Articles Posted in Workers’ Compensation

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.
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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.

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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.
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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):

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).
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