Articles Posted in Workers’ Compensation

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maze1-300x225Settling an injury case is not as easy as it once was. In the old days, cases would be settled with little or no consideration being given to satisfying liens and protecting an injured person’s right to receive post-settlement Medicare and Medicaid benefits. Rather than attorney neglect, much of this was due to weak and sometimes non-existent lien rights and undeveloped requirements for protecting the interests of Medicare and Medicaid. Times have changed. This blog will touch on the interplay between Medicare Set-Asides (MSA) and Medicaid’s means-tested Supplemental Security Income (SSI) benefits.

According to the Centers for Medicare & Medicaid Services (CMS), a “Medicare Set-Aside Arrangement (WCMSA) is a financial agreement that allocates a portion of a … settlement to pay for future medical services related to the … injury, illness, or disease.  These funds must be depleted before Medicare will pay for treatment related to the … injury, illness, or disease.” While MSAs have been part of the workers’ compensation landscape for many years, it is unclear, despite years of discussion, whether they are required in personal injury cases. In cases involving serious injuries where the plaintiff will most definitely require future medical care, caution dictates considering, at least, the creation of an MSA.

Supplemental Security Income (SSI) “is a Federal income supplement program funded by general tax revenues (not Social Security taxes):

  • It is designed to help aged, blind, and disabled people, who have little or no income; and
  • It provides cash to meet basic needs for food, clothing, and shelter.”

The more countable income you have, the less the SSI payment will be. Moreover, if your countable income is over the allowable limit, you cannot receive SSI benefits at all.

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ship4-300x227The Longshore and Harbor Workers’ Compensation Act (LHWCA) and Florida’s Workers’ Compensation Act are statutory systems established to handle the provision of benefits to injured workers. The LHWC covers persons engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. The injuries must occur on the navigable waters of the United States or in the adjoining areas, including piers, docks, terminals, wharves, and those areas used in loading and unloading vessels. Importantly, Congress extended the LHWCA to include other types of employment. Employees covered by these extensions are entitled to the same benefits, and their claims are handled in the same way as Longshore Act claims. The following are the extensions of the LHWCA: Defense Base Act (DBA); Outer Continental Shelf Lands Act (OCSLA); and Non-Appropriated Fund Instrumentalities Act (NAFIA).

The LHWCA specifically excludes seamen (masters or members of a crew of any vessel, typically, employees working aboard ships, tugs, fishing boats, barges, and dredges, who would be covered by the Jones Act), and employees of the United States government or of any state or foreign government. ;

Most of the rest of Florida employees will fall under Florida’s workers’ compensation system.

While the LHWCA and Florida’s system share many of the same concepts, some of the differences between them, especially as to the quality and quantity of available benefits, are significant. For the most part, the LHWCA is more generous to injured workers. This blog will set out some of the more important differences.

Jurisdiction. The LHWC is a federal law. Jurisdiction lies with the U. S. Department of Labor Office of Workers’ Compensation Programs Division of Longshore and Harbor Workers’ Compensation. Florida workers’ compensation cases are governed by state law. Jurisdiction lies with the State of Florida Division of Administrative Hearings.

Dispute Resolution. While very different from one another, both systems function relatively well. Florida’s system is somewhat more detailed and precise. Hearings and mediations must be completed within specific time periods and its electronic filing system/database is state of the art. The federal system is more ambiguous.

Compensability. Compensability concerns whether a claim is covered or denied. While both systems are what is known as “no-fault,” meaning injured employees are not required to establish fault to be compensated, each has defenses available to employers and their insurance carriers to deny claims. Florida workers’ compensation, in particular, has two potent and popular defenses:

“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.”

The language can prove problematic for injuries superimposed on preexisting conditions such as degeneration and prior injuries. However, it is not uncommon for a work-related accident to aggravate a preexisting condition. Even if the accident-related injury does not total more than 50% of the overall medical condition, the employer/carrier (E/C) are responsible for treating the aggravation until it becomes less than the 50% of the reason for why treatment is necessary. For example, a person with a preexisting back condition that has required fusion surgery, but is otherwise doing well, may suffer an aggravation of the condition from a work related incident. If the aggravation results in the need of medical care, the E/C is responsible for the care. However, once the aggravation subsides, typically when the treating workers’ compensation doctor decides that the aggravation has reached the point known as maximum medical improvement (MMI) — 440.02(1) — compensation for further medical care and lost wages will end.

The main downside of the MCC defense comes when a work-related injury falls below the 50% level for aggravation or permanency. In this circumstance, the E/C is not responsible for any related medical or wage loss benefits. The LHWCA does not have a similar all-or-nothing standard. Benefits can be payable regardless of whether or not the work-related injury is the MCC.

440.09(3): “Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician….”

903(c): “No compensation shall be payable if the injury was occasioned solely by the intoxication of the employee….”

Off the bat, the highlighted language shows a dramatic difference between the two standards. It is much easier for employers to establish “occasioned primarily” than “occasioned solely.” Making matters significantly worse is the following language from section 440.09(7)(b), which creates a presumption in favor of the employer that, in most cases, is exceedingly difficult to overcome:

“If the employee has, at the time of the injury, a blood alcohol level equal to or greater than the level specified in s. 316.193, or if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee.”

The LHWCA has no such presumption. To the contrary, the LHWCA provides that “a claim for compensation . . . shall be presumed, in the absence of substantial evidence to the contrary . . . [t]hat the injury was not occasioned solely by the intoxication of the injured employee.” 33 U.S.C. § 920(c). “[T]he employer may rebut the presumption . . . by presenting substantial evidence that is specific and comprehensive enough to sever the potential connection between the disability and the work environment.” Hawaii Stevedores, Inc. v. Ogawa, 608 F.3d 642, 651 (9th Cir. 2010). This is a difficult burden for the employer to meet.

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Bicycle-300x200We represent a hardworking young college student who was struck by a hit-and-run vehicle and left for dead by the side of the road while delivering for Uber Eats on his bicycle. He spent a week in Ryder Trauma Center, a leading catastrophic care facility, with life threatening injuries ranging from traumatic brain injury (TBI) to bone fractures.

Florida Statute 627.748 imposes obligations on Transportation Network Companies (TNC) to maintain primary automobile insurance coverage while an authorized driver is engaged in service operations. The types of required coverage are death and bodily injury (BI), property damage (comprehensive and collision), uninsured/underinsured motorist (UM/UIM), and personal injury protection (PIP), with varying policy limits depending on whether the participating TNC driver is engaged in a prearranged ride or logged on to the digital network but not engaged in a prearranged ride.

Unfortunately, the statute leaves a gaping hole for victims like our young college student. By its terms, the statute is limited to situations where the TNC driver is engaged in a prearranged ride (with or for a “rider”) or is logged on to the network while operating a motor vehicle. Since a bicycle is not a motor vehicle and food is not a “rider” — defined in 627.748 as “an individual who uses a digital network … to obtain a prearranged ride in the TNC driver’s vehicle….” — our young client may never be compensated for his damages (injuries, medical expenses, lost wages).

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scales-of-justice-300x203Many experts believe that the  First District Court of Appeal’s April 5, 2019 ruling in Sedgwick CMS v. Tamatha Valcourt-Williams will open the floodgates for more civil negligence lawsuits brought by employees against employers.

Because of the immunity provisions of section 440.11, Florida Statutes, such lawsuits have always been exceedingly rare in Florida. Under the current version of the statute, the exceptions to this exclusiveness of liability are:

  1. When an employer fails to secure workers’ compensation coverage; or
  2. When an employer commits an intentional tort that causes the injury or death of the employee

A third exception arises when an employer/carrier defends a workers’ compensation claim on the basis that “the injury did not occur in the course and scope of employment, or that there was no employment relationship.” An employer taking this position is estopped from asserting the 440.11 workers’ compensation immunity defense in a civil negligence suit brought against the employer. See, Byerely v. Citrus Publishing, Inc., 725 So.2d 1230 (Fla. 5th DCA 1999).

The Sedgwick case appears to have expanded the scope of injuries workers’ compensation employers/carriers can deny as not having occurred in the course and scope of employment. The flip side of this will be an increase in opportunities for personal injury lawyers to pursue civil negligence claims resulting from workplace accidents. It remains to be seen if these projections will hold up over time, but workers’ compensation insurance companies and personal injury lawyers are not expected to waste any time testing the waters.

As workers’ compensation claimants’ attorneys are bracing for an onslaught of denied claims, personal injury lawyers are licking their chops at the prospect of seeing an expanded number of personal injury cases come their way. While a denied claim may still be prosecuted under workers’ compensation, some of those denials will naturally end up as circuit court negligence cases. In those cases, claims of workers’ compensation immunity will be met with Byerley and Sedgwick arguments. Moreover, Sedgwick expands the opportunities to jump right into the personal injury arena rather than wait for the claim to be denied under workers’ compensation. While not waiting has always been an option, Sedgwick makes it easier for the plaintiff to argue successfully that the injury did not occur in the course and scope of the employment.

In Sedgwick, a workers’ compensation adjuster authorized to work from home injured herself during a coffee break when she tripped over her dog. She filed for workers’ compensation benefits and won at the trial level. The employer appealed and was successful in having the trial level decision reversed. The DCA decided that the adjuster was not injured in the course and scope of her employment. It framed the question of compensability as “whether the employment—wherever it is—’“necessarily exposes a claimant to conditions which substantially contribute to the risk of injury,”’ a concept it calls “occupational causation,” Sentry Ins. Co. v. Hamlin, 69 So.3d 1065, 1068 (Fla. 1st DCA 2011) (citing Acker v. Charles R. Burklew Constr., 654 So.2d 1211 (Fla. 1st DCA 1995)), or a risk not existent in the claimant’s “non-employment life.” Medeiros v. Residential Cmtys. of Am., 481 So. 2d 92, 93 (Fla. 1st DCA 1986); accord Glasser v. Youth Shop, 54 So. 2d 686, 687-88 (Fla. 1951) (“Since industry must carry the burden, there must then be some causal connection between the employment and the injury, or it must have had its origin in some risk incident to or connected with the employment, or have followed from it as a natural consequence.”).

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crushed-vehicle-300x207With few exceptions, section 440.11, Florida Statutes grants immunity from tort liability to employers and the co-employees of Florida workers injured in the course and scope of their employment. In most cases, the doctrine precludes relief outside of the workers’ compensation system.

Florida’s dangerous instrumentality doctrine is a common law doctrine which provides that the owner of an inherently dangerous tool is liable for any injuries caused by that tool’s operation. The Florida Supreme Court in Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 469 (Fla. 1920), extended the doctrine to motor vehicles, holding that owners may be held accountable for any damages suffered by third parties as the result of the negligent operation of their vehicles, when they are driven by others with their knowledge and consent. This doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another. (Other examples of dangerous instruments include: Newton v. Caterpillar Financial Services (multi-terrain loader); (Rippy v. Shepard) (farm tractor); (Harding v. Allen-Laux, Inc.) (forklift); (Halifax Paving, Inc. v. Scott & Jobalia Const. Co.) (crane); Meister v. Fisher, 462 So.2d 1071 (Fla. 1984) (golf cart); Sherrill v. Corbett Cranes Services, 656 So.2d 181 (Fla. 5th DCA 1995) (crane); Lewis v. Sims Crane Service Inc., 498 So.2d 573 (Fla. 3d DCA 1986) (construction hoist); Eagle Stevedores, Inc. v. Thomas, 145 So.2d 551 (Fla. 3d DCA 1962) (tow-motor).

It is not uncommon for employers to use such dangerous instrumentalities in the workplace that are owned by others. This raises the question of whether the owner of a dangerous instrumentality shares the same immunity as employers and co-employees. In Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla. 1966), workers’ compensation immunity was extended to Ryder, the owner of two motorcycles involved in a crash that were leased to the employer. The Florida Supreme Court declared that the motorcycles in effect had become working tools of the employer, much like a fellow employee. Smith was subsequently relied on by the Supreme Court in Halifax Paving, Inc. v. Scott & Jobalia Const. Co., 565 So. 2d 1346 (Fla., 1990), to extend immunity to the owner of a crane who merely loaned the equipment to the employer as a matter of courtesy.

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scales-of-justice-300x203Here’s a simple truth: An injured worker (also known as a “claimant”) proceeding “without the aid of competent counsel” is as “helpless as a turtle on its back,” Davis v. Keeto, Inc., 463 So.2d 368, 371 (Fla. 1st DCA 1985) (quoting Neylon v. Ford Motor Co., 27 N.J.Super. 511, 99 A.2d 664, 665 (Ct.App.Div.1953)). Because of this, one of the most important rights presently available to claimants under Florida’s workers’ compensation system, is the ability to hire a lawyer on a contingency fee basis who is able to exact a reasonable attorney’s fee from the workers’ compensation insurance company (collectively, the “E/C”) for making it furnish benefits in accordance with the law. This attorney’s fee provision, contained in section 440.34, Florida Statutes, makes claimants’ attorneys willing and able to invest their time and money to do battle against the unlimited resources of Big Business and the Insurance Industry. Because the fee awarded against the E/C can be substantial, sensible E/C undertake a careful analysis of the pros and cons of denying benefits. This promotes fair and reasonable claims handling.

From 2009 to 2016, E/C operated under a diametrically different system. The 2009 Florida Legislature enacted legislation prohibiting Judges of Workers’ Compensation Claims (“JCC) from awarding “reasonable” attorney’s fees to claimants’ lawyers who successfully forced the E/C to furnish wrongly denied benefits. To accomplish this end, the  legislature literally removed the word “reasonable” from the then existing statute. This encouraged indifference and hostility towards the rights of injured workers, with little regard given by E/C to the quick and efficient delivery of workers’ compensation benefits such as medical treatment and lost wages. If an injured worker was somehow able to enlist the services of a lawyer willing to undertake a protracted court battle, and the lawyer managed to win the case, the JCC could only order E/C to furnish the wrongly denied benefits and, because of limits imposed by law, award no more than a nominal fee to the claimant’s attorney, the equivalent of a slap on the wrist.

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Laboratory-202x300Employers and their workers’ compensation insurance companies (E/C) relish the opportunity to deny benefits to employees injured on the job. One of the most powerful weapons in their ample arsenal is the section 440.09(3), Florida Statutes drug defense. It reads as follows:

(3) Compensation is not payable if the injury was occasioned primarily by … the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician….

Urine is the specimen of choice for drug testing. It is collected from the donor at a collection site or directly from the injured worker’s urine bag when urinating into a cup cannot be accomplished.

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Laboratory-202x300A popular defense utilized by Florida employers and their workers’ compensation insurance carriers (E/C) to keep from having to pay workers’ compensation benefits is the drug defense under section 440.09(3), Florida Statutes. In pertinent part, the section provides as follows:

(3) Compensation is not payable if the injury was occasioned primarily by … the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician….

It is routine for specimens to be drawn — typically urine — shortly after an accident, often before medical treatment is provided for the injury. Specimen collectors will even go to hospitals in cases where emergency medical care is required.

A companion to 440.09(3) is 440.09(7)(b), which provides:

… if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the … influence of the drug upon, the employee. If the employer has implemented a drug-free workplace, this presumption may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury. In the absence of a drug-free workplace program, this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury.

Both presumptions are exceedingly difficult to overcome. The trick for the claimant is to keep the presumption from being implemented.

Before addressing this subject, it should be pointed out that, in the case of marijuana and cocaine, two of the most popular recreational drugs in our society, the “positive confirmation of a drug” does not equate to proof positive of being under the influence of either drug at the time of the accident. This is because the confirmation testing employed by labs does not detect the element of the drugs that cause impairment. Rather, the testing detects metabolites, which are merely markers showing that the drug has been ingested at some unknown point in time within days and sometimes even weeks of the specimen draw, while the impairment time from these drugs is typically 4-6 hours maximum. This is a big part, in my editorial opinion, of what makes the drug defense so unfair. Many Claimants are being kept from receiving needed workers’ compensation benefits even though the positive confirmation relates to weekend or after-hours use instead of any connection between impairment and the accident.

Back to the presumption.

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wheelchair-300x214Permanent Total Disability (PTD) — defined in section 440.15(1), Florida Statutes — is an indemnity (monetary) benefit sometimes available under Florida’s Workers’ Compensation System to the state’s most severely injured workers. Unless the worker has suffered an injury of the type as set forth in 440.15(1)(b), commonly referred to as a “catastrophic injury,” he or she must wait to reach the date of maximum medical improvement (MMI) before becoming eligible for PTD. In some cases, this can take a year or longer. Moreover, where multiple injuries are involved, the worker must first reach MMI from each injury.

For employees who have suffered “catastrophic injuries,” MMI does not have to be reached to qualify for PTD benefits. According to 440.15(1)(b), “an injured employee is presumed to be permanently and totally disabled” upon sustaining a catastrophic injury. The presumption is rebuttable. To overcome the presumption, the employer or carrier must establish “that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence.” 440.15(1)(b).

In Temporary Labor Source v. E.H., 765 So.2d 757 (Fla. 1st DCA 2000), although the claimant had sustained a catastrophic injury, the Judge of Compensation Claims (JCC) refused to adjudicate the issue of PTD when the matter was addressed at trial. Relying upon medical expert testimony “that the use of a prosthetic device may increase Claimant’s ability and capacity for work,” the JCC reasoned that because the claimant had not reached MMI, PTD was not ripe for adjudication. The judgment was reversed on appeal.

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wheelchair2-300x199Under Florida law, if a workplace injury was occasioned primarily by the influence of alcohol or drugs, workers’ compensation benefits can be denied. Section 440.09(3), Florida Statutes (2018) (Interestingly, while this section provides that “Compensation is not payable,” with section 440.02(7) defining “Compensation” as “the money allowance payable to an employee or to his or her dependents,” the law is used to deny all workers’ compensation benefits, including medical benefits. The issue was addressed in Gustafson’s Dairy, Inc. v. Phillips, where “Compensation” was interpreted to include both medical and indemnity benefits.) It is a popular defense.

Typically, some level of medical care is provided before the workers’ compensation insurance carrier becomes aware of the drug and alcohol test results. For example, our firm is handling a roofing accident resulting in paraplegia for which nearly $200,000 in authorized medical care was provided before a positive test result became known.

We believe that the carrier may be responsible for the medical expenses. Our position is based on section 440.102(5)(p), Florida Statutes, which provides in pertinent part as follows:

“All authorized remedial treatment, care, and attendance provided by a health care provider to an injured employee before medical and indemnity benefits are denied under this section must be paid for by the carrier or self-insurer.”

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