toll booth attendant. A qualified vocational expert will come to court with a list of 200+ so-called sedentary jobs that exist in the national economy for individuals with limited educations and office skills.)
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October 22, 2010

Repetitive Trauma Injuries Under Florida’s Workers’ Compensation System

by Jeffrey P. Gale, P.A.

Most work-related injuries are caused by acute, single incident accidents. Absent the accident being the result of horseplay, injuries caused this way are typically compensable under Florida’s workers’ compensation system.

Are injuries caused by repetitive trauma over a period of time compensable? So long as the injured worker’s evidence establishes the following elements, the answer is Yes: (1) prolonged exposure; (2) the cumulative effect of which is injury or aggravation of a preexisting condition; and (3) the job subjected the injured worker to a hazard greater than that to which the public is exposed. See Festa v. Teleflex, Inc., 382 So.2d 122, 124 (Fla. 1st DCA 1980). (See, however, Rodriguez v. Frito-Lay, Inc., 600 So. 2d 1167 (Fla. 1st DCA 1992) which seems to do away with the requirement that the job subjected them to a hazard greater than that to which the public is exposed.) (See, also, University of Florida v. Massie, 602 So. 2d 516 (Fla, 1992), a Supreme Court case which provides that for a preexisting condition to be compensable, the condition must be aggravated by some non-routine, job related physical condition, or by some form of repeated physical trauma. By requiring physical stress, this case is aimed at limiting, if not altogether eliminating, mental stress as being enough to establish entitlement for aggravation of a preexisting condition.)

Significantly, in repetitive trauma cases the proof required to overcome the non-compensable presumption in 440.02(1), Fla. Stat., “clear and convincing evidence,” rather than the lower “preponderance of the evidence” standard. “Clear and convincing evidence” is evidence of a quality and character designed to produce in the judge of compensation claims’ mind a firm belief or conviction, without hesitation, as to the truth of the allegations.

The facts of the first workers’ compensation case I took to final merit hearing illustrate the law well. My client was a 60+ year old woman, who, we alleged, developed inververtebral cervical disc herniations through years of repetitive trauma from lifting box spring mattress frames. She worked in a warehouse and her job was to construct the frames, ranging in size from single to king, then physically lift and place each frame, one on top of the other, onto a dolly located beside her work station. She slowly developed severe cervical pain that forced her to retire. The employer and its insurance company denied responsibility for her injuries. Unable to point to a single incident to explain the disc herniations, we brought a Festa repetitive trauma claim against the employer/carrier.
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October 15, 2010

Forklift Accidents in the Workplace – Florida Workers’ Compensation & Civil Law

by Jeffrey P. Gale, P.A.

Workplace forklift accidents are common in Florida and often result in catastrophic injuries or death. Our law firm is currently handling two forklift accident cases, each involving serious injuries.

Employees injured in forklift accidents should be eligible to receive workers’ compensation benefits through the employer or its insurance company. The workers’ compensation benefits will consist of medical benefits and lost wages. Because of Florida Statute 440.11, these are the only benefits that will be available from the employer in most cases. There will be no compensation [from the employer] for pain and suffering, and only a remote chance of being indemnified for the loss of future earning capacity.

To be compensated for these damages, the injured worker must be able to make out a case of negligence against a third party, such as the forklift manufacturer or an outside forklift maintenance company. This is our strategy in one of the two forklift cases, in which the forklift failed to slow when it was being operated in reverse, causing the operator’s foot to be crushed between the forklift and a wall. In our other forklift case, we have eliminated third party liability as the cause.
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August 25, 2010

Florida Workers’ Compensation Law – The Shrinking Rights of Injured Workers

by Jeffrey P. Gale, P.A.

For the past twenty plus years, the quality and value of workers’ compensation benefits in Florida have diminished. This is especially true for medical benefits.

There was a time in Florida when injured workers had a strong say in the selection of their primary care physician. In turn, the primary doctor could choose other physicians to provide specialized care. The employer/carrier was required to pay for all reasonable and necessary services.

Because this system limited the ability of employers/carriers to control the injured workers’ medical care, they petitioned the legislature for changes. The legislature answered their call … or so they thought.

In 1994, the Florida Legislature met in Special Session to revamp the workers’ compensation system. A primary focus was medical benefits. One of the brainstorms that came out of the Special Session was Managed Care.

Employers and carriers believed that a managed care system would give them greater control over the medical care received by injured workers. The plan was to limit the pool of doctors who would be allowed to treat injured workers. However, it did not work as planned because most managed care lists of authorized providers included doctors who were friendly to injured workers. Injured workers were free to choose from the list. The system survived until 2002.

In 2002, the Republican-controlled Florida Legislature, with strong backing from Governor Jeb Bush, dramatically limited the amount of control injured workers would have over their medical care. Although managed care remained in place, employers/carriers were given an alternative option of choosing all doctors. No longer would injured workers be allowed to choose their own doctors.

Not surprisingly, employers/carriers prefer this option over the more generous managed care system. Accordingly, it is rare today to find an employer or carrier utilizing managed care. (Also during this legislative session, the right of injured workers to second opinions and carrier-paid independent medical examinations (IMEs) were eliminated, making it more difficult to challenge the opinions of the employer/carriers’ hand-picked doctors.)
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August 2, 2010

Workers’ Compensation or Personal Injury? Election of Remedy (Florida)

by Jeffrey P. Gale, P.A.

The remedies available under Florida’s workers’ compensation system and its personal injury laws are significantly different in many ways. The most important difference may be that workers’ compensation does not compensate for pain and suffering (non-economic damages). For this reason, many people wish to pursue their remedy under the personal injury system.

Easier said than done….

The workers’ compensation system is essentially a no-fault system. Once eligibility is established, the benefits are supposed to begin. Establishing eligibility is usually as simple as showing that the accident occurred in the course and scope of employment. Fault is rarely an issue.

It is because of this important element that injured workers have lost the right to be compensated for pain and suffering. This element also accounts for the employer having almost absolute immunity from lawsuits seeking damages under the personal injury system.

The language granting the immunity is contained in Florida Statute 440.11(1). The exceptions [to the immunity] are contained in Sections 440.11(1)(a) & (b).

Exception (1)(a) applies to employers who have failed to secure workers’ compensation insurance or its statutory equivalent. This employer can be sued for workers’ compensation benefits or personal injury damages under traditional theories of negligence. The successful negligence litigant may be awarded compensation for pain and suffering. (Most employers are properly covered. Unfortunately, the ones who are not, commonly do not have enough money to provide workers’ compensation benefits or pay personal injury damages.)
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July 29, 2010

ACL Tear – Florida Workers’ Compensation (and Personal Injury) Law

by Jeffrey P. Gale, P.A.

The anterior cruciate ligament (ACL) is one of the most frequently injured ligaments in the human body. The typical mechanism of the injury is a non-contact twisting movement, usually due to abrupt deceleration and change of direction. Side-stepping (cutting), pivoting and landing from a jump are examples of events that may cause an ACL tear.

ACL tears can be partial or complete. A complete tear of the ACL has minimal ability to heal and often requires surgical reconstruction, as most patients suffer from functional problems, like giving way and instability, and significant pain. To a lesser extent, partial tears also produce pain and instability. There is serious debate within the medical and workers’ compensation communities about the need for surgical intervention for partial tears.

ACL reconstruction involves replacing the torn ligament, usually with the middle third patellar tendon or hamstring tendon graft. Although most people benefit from ACL reconstruction in functional terms, approximately 10% of patients require a second operation, mainly because of the loss of motion, further meniscal injury and graft failure. ACL reconstructions are not very successful in the long-run in people with chronic meniscal and chondral deficiency.

As ACL injuries typically occur in the context of physical activity, it is a common injury among manual laborers, individuals whose job duties include signficant amounts of climbing, lifting, squatting, and carrying.

Due to instability and pain associated with complete tears, manual laborers with any hope of returning to the work force will almost always require surgery and comprehensive post-surgical rehabilitation. Even then, a successful return to long-term gainful employment is not assured. Repetitive trauma associated with hours of manual labor on a daily basis can lead to pain and hasten the need for additional surgery.
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June 9, 2010

Florida Workers’ Compensation Retraining & Education Benefits

by Jeffrey P. Gale, P.A.

Florida employees injured at work may be entitled to retraining benefits. The procedure is outlined in Section 440.491 of the Florida Statutes.

Upon referral of an injured employee by the carrier (defined in section (1)(a) of 440.491), or upon the request of an injured employee, the Florida Department of Education (department) shall conduct a training and education screening to determine whether it should refer the employee for a vocational evaulation and, if appropriate, approve training and education or other vocational services for the employee. The department will not approve training and education unless it determines that the reemployment plan is likely to result in a return to suitable gainful employment.

If the department approves training and education, the money to pay for the services will come from the Workers’ Compensation Administration Trust Fund, established by s. 440.50. The training and education can be provided through community colleges, approved career centers, and other vocational services. Under some circumstances, the department will pay for a temporary residence at or near the facility where the services are being provided.
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June 6, 2010

Workers’ Compensation Permanent Total Disability (PTD) – The Shifting Standard

by Jeffrey P. Gale, P.A.

Permanent Total Disability (PTD) is the only periodic (bi-weekly) monetary payment available to injured workers after maximum medical improvement (MMI) is reached. The standard for qualifying for PTD benefits has changed numerous times over the years.

When I began handling workers’ compensation cases, in 1987, to qualify for PTD benefits an injured worker had to have a listed injury such as total blindness, amputation of an arm, or a severe brain or closed head injury, or establish that he or she was unable to perform light duty work uninterruptedly. (Light duty is commonly recognized as: (1) no lifting > 20 lbs.; (2) frequent (1/3 to 2/3 of the time) lifting or carrying objects up to 10 lbs.; (3) standing 6 out of 8 hours per day; and (4) stand and use arms and hands.)

This standard applied until 1994, when the Florida Legislature, in a Special Session convened by Governor Lawton Chiles, replaced the light duty standard with a formula tied into the Social Security Disability (SSD) standard. The Legislature believed that this formula would make it more difficult for injured workers to qualify for workers’ compensation PTD benefits. In practice, however, just as many if not more injured workers qualified for PTD under this standard.

This did not sit well with Governor Jeb Bush and his corporate constituents, so in 2002, the Republican-controlled Florida Legislature changed the standard again. The SSD formula was replaced with the requirement that injured workers must show they are unable to engage in at least part-time sedentary employment within a 50-mile radius of the employee’s residence. (Sedentary duty is commonly recognized as: (1) no lifting > 10 lbs. at a time; (2) occasional (1/3 of time) lifting or carrying small articles like docket files, ledgers and small tools; (3) sit 6 hours during 8 hour day and stand and/or walk the remaining 2 hours; and (4) good manual dexterity in both hands.) When coupled with the Legislature’s companion 2002 changes curtailing the amount of attorneys’ fees an injured workers lawyer was allowed to receive, the change dramatically reduced the number of individuals who qualified for PTD benefits.

The standard proved so onerous, that the law was revisited a few years later. The outcome of the Legislature’s decision to reconsider resulted in our current law, which provides as follows: “[I]n order to obtain permanent total disability benefits, the employee must 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, due to his or her physical limitation.” Section 440.15 Florida Statutes (2009).
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