FLORIDA INJURY ATTORNEY BLAWG

This previous blog — Florida Workers’ Compensation Permanent Total Disability (PTD) and the Social Security Disability (SSD) Offset — explains how workers’ compensation benefits and Social Security Disability benefits can offset each other. Today’s blog explains what happens when the workers’ compensation case settles.

Federal law (42 U.S.C sec. 424a) and Florida law allow workers’ compensation Employers/Carriers to reduce their payments to injured employees who are receiving both Social Security Disability and workers’ compensation indemnity benefits at the same time. Section 440.15(9)(a), Florida Statutes (2018), provides:

Weekly compensation benefits payable under this chapter for disability resulting from injuries to an employee who becomes eligible for benefits under 42 U.S.C. s. 423 shall be reduced to an amount whereby the sum of such compensation benefits payable under this chapter and such total benefits otherwise payable for such period to the employee and her or his dependents, had such employee not been entitled to benefits under this chapter, under 42 U.S.C. ss. 402 and 423, does not exceed 80 percent of the employee’s average weekly wage. (Bold added.)

When a Florida workers’ compensation case settles, the payment of indemnity benefits ends. Hence, the workers’ compensation carrier will no longer be taking an offset. This opens the door to the Social Security Administration to take the offset.

Steps are available to Florida workers’ compensation attorneys to reduce or eliminate the SSA offset. This is accomplished by doing a “Sciarotta Allocation.”

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The following editorial was published on January 16, 2018, in the Tampa Bay Times newspaper. It is fair and balanced.

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Editorial: Balancing the playing field for workers’ compensation

For the longest time, injured workers in Florida were basically at the mercy of the whims of employers to treat them fairly. A 2003 law aimed at reducing the cost of workers’ compensation coverage for businesses had the desired impact, but it also discouraged attorneys from getting involved in workers’ comp cases and resulted in a drop in the number of claims. Then the Florida Supreme Court ruled in two 2016 cases on behalf of workers’ rights, causing the pendulum to swing back in the direction of employees and resulting in significant rate increases for employers. The Florida Legislature is again proposing reforms, but it needs a more prudent and equitable approach.

Clearly, this is an area that needs to be monitored closely. Between spurious claims and the potential for excessive attorney fees, a poorly run workers’ compensation system could have an adverse impact on the state’s economy. For example, after the state Supreme Court rulings, the premiums for businesses seeking workers’ compensation insurance jumped 14.5 percent in 2016-17.

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Section 440.15(4)(e) of the Florida Statutes provides as follows: “If the employee is terminated from postinjury employment based on the employee’s misconduct, temporary partial disability benefits are not payable as provided for in this section.”

Simple enough, right? Not necessarily.

For starters, 440.15(4)(e) is qualified by section 440.02(18), which provides in pertinent part as follows:

‘“Misconduct”’ includes, but is not limited to, the following, which shall not be construed in pari materia with each other:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of the employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of an employer’s interests or of the employee’s duties and obligations to the employer.

This heightens the standard for authorizing the denial of temporary partial disability benefits (TPD) above innocent acts of misconduct. If Mr. Jones is fired for showing up late to work one day because of a flat tire, it is unlikely that TPD benefits will be denied on the basis of 440.15(4)(e). Now, if Mr. Jones makes a habit of showing up late on a regular basis without a darn good excuse — and even then — the story may likely have a different ending.

In the Mr. Jones example, the distinction is between termination for cause and termination for misconduct. See Thorkelson v. NY Pizza & Pasta Inc., 956 So. 2d 542 (Fla. 1st DCA 2007) (“Clearly a claimant is not disqualified from workers’ compensation benefits just because she ‘”was terminated . . . for cause.”‘)

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Workers’ compensation claimants have the burden of showing that the workplace accident is the major contributing cause of an injury. Section 440.09(1), Florida Statutes (2017). Major contributing cause, or MCC, 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. Sec. 440.09(1).

This is not an issue in every case. Many injuries are accepted by the Employer/Carrier (E/C) without dispute. Doing so prevents the E/C from later denying compensability of the accepted injuries. However, if the E/C is uncertain of its obligation to provide benefits, it may choose to provide benefits under a reservation of rights pursuant to section 440.20(4), Florida Statutes (2017).

Unlike the unconditional acceptance, this section affords E/C the option of denying compensability within 120 days after the initial provision of compensation or benefits. If, however, the E/C fails to deny compensability of an injury within 120 days after the initial provision of benefits for an injury, it waives the right to deny compensability of this injury “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.” § 440.20(4), Fla. Stat. (2017). See, e.g., McIntosh v. CVS Pharmacy, 135 So. 3d 1157, 1159 (Fla. 1st DCA 2014); Bynum Transp., Inc. v. Snyder, 765 So. 2d 752, 754 (Fla. 1st DCA 2000); see also § 440.192(8), Fla. Stat. (2017) (“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, unless it can establish material facts relevant to the issue of compensability that could not have been discovered . . .”)

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Florida law grants workers’ compensation insurance companies the exclusive authority to control the selection of the injured worker’s treating medical providers. Section 440.13(2), Florida Statutes (2017). This leads to carriers repeatedly selecting providers with a track record of siding with them.

Thankfully, the authority is not unbridled. One of the main restrictions concerns the proximity of the medical provider to the claimant’s community of residence. In Wright v. Golf Drive Residence, Inc., 412 So. 2d 884 (Fla. 1st DCA 1982), the JCC‘s decision requiring the claimant to travel from her home in Naples to Fort Myers for further treatment was reversed on appeal. The court reasoned that it was unreasonable for the deputy to require her to travel outside her home community in Naples where adequate treatment is available.* A similar result was reached in Hall’s Camp, Inc. v. Decker, 394 So. 2d 1041 (Fla. 1st DCA 1981), where the trial court was affirmed for ordering the carrier to pay for medical care provided by the only specialist in the claimant’s area. The appellate court held that it would be unreasonable for the carrier to have required the claimant to travel outside of her local Arkansas community for treatment by another orthopedic surgeon.

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