Articles Posted in Workers’ Compensation

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This memo was written by me for an upcoming workers’ compensation trial. The key issue in the case is whether Florida’s “120-Day Rule” (F.S. 440.20(4)) will preclude the Employer/Carrier from denying the compensability of a number of claimant’s injuries and medical conditions. If the answer is Yes, the Claimant should be awarded Temporary Partial Disability Benefits (F.S. 440.15(4).

CLAIMANT’S TRIAL MEMORANDUM PURSUANT TO RULE 60Q-6.116(7)

      COMES NOW the Claimant, by and through his undersigned counsel, and files this, Claimant’s Trial Memorandum Pursuant to Rule 60Q-6.116(7):

POSTURE OF THE CASE

  1. Final Hearing is scheduled for November 30, 2020.
  2. The only claim to be heard at the Final Hearing is TPD from March 9, 2019 to April 21, 2020.
  3. E/C’s defenses are:

All TPD due or owing. The claimant has reached overall MMI, with a 0% PIR, and no restrictions, three months following the date of accident per the opinion of E/C IME Dr. Fernandez.

Based on the opinions of Dr. Fernandez and the February 5, 2019 MRI report, the claimant has suffered an intervening trauma that has broken the causal chain. Thus, the MCC of the need of any future medical treatment or loss of earning is not the July 19, 2016 industrial accident.

  1. Claimant replied to E/C’s defenses as follows (ID102):

Contrary to E/C’s unsubstantiated assertion, the claimant has not “reached overall MMI, with a 0% PIR, and no restrictions”; (2) E/C’s IME doctor limited his MMI, PIR, and restrictions opinions to a Grade I ankle sprain. He failed to express opinions on these subjects with regard to the claimant’s many other compensable injuries, as determined by Kenneth Hodor, M.D., claimant’s authorized orthopedist, and for which E/C has been providing benefits since on or about March 26, 2019. Accordingly, this is the only compensable injury for which there can possibly be a difference of opinion between E/C’s IME doctor and Dr. Hodor, thus limiting the scope of the EMA’s opinions regarding MMI, PIR, and restrictions to the Grade I ankle sprain only; (3) By virtue of the “120-Day Rule”, E/C has waived any right it may have had to contest that claimant’s injuries, as determined by Kenneth Hodor, M.D., including those revealed by the February 5, 2019 right ankle MRI, arose out of, and occurred within the course and scope of the claimant’s employment. Therefore, E/C should be estopped from defending the claim for TPD by challenging the compensability of claimant’s injuries.

Neither legally nor factually has the claimant “suffered an intervening trauma that has broken the causal chain.” In actuality, E/C’s “intervening trauma” defense is a preexisting condition defense, albeit one without a factual basis, under § 440.09(1)(b), Fla. Stat.; (2) By virtue of the “120-Day Rule”, E/C has waived any right it may have had, whether based on the theory of “intervening trauma” or of a preexisting condition, to contest that claimant’s injuries, as determined by Kenneth Hodor, M.D., claimant’s authorized orthopedist, arose out of, and occurred within the course and scope of the claimant’s employment. Therefore, E/C should be estopped from defending the claim for TPD by challenging the compensability of claimant’s injuries; (3) E/C has interjected an issue – “the MCC of the need of any future medical treatment” – which has not, heretofore, been at issue, and is not presently at issue. E/C has not denied any medical care, therefore, claimant has not had the need to file a claim for authorization of medical care. As no such claim is presently ripe for adjudication, the Pretrial Stipulation does not include any claim for same. Claimant does not consent to trying this issue at the upcoming Merit Hearing.

FACTS

  1. The Accident. Claimant stepped into a hole with his right foot. He twisted his right ankle, lost his balance and fell onto his side. E/C accepted compensability of the workplace accident.
  2. E/C authorized these medical providers as primary care physicians:

Port of Miami Medical Clinic/Irwin M. Potash, M.D.

Ortho Assoc. of South Broward/Dr. Steven Steinlauf

Kenneth R. Hodor, M.D., P.A./Kenneth R. Hodor, M.D.

  1. Dr. Potash last saw the Claimant on August 2, 2016. Dr. Steinlauf saw the Claimant once, on September 7, 2018. He noted that the Claimant had an antalgic gait on the right. He administered an injection in the right ankle and provided the Claimant with an AFO brace and an ankle support brace. Dr. Hodor was authorized and has seen the Claimant a total of seven (7) times, from January 29, 2019 to April 29, 2020. He remains authorized. From the first appointment to the last, Dr. Hodor has opined that the Claimant has functional restrictions and is not at MMI as a result of injuries sustained in the industrial accident.
  2. On the first examination, Dr. Hodor found an increase in girth on the right foot as compared with the left, a right antalgic gait, and tenderness in the right foot that was not present in the left. Right ankle x-rays performed that day revealed areas with degenerative changes. Dr. Hodor reported to the carrier that “the work related injury is the major contributing cause of the onset of the current symptoms in the right lower extremity.” His DWC-25 diagnosis is: “719.07 R Post tibial tendinitis.” He felt that a trial of anti-inflammatories was reasonable and necessary. Transdermal gel was provided. He also prescribed a course of therapy to the right ankle. He ordered an “MRI of the right ankle to rule out a partial tear of the posterior tibial tendon and/or any evidence of loose bodies.” Restrictions of minimize repetitive climbing stairs and ladder and squatting over the right ankle were imposed.
  3. E/C authorized the MRI, pharmaceuticals, and physical therapy. The MRI was performed on February 5, 2019. The findings were reported as follows:

Tear of the anterior talofibular and anterior tibiofibular ligaments.

Sprain of the posterior talofibular and posterior tibiofibular ligaments.

Sprain with partial tear of the calcaneofibular and deltoid ligaments.

Bone marrow edema pattern suggesting bone bruise of the medial malleolus and adjacent medial aspect of the talus.

Peroneus brevis and longus tendinosis.

Distal posterior tibialis tendinosis.

Instrasubstance longitudinal partial tear and focal plantar tear of central slip of the plantar fascia.

Tibiotalar joint effusion with posterior superior capsule ganglion.

Tibiotalar joint marginal osteophytes, subchondral remodeling and cartilage thinning.

  1. In Claimant’s first follow up appointment, on March 26, 2019, Dr. Hodor read the MRI report and images. He reported the MRI images as demonstrating “multiple abnormalities including the following: 1) tear of the anterior talofibular ligament with reactive edema; 2) a high signal was noted within the posterior talofibular ligament consistent with a sprain; 3) tear of the anterior tibiofibular ligament with reactive edema; 4) sprain of the posterior tibiofibular ligament; 5) sprain with partial tear of the calcaneofibular ligament; 6) sprain with partial tear of the deltoid ligament and again adjacent reactive edema and bone marrow edema in the adjacent medial malleolus and adjacent talus. There was noted to be an intact spring and bifurcate ligament.” He also interpreted the MRI images as showing: “a high signal and thickening of the peroneus brevis and longus tendons of the distal to the lateral malleolus consistent with tendinosis. There was a prominent peroneal tubercle and a high signal evident with the distal insertional posterior tibial tendon at and proximal to its insertion at the navicular/medial cuneiform, again reflecting tendinosis.” Dr. Hodor reported that Clamant continued to demonstrate an antalgic gait on the right and “fullness or swelling about the right ankle compared with the left.” The same restrictions as before were maintained. His handwritten DWC-25 diagnoses is “Varus Arthritis R ankle; tears of multiple ligaments ATFL PTFL; tearing anterior tibio-fibular, sprain of posterior tip-fib lig, partial tear unable to decipher lig.”He prescribed physical therapy for Claimant’s “R Ankle/Foot” and pharmaceuticals. He indicated that the injuries were the major contributing cause for the treatment recommendations and functional limitations and restrictions. E/C authorized the prescriptions.[2]
  2. Hodor next saw the Claimant on May 7, 2019. In his typed report of this date, he informs E/C that Claimant “does have varus ankle arthritis which certainly preceded his injury but has been aggravated by it. He is going to continue with physical therapy and I will see him again in 6-8 weeks. There has been no change in his work status.” His DWC-25 diagnosis is: “719.07 R Post tibial tendinitis.” PT and pharmaceuticals are prescribed. Dr. Hodor advises E/C that the “Injury/Illness for which treatment is sought is work related. E/C authorized everything.
  3. In the June 18, 2019 appointment, Dr. Hodor advises the Claimant to avoid “any impact type activities” and to use his ASO brace. He again informs E/C that the reason for the medical treatment is work related. His DWC-25 diagnosis is: “R 719.07 Posterior tibial tendinitis R.”
  4. In the next appointment, on August 20, 2019, Dr. Hodor elicited tenderness and detected soft tissue fullness. He decided to write a prescription for a Vector ankle/foot orthotic brace “to see whether that may give him some additional support.” The handwritten DWC-25 diagnosis, which I am unable to decipher in full, includes at least two ligament tears. E/C authorized the brace. Claimant’s work restrictions remain the same and he is still not at MMI.
  5. On February 19, 2020, now more than one year after his first appointment with Dr. Hodor, Claimant’s examination continued to “reveal evidence of fullness posteromedially,” tenderness, and “restricted hindfoot mobility.” Dr. Hodor reminds E/C of his previous diagnosis of “tenosynovitis of the posterior tibial tendon on the right superimposed on his varus osteoarthritis of the right ankle,” and notes the ligament tearing demonstrated in the February 5, 2019 MRI. His DWC-25 diagnosis is: “R Ankle Synovitis; R Ankle Varus Ankle arthritis.” Claimant’s medications are renewed. Dr. Hodor indicates that the need for the medical treatment is work related. Claimant’s work restrictions remain the same and he is still not at MMI.
  6. Dr. Hodor last examined the Claimant on April 29, 2020. X-rays were performed. In his typed report to E/C, Dr. Hodor writes: “As noted, his prior MRI showed multiple ligament injuries.” Ongoing therapy is prescribed to his ankle and it is recommended that Claimant be fitted for a “custom device for his shoe once we have to order this and get him fitted when the pandemic allows.”
  7. Dr. Hodor was deposed on April 20, 2020. This is the first time anyone acting on E/C’s behalf asked Dr. Hodor questions about the case. In Dr. Hodor’s opinion, the February 5, 2019 MRI demonstrates that the ligaments supporting both sides of the right ankle, the medial or inner side of the ankle and the lateral or outer side of the ankle, were torn and stretched in the accident, resulting in “a disbalance of muscular tendinous forces in the ankle.” He described this as “an acute injury superimposed on pre-existing degenerative changes.” In his words, “[T]here [are] a lot of interacting pathologies going on in … this patient,” including “a muscle and bone imbalance situation” and reactive edema. He went on to say that the “torn ligaments aren’t going to resolve, they’re scarred out.” Dr. Hodor also opined that the accident has caused the underlying Varus Arthritis to progress more rapidly. Finally, Dr. Hodor explained that if conservative care, consisting of physical therapy, anti-inflammatories, and a custom orthotic fail to achieve satisfactory results, surgery in the form of “an arthrodesis of the foot and ankle or a triple arthrodesis, which is a big operation,” might be indicated. On a cross examination question from E/C’s attorney, Dr. Hodor answered that if surgery has to be performed, “It’ll be greater than 51% related to the injuries he sustained.” As of the date of the deposition, the Claimant was not at MMI and he continued to have functional restrictions.

DISCUSSION

  1. E/C owns all of the injuries and conditions diagnosed and treated by Dr. Hodor. E/C’s intervening trauma defense does not relieve it of this obligation. In North River Ins. Co. v Wuelling, 683 So. 2d 1090 (Fla. 1st DCA 1996) (en banc), the Court held that an E/C which pays compensation or intentionally provides benefits, but fails to deny compensability within the 120 days provision set forth in section 440.20(4), Florida Statutes, waives the right to contest that an injury “arose out of, and occurred within the course and scope of the claimant’s employment.” North River at 1092; see also s. 440.192(8), Fla. Stat. (2011) (“A carrier that does not deny compensability in accordance with s. 20(4) is deemed to have accepted the employee’s injuries as compensable, unless it can establish material facts relevant to the issue of compensability that could not have been discovered …”) E/C waited until August 19, 2020, to first deny the compensability of Dr. Hodor’s care.
  2. E/C wants the Court to believe that the only compensable injury which it is obligated to cover is an ankle sprain. This is the only injury Dr. Fernandez (E/C’s IME), Dr. Steinlauf, and Dr. Brill (EMA) attribute to the accident. In contrast, Dr. Hodor believes that the accident is the MCC of a much broader and more serious range of injuries and conditions as described above. Since Dr. Hodor has been authorized since January 29, 2019 without challenge, it is estopped by operation of law from now contesting the compensability of the injuries he diagnosed and treated. See North River at 1092; see also s. 440.192(8), Fla. Stat. (2011) (“A carrier that does not deny compensability in accordance with s.440.20(4) is deemed to have accepted the employee’s injuries as compensable….”)
  3. E/C claims that a sprained ankle is the only injury for which it authorized treatment before Dr. Hodor became Claimant’s primary care physician. Accordingly, it contends that this is the only injury for which it can ever be responsible. This position fails to recognize how the “120-Day Rule” works. Teco Energy, Inc. v. Williams, 234 So. 3d 816 (Fla. 1st DCA 2017) shows what E/C is missing:

The “120-Day Rule” is not necessarily rendered obsolete on the 121st day after the first report of accident and initial installment of benefits. The rule remains viable and is again triggered when, and if, a new condition or injury arises. Snyder, 765 So.2d at 754; Boyle v. JA Cummings, Inc., 212 So.3d 1060, 1062-63 (Fla. 1st DCA 2017) (holding JCC erred by excluding adjuster’s testimony concerning specific identity of condition accepted as compensable as it related to application of subsection 440.20(4) to preexisting condition); McIntosh v. CVS Pharmacy, 135 So.3d at 1157, 1159 (Fla. 1st DCA 2014) (“It was of no consequence that compensability [of the claimant’s PTSD] was sought long after the date of the accident; the relevant inquiry is whether the E/C denied compensability within 120 days of first providing treatment for the PTSD.”).

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doctorAlmost every trial level decision made by a Florida judge of workers’ compensation claims (JCC) relies, at least in part, on the opinion of a physician. If there is a disagreement in the opinions of the health care providers, section 440.13(9)(c), Florida Statutes allows the JCC to appoint what the statute calls an expert medical advisor (EMA) to break the tie. Because the statute provides that “[t]he opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary,” the EMA doctor has come to be known as a “Super Doc.”

More times than not, the presumption favoring the opinion of the Super Doc cannot be overcome. This can even be the case, for example, where the Super Doc has only reviewed medical records or examined the patient once, while the authorized doctor, who may hold a different opinion, has been treating the claimant for years. The constitutionality of the provision has been challenged. Unfortunately — in my opinion — it has survived constitutional muster. See Abreu v. Riverland Elementary School (1st DCA 2019).

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calendar-1192688-300x230Few parts of Chapter 440 of the Florida Statutes demand as much attention from the workers’ compensation insurance carrier as section 440.20(4), Florida Statutes. It provides:

If the carrier is uncertain of its obligation to provide all benefits or compensation, the carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits as required under subsection (2) or s. 440.192(8). Additionally, the carrier shall initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable, without prejudice and without admitting liability. Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation as required under subsection (2) or s. 440.192(8) waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period. The initial provision of compensation or benefits, for purposes of this subsection, means the first installment of compensation or benefits to be paid by the carrier under subsection (2) or pursuant to a petition for benefits under s. 440.192(8).

It is not always easy to determine which injuries are work related. This is why section 440.20(4) gives E/C 120 days to investigate and decide. Doctors can be questioned, medical records can be reviewed, witnesses and the injured worker can be deposed.

Absent a showing  that material facts relevant to the issue of compensability could not have been discovered through reasonable investigation within the 120-day period, an E/C who intentionally provides benefits, but fails to deny compensability within 120 days waives its right to contest an injury “arose out of, and occurred within the course and scope of, the claimant’s employment. North River Ins. Co. v. Wuelling, 683 So. 2d 1090, 1092 (Fla. 1st DCA 1996) (en banc). 

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maze2-300x225Florida statute 440.11 precludes workers injured on the job from recovering damages from the employer at law or in admiralty on account of such injury or death. Damages at law or in admiralty include non-economic damages such as pain and suffering. It is a common law remedy.

Damages for pain and suffering are not available under Florida’s workers’ compensation system. Basically, workers’ compensation benefits are limited to medical and indemnity. Statute 440.10 extends the 440.11 immunity to contractors and subcontractors on the same project who are not the injured worker’s actual employer. They are considered statutory employers.

It is every personal injury lawyer’s job to maximize his or her client’s recovery. In most workplace accidents, the injured worker is limited to workers’ compensation benefits, leaving the personal injury lawyer without a role. (Our law firm handles both personal injury and workers’ compensation cases.) This is not only because of 440.10 and 440.11. In some instances, for example, there is nobody to blame for the accident other than the employee.

Are there exceptions to 440.10 and 440.11? Yes. To succeed against the actual employer, the employee must demonstrate that the employer’s conduct rose to the level of intentional conduct substantially certain to result in injury. To make good on a case against a 440.10 entity, the employee must demonstrate the following:

1) circumstances constituting an imminent or clear and present danger amounting to a more than normal or usual peril, 2) knowledge or awareness of the imminent danger on the part of the tortfeasor, and 3) an act or omission that evinces a conscious disregard of the consequences. Kline v. Rubio, 652 So. 2d 964, 965-66 (Fla. 3d DCA 1995).

Under certain circumstances, an employee may pursue these common law remedies after receiving workers’ compensation benefits. Vellejos v. Lan Cargo SA allowed the Claimant to pursue a civil remedy under the statutory exceptions after executing a broad release in his workers’ compensation settlement.

A person injured while working has the right to elect between two different remedies — workers’ compensation and common law — for compensation. “However … the point upon which a worker’s action with regard to a compensation claim constitutes an election of the workers’ compensation remedy to the exclusion of a civil action is not entirely clear.” Jones v. Martin Electronics, Inc., 932 So. 2d 1100, 1105 (Fla. 2006). Florida courts have clearly stated that the “[m]ere acceptance of some compensation benefits . . . is not enough to constitute an election” of remedies. Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984) (quoting Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 254 (Alaska 1976)); see also Wheeled Coach Indus., Inc. v. Annulis, 852 So.2d 430, 432 (Fla. 5th DCA 2003); Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000); Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA 1995); Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991).

There are also the cases where, because the compensability of the claim or the status of the employee at the time of the injury was contested, an election was not made: Vasquez v. Sorrells Grove Care, Inc., 962 So. 2d 411, 415 (Fla. 2d DCA 2007) (noting that the carrier contested the compensability of the claim and whether Vasquez was an employee); Hernandez v. United Contractors Corp., 766 So. 2d 1249, 1252 (Fla. 3d DCA 2000) (holding that because the carrier contested the compensability of the claim and took the position that there was no evidence that the accident arose out of and in the course and scope of Hernadez’s employment, there was no conclusion on the merits); Lowry v. Logan, 650 So. 2d 653, 658 (Fla. 1st DCA 1995) (“there remain disputed issues of fact concerning whether Lowry is an [sic] covered employee or an independent contractor and whether he was injured in the course and scope of his employment”); Wright v. Douglas N. Higgins, Inc., 617 So. 2d 460, 461-62 (Fla. 3d DCA 1993) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case); Wishart v. Laidlaw Tree Serv., Inc., 573 So. 2d 183, 184 (Fla. 2d DCA 1991) (“The critical issue of fact which must be determined by the trial judge is whether the employee was injured in the course and scope of his employment.”); Velez v. Oxford Dev. Co., 457 So. 2d 1388, 1391 (Fla. 3d DCA 1984) (reversing summary judgment because there was no determination that plaintiff was an employee in the workers’ compensation case).

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IMG_2410-207x300Florida lawyers handling accident cases are obligated to make every effort to search out all potential revenue sources to justly compensate their clients. Typically, people harmed in the workplace are entitled to workers’ compensation benefits, which are furnished by employers and their workers’ compensation insurance carriers (“E/C”). Because of the legal concept of workers’ compensation immunity, which is set forth in section 440.11, Florida Statutes, in most instances workers’ compensation is the only form of compensation a worker injured on the job will receive. While workers’ compensation serves a valuable purpose, it also has limitations. The most prominent of those limitations is that compensation is never paid for non-economic damages such as pain and suffering.

In some cases, the workplace injury is caused by a person or entity unrelated to the employer, commonly referred to as a “third party.” This may give the injured worker the opportunity to recover both workers’ compensation benefits from the E/C and civil law damages from the at-fault party. For example, an elevator repairman injured in a rear-end car crash while driving from one job site to another, is free to pursue civil damages against the driver, the owner of the vehicle, and the driver’s employer as the case may be. This is because none of these third party entities has workers’ compensation immunity.

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Doctor-Patient-300x164From the perspective of injured workers, I am a frequent critic of Florida’s Workers’ Compensation System. Of the many inequities built into the System, I reserve my greatest disdain for its rules on the provision of medical care. Essentially, employers and their workers’ compensation insurance carriers get to pick all of the treating doctors. Because most of these doctors derive a large percentage of their income from workers’ compensation cases, they naturally tend to render opinions favorable to the employers/carriers (E/C). If they don’t, they will stop getting workers’ compensation cases from the E/C.

The System gives injured workers very little leeway to overcome this built-in bias. Section 440.13(2)(f), Florida Statutes (2019) gives workers an inkling of an opening. The section provides as follows:

Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary. (Bold added for purposes of this blog.)

At best, it is a tiny opportunity. Because Employers/Carriers keep lists of favored doctors, once a “one change” request is made it is easy for them to pick another friendly doctor from a list to assure that the opinions rendered by doctor “B” are just as beneficial to their interests as the opinions given by doctor “A.” On rare occasions, the E/C will fail to authorize a physician within the 5 day period outlined in the statute. When this happens, the injured worker (Claimant) can choose his or her own doctor. However, it is not always easy for Claimants to find doctors willing to provide care without a guarantee of being paid. Even though the statute says that “such physician shall be considered authorized,” not every doctor is willing to undertake care based just on assurances from the Claimant’s attorney. They want pre-authorization from the workers’ compensation E/C. Unfortunately, most employers/carriers will not concede their statutory obligation without a fight. Claimants must sometimes waits months for the authorization to come through. Given the seriousness of certain medical conditions, this is not always feasible. Thankfully, our law firm has developed relationships with many fine medical providers who are willing undertake care on our assurances alone knowing we will fight to get them paid.

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bde0c19a2385ead051db50be406f36911-300x241It is fairly certain that until an effective vaccine is created to control Covid-19 (a.k.a.
“Coronavirus”), the virus will continue to spread from human-to-human contact. With the reopening of businesses, the threat of being infected in the workplace is real. If an employee can prove that his coronavirus infection came from the workplace, he would be entitled to workers’ compensation benefits (including medical and indemnity). The trick is in  proving the case.

There are two possible approaches. One approach is to view the infection as an occupational disease and pursue relief under s. 440.151, Florida Statutes. To succeed under this section of Chapter 440, the employee must establish the following elements:

  1. The virus has resulted from the nature of the employment in which the employee was engaged under such employer. Section 440.151(1) explains “nature of employment” this way: “in the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations”.
  2. The virus was actually contracted while so engaged.
  3. The nature of the employment was the major contributing cause of the disease.

Because the virus knows no boundaries, establishing that it was contracted in the workplace and resulted from the nature of the employment is going to be exceedingly difficult in most cases. While there may be some types of employment, say, medical staff in hospitals, where the elements will be easier to satisfy, the burden of proof in most cases may be too great to overcome. Making matters worse is that in cases involving occupational disease, both causation and sufficient exposure to support causation must be proven by clear and convincing evidence. s. 440.09(1). This is a higher standard of proof than for many other types of workplace injuries. The lower standard is, “to a reasonable degree of medical of medical certainty.” Section 440.09(1), Florida Statutes.

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clock-300x200Our firm recently received a phone call from a highly distraught gentleman claiming that his Florida workers’ compensation case was closed as a result of running afoul of the system’s statute of limitations. After a lengthy question and answer session, I concluded that his only possible avenue of recourse was a malpractice case against his workers’ compensation lawyer. This is not the answer he wanted to hear.

Florida’s workers’ compensation statute of limitations is codified in Florida Statute 440.19. Subsection (1) describes the SOL as being “within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.” Subsection (2) sets forth a mechanism for extending this period, worded as follows:

Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment.

The gentleman with whom I spoke had a serious accident in 2008 when falling through a glass window. He has undergone four surgeries and has a fifth scheduled to remove glass from his leg. (The fifth surgery is scheduled with a Medicare doctor.) He was recently told by his workers’ compensation lawyer that his workers’ compensation case is closed because none of the subsection (2) factors set forth above were met.

It became apparent from our discussion that the lawyer was correct. However, it also became apparent that the fault for this, at least in part, might lie with the lawyer. While insurance carriers can sometimes account for the inadvertent failure of a claimant to take actions necessary to keep within the SOL, which would give the claimant another chance, I saw none of that in this case. (See these blogs for examples of carrier responsibility: Jeffrey P. Gale, P.A. // Neglecting Duty Prevents Application of Workers’ Compensation Statute of Limitations; Jeffrey P. Gale, P.A. // Navigating Florida’s Tricky Workers’ Compensation Statute of Limitations (SOL); Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Law — Estoppel as a Response to Trickery and Neglect.)

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dollars-254x300Workers injured in motor vehicle crashes while in the course and scope of employment may be eligible for compensation through uninsured/under-insured (UM/UIM) motor vehicle insurance. UM covers losses sustained by the insured, passengers, and family members through the fault of a party who fails to maintain Bodily Injury (BI) insurance. Hit-and-run and “phantom vehicle” scenarios also fall under UM coverage. UIM covers losses that exceed the limits of coverage available under the at-fault party’s BI insurance. Those same injured workers could also be eligible for workers’ compensation benefits for the same accident.

Section 440.39(3)(a), Florida Statutes (2019) states that in actions by the employee against a tortfeasor, the employee or his representative “shall sue for the employee individually and for the use and benefit of the employer, if a self insurer, or employer’s insurance carrier, in the event compensation benefits are claimed or paid….” Id. This means that the workers’ compensation insurance carrier has a lien against any judgment or settlement ultimately recovered by the employee. Id. 

UM/UIM benefits are not subject to the workers’ compensation lien. See Volk v. Gallopo, 585 So.2d 1163 (Fla. 4th DCA 1991).

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accident-1307665-162x300Most workers’ compensation and personal injury lawyers have had the occasion to deal with workers’ compensation liens. The lien, which is established by section 440.39, Florida Statutes, becomes an issue when the injured employee who has received workers’ compensation benefits also receives compensation from a third party tortfeasor in connection with the same accident. (While employers have workers’ compensation immunity providing protection against civil liability, many work-related accidents are caused by parties that don’t have the immunity.) The instructions for handling the lien are set forth in 440.39(3)(a) and Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990). (Read this blog for further explanation: Florida Workers’ Compensation Liens — 440.39, the Manfredo Formula, etc.)

Few lawyers realize that workers’ compensation employers and carriers (E/C) may bring a lawsuit against the third party tortfeasor in the claimant’s name in an effort to recoup their expenditures. This is authorized by 440.39(4)(a). The right is limited to a one year period, from the period beginning one year after the cause of action has accrued to two years following accrual of the action, and may only be brought if the workers’ compensation claimant fails to bring the suit within one year of the cause of action. If E/C fails to bring suit during this one year time period, it loses the right to do so. 440.39(4)(b).

Regardless of who brings the lawsuit, the rights of both the E/C and the claimant must be taken into account. E/C cannot disregard the claimant’s right to a say in the third party damages and the claimant cannot ignore E/C’s 440.39 lien right.

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