Articles Posted in Workers’ Compensation

by

In my view, one of the most important decisions in the history of Florida workers’ compensation jurisprudence is Aguilera v. Inservices, Inc., 905 So.2d. 84 (Fla. 2005). In a nutshell, Aguilera authorized civil lawsuits against insurance carriers and their adjusters “for harm caused subsequent to and distinct from the original workplace injury.”

The Supreme Court opinion provides a great amount of detail about the harm to Mr. Aguillera caused by the insurance carrier’s adjuster, which I will not outline here. For purposes of this blog, suffice it to say that the adjuster made arbitrary, mean-spirited, baseless, and egregious decisions about medical matters which put Mr. Aguillera’s life at risk.

As a result, the insurance company and the adjuster were sued for civil damages in an action separate and apart from Mr. Aguillera’s workers’ compensation case. They defended by arguing that they were immune from being sued civilly, pursuant to Section 440.11, Florida Statutes, that any complaints about how the workers’ compensation claim was being handled must be addressed through the workers’ compensation case itself.

Although the 3rd District Court of Appeal agreed with the civil defendants, the Florida Supreme Court did not.

The Florida Supreme Court was careful to point out that its decision was not authorizing civil actions in cases involving simple claim delay or simple termination of workers’ compensation benefits. The court recognized that the workers’ compensation system had appropriate remedies for these situations. In other words, the civil remedy established by the court is limited to egregious and outrageous claims handling.

The importance of the decision is that carriers and adjusters know there is a line beyond which they cross at their own risk. This has induced them to handle claims very carefully and with due regard for the health of injured workers.
Continue reading

by

In my 25 years of representing accident victims, I have found rotator cuff injuries to be about the most debilitating of all traumatic injuires for those employed as manual laborers. Unfortunately, it is a very common injury – for example, shoulder pain is second to back pain as the bases for workers’ compensation claims.

The rotator cuff is made up of 4 tendons, and they cover the top of the humerus. A rotator cuff injury involves a tear to one or more of these tendons. Tears can be full or partial thickness.

Tears can be acute, when a sudden force is applied to the shoulder, or chronic, which is deterioration over a long period of time. Common symptoms of acute tears include a tearing sensation, sudden pain, and sudden weakness. The symptoms of chronic tearing include gradual progression of shoulder pain and weakness, and difficulty sleeping on the affected side.

Rotator cuff tears are diagnosed clinically, by the orthopedist through examination, and by MRI. The best type of MRI to accurately diagnose the presence of a rotator cuff tear is the MRI arthrogram.

Treatment for rotator cuff injuries includes conservative care and surgery. Conservative care includes rest, non-steroidal anti-inflammatory medication (Motrin, Aleve, Celebrex) and physical therapy, and sometimes proves valuable with partial tears. Complete tears and partial tears that have not responded well to conservative care, usually will require surgery.
Continue reading

by

Proving compensability of heart attacks and strokes under Florida’s workers’ compensation system has always been difficult. Even when the law allowed the award of “reasonable” carrier-paid hourly attorney’s fees to the successful Claimant’s attorney, whether or not to accept a case required serious thoughtful consideration. Now that Florida’s new attorney’s fee statute, Section 440.34 (effective July 1, 2009), drastically reduces Claimants’ attorneys’ fees, the practical financial viability of these cases for Claimants’ attorneys is in serious question.

Heart Attack and Stroke cases are fact-intensive, require numerous medical opinions, and involve several complex legal issues. This translates into time consuming and costly cases for Claimants’ attorneys.

The primary issue in these cases is whether or not the medical event was occasioned by a preexisting condition. The outcome will determine the type of evidence that is required to prevail, which is often the difference between winning and losing. If a preexisting condition exists, the Claimant must show that the heart attack or stroke was caused by unusual physical strain not routine to the type of work the employee was accustomed to performing. If no evidence exists of a preexisting condition, the Claimant need only show that the event was caused by any amount of exertion. See Zundell v. Dade County School Bd., 636 So.2d 8 (Fla. 1994).

As everyone knows, heart attacks and strokes are frequently occasioned by preexisting conditions.
Continue reading

by

Compensation for pain and suffering is available in most types of accident cases. It is not available in Florida workers’ compensation cases.

Florida’s workers’ compensation system was instituted so that employees injured at work would not have to prove fault in order to receive benefits. Entitlement to compensation was to be as simple as proving that injuries resulted from an accident that occurred in the course and scope of one’s employment. In theory, at least, the system remains in place today.

In exchange for the creation of this no-fault system, injured employees lost the right to be compensated for pain and suffering. Injured workers’ are entitled to lost wages and medical benefits, but not compensation for pain and suffering.

Understandably so, this is a difficult concept for most lay people to comprehend. It is a concept that I must explain again and again to my workers’ compensation clients.

It is such a difficult issue, in fact, that I have devised an exercise to make the point. I begin by asking my clients, ‘how much money do you expect to receive in your workers’ compensation case for pain & suffering?’ Invariably, the answer is, “I don’t know.” I then ask them to close their eyes. Once this is done, I ask the question, “What do you see?” When the answer is “Nothing,” I tell them that nothing is exactly how much they will receive as compensation for pain and suffering in the workers’ compensation case. Point understood.
Continue reading

by

Frequently, employees hurt on the job can be compensated for their damages by third persons (i.e., someone other than the employer). This is so when the employee is injured or killed in the course of his or her employment by the negligence or wrongful act of a third-party tortfeasor.

Regardless of fault, Florida employees hurt while working are entitled to receive workers’ compensaiton benefits. Typically, those benefits, medical and indemnity (i.e., lost wages), are furnished by a workers’ compensation insurance company or a self-insured employer. When they are, Section 440.39(2) Florida Statutes gives the provider subrogation rights against the third party tortfeasor to the extent of the amount of compensation benefits paid. This is commonly referred to as a workers’ compensation lien.

Very rarely is the amount recovered through the lien equal to 100% of the benefits paid. The lien formula, outlined in 440.39(3)(a), is explained in Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990).

Here is the formula in a nutshell, along with an example: Third party settlement amount less (-) attorney fees and costs divided by (/) full case value = the % value of the wc lien.

Example:

  • WC lien (medical, indemnity, settlement, etc.): $ 100,000
  • $ 250,000 third party settlement less fees (40%) and costs = $ 135,000
  • Full case value: $ 1,000,000. (Settled for less due to tough liability, coverage limits, etc.)
  • $ 135,000 divided by $ 1,000,000 = 13.5%
  • 13.5% of $ 100,000 = $ 13,500.

Continue reading

by

Injured workers in Florida suffered a major setback in May 2009, when the Florida Legislature adopted a workers’ compensation bill which significantly limits the amount of fees their attorneys may recover from workers’ compensation insurance companies for forcing them to pay benefits through litigation. Not surprisingly, the Republican-controlled legislature failed to pass a similar measure limiting the amount of fees insurance companies may pay their own lawyers to defend against paying benefits to injured workers.

In a last minute about-face, the Florida Senate, led by Jeff Atwater (R), abandoned its own fair bill in favor of the House version sponsored by South Florida Representative, Anitere Flores (R). The surprise move came just one day after Senate President Atwater announced from the Senate podium that the Senate preferred its version of the workers’ compensation bill over the House’s version.

The legislature’s action was in response to a Florida Supreme Court decision handed down in October, 2008, in Emma Murray vs. Mariner Health and ACE USA, 994 So. 2d 1051 (Fla. 2008), a case which held, in essence, that fees paid to claimants’ attorneys must be reasonable. The 2009 Florida Legislature felt otherwise, choosing instead to craft legislation which removed the word “reasonable” from 440.34, the section of the Florida statute dealing with claimant’s attorney’s fees. As a result, employers and carriers ordered by workers’ compensation judges to furnish wrongly denied benefits no longer have to pay the claimant’s attorney reasonable fees for successfully securing the benefits.
Continue reading

by

February 27, 2011 blog on the issue: Survey of Florida’s Wrongful Termination Workers’ Compensation Law

Although the rights of injured workers under Florida’s Workers’ Compensation statutes have consistently been eroded away under Republican rule, one protection has remained constant over the years. Per Section 440.205 Florida Statutes (2009):

Coercion of employees.–No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

The protection afforded injured workers under Section 440.205 is broad, prohibiting not only the firing of an employee, but also threats, coercion, and intimidation. Chase v. Walgreen Co., 750 So.2d 93 (Fla. 5th DCA 1999). Moreover, a “valid claim” means one that is meritorious, not just compensable. Smailbein v. Volusia County Sch. Bd., 801 So.2d (Fla. 5th DCA 2001).
Continue reading

Contact Information
Main Office
9999 NE 2nd Ave, #304
Miami Shores, FL 33138
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com
Palm Beach Gardens
2401 PGA Blvd #140
Palm Beach Gardens, FL 33410
Phone: 305-758-4900
Fax: 305-758-4949
Email: jgale@jeffgalelaw.com

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2015 – 2025, Jeffrey P. Gale, P.A.
JUSTIA Law Firm Blog Design