FLORIDA INJURY ATTORNEY BLAWG

Florida Statute 440.02(1), which is contained in the definitions section of Florida’s workers’ compensation system, defines “Accident” as “an unexpected or unusual event or result that happens suddenly.” Can an injury resulting from an event that is not unexpected or unusual be compensable under Florida’s workers’ compensation system? Yes.

In Bryant v. David Lawrence Mental Health Center, 672 So.2d 629 (Fla. 1st DCA 1996), the Employee/Claimant, who was employed as a housekeeper at a mental health facility, squatted to lift a bag of laundry off the floor of the laundry room and felt immediate pain in her right knee. She sustained a tear of the lateral meniscus in that knee.

Because squatting is not an unexpected or unusual event, the Employer/Carrier denied the claim, and it was able to get the judge of workers’ compensation claims (JCC) to agree with its position that “her [the Claimant’s] injury was idiopathic and did not arise out of the claimant’s employment because her employment did not expose her to any greater risk than she experiences in her everyday life and to which the population as a whole is exposed.” (Miriam-Webster defines idiopathic as an injury “arising spontaneously or from an obscure or unknown case.”)

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Florida’s workers’ compensation system has two distinct time bars for filing petitions to seek benefits. Most people are at least vaguely aware of one of the concepts, known as the statute of limitations (SOL). Florida’s workers’ compensation SOL is enunciated in section 440.19, Florida Statutes.

The other time bar is laid out in Florida Statute 440.185(1), reproduced below:

(1) An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under this chapter unless:

(a) The employer or the employer’s agent had actual knowledge of the injury;

(b) The cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;

(c) The employer did not put its employees on notice of the requirements of this section by posting notice pursuant to s. 440.055; or

(d) Exceptional circumstances, outside the scope of paragraph (a) or paragraph (b) justify such failure.

This blog addresses subsection (d).

The statute is often interpreted strictly to the detriment of the injured worker. Accordingly, while there is some room for challenge built into every subsection of the statute, it is nevertheless advisable to err on the side of caution by giving notice [to the employer] whenever practicable within 30 days of  having even the slightest indication a work-related injury may have been sustained.

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Individuals receiving Florida workers’ compensation benefits for serious medical conditions must give deep thought and consideration to the role of Medicare in their future medical plans. This is especially so for those who are eligible or soon to be eligible for Medicare.

Because workers’ compensation has primary responsibility [for covering medical care associated with work-related injuries] versus Medicare’s secondary payor status, failing to adequately account for Medicare’s imperatives may keep the Centers for Medicare & Medicaid Services (CMS), a branch of the Department of Health and Human Services (HHS), the federal agency that runs the Medicare Program, from covering much needed future care and services.

Most Florida workers’ compensation cases end up settling. The settlement can take the form of a lump sum (all at once) payment or a structured settlement (which may also include a lump sum component). In consideration for this compensation, claimants must typically forego the right to receive future workers’ compensation medical benefits.

Given its status as a secondary payor, Medicare expects a portion of the lump sum and structured settlement money to be used by the claimant to cover the cost of medical care received in the future in connection with the work-related injuries. Until the amount, which should be pre-established by experts and approved by Medicare — in the absence of pre-approval, we try to get the workers’ compensation insurance carrier to agree to cover the difference between the informal earmarked amount and a later amount Medicare may claim is due — is exhausted and properly accounted for, Medicare will not undertake its role as a secondary payor, i.e., begin making payments for work-related injuries. For example, if $53,000 (a number we used in a recent settlement) were earmarked for this purpose, Medicare would not make any payments until the entire $53,000 (plus interest, if applicable) were exhausted on the claimant’s medical care (for Medicare covered services only — meaning that any money expended for non-covered services does not count against the set-aside amount that must be exhausted before Medicare pays penny one.) See, July 23, 2001 Medicare memo.

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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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