FLORIDA INJURY ATTORNEY BLAWG

Workers hurt on the job do not have an unlimited period of time in which to institute legal proceedings against employers and their insurance companies, herein collectively referred to as the “E/C,” to resolve disputes. Rights can be lost if not exercised timely.

Florida statute 440.19 allows for the filing of a petition for benefits — which is how legal proceedings are instituted under Florida’s workers’ compensation system — up to the greater of two 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 or one year from the payment of any indemnity benefit or the furnishing of remedial care.

Under certain circumstances these SOL deadlines can be extended. For example, where the E/C, intentionally or otherwise, misleads the claimant as to his rights or the availability of workers’ compensation benefits with the result that the claimant fails to timely file his claim, the E/C will be estopped from asserting the statute of limitations as a defense. Boyd v. Florida Memorial College, 475 So.2d 990 (Fla. 1st DCA 1985); Foster Wheeler Energy Group v. Fairhurst, 405 So.2d 438 (Fla. 1st DCA 1981); Catalano v. Hillsborough County Board of Public Instruction, 249 So.2d 24 (Fla. 1971); Jenkins v. M.H. Harrison Construction Company, 228 So.2d 911 (Fla. 1969); Engle v. Deerborne School, 226 So.2d 681 (Fla. 1969); Howanitz v. Biscayne Electric, Inc., 139 So.2d 678 (Fla. 1962); Baptist Village v. Newton, IRC 2-3551 (1978), cert. denied, 368 So.2d 1362 (Fla. 1979).

The above examples are obvious. Other situations can be more subtle.

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Section 440.13(5)(e), Florida Statutes (2016) limits who may give medical opinions in Florida workers’ compensation cases.

(e) No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.

The limitation tends to impair injured workers more than it does employers and their workers’ compensation insurance companies (collectively referred to as E/C). The reasons have to do with doctor selection and money.

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Liability insurance policies issued in Florida that provide coverage for personal injuries contain a per person/per occurrence provision. The provision declares the limits of coverage available under the policy.

The Florida Wrongful Death Act outlines who may be compensated for the wrongful death of a person caused by the intentional act or negligence of a third party. The Act refers to these individuals as “Survivors.” Section 768.18(1) Florida Statutes (2016). (Link to this page to see a “Survivors” chart.)

As the chart shows, there can be multiple Survivors in a single case. How does the per person/per incident provision apply to the situation involving more than one survivor?

In Jones v. Zagrodnik, Dean Jones was killed in a collision with a negligent Roger Zagrodnik. Zagrodnik was insured by Home Insurance under a $100,000 per person/$300,000 per occurrence policy. There were three “Survivors.” The Fifth District Court of Appeal limited their recovery to a total of $100,000, reasoning that their claims were derivative from the deceased and fell under the per person limit of the policy.

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NCCI is the only entity that proposes rate increases/decreases to the Florida Office of Insurance Regulation (OIR). It is a private company that does not owe a fiduciary responsibility to the state’s residents. NCCI does not divulge its methodology or source information, calling it “proprietary.”

In 2016, the workers’ compensation insurance industry sent marching orders to NCCI to make the case for a dramatic increase in premiums charged to business owners. The case was presented to the Florida Office of Insurance Regulation and resulted in a 14.5% rate hike.

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Stung from being held accountable by the Florida Supreme Court, Associated Industries of Florida (a/k/a Enemy of the People), commanded by Tom Feeney, he of the 2000 Presidential Election coup, is proposing, on behalf of itself and other workers’ compensation insurance companies, to abolish carrier-paid attorney’s fees.

In Castellanos v. Next Door Company, the Florida Supreme Court ruled that workers’ compensation insurance companies that force injured workers to institute legal proceedings to secure benefits may, in some instances, be required to pay the Claimant’s attorney a reasonable fee. The fee is due only when the injured worker successfully secures wrongly denied benefits. The court described carrier-paid fees as a sensible method of motivating insurance companies to follow the law without the need for judicial involvement (See, Judges of Compensation Claims.) In the court’s view, the threat is the proverbial stick Claimants must have at their disposal to get carriers to comply with the state’s workers’ compensation laws. The ruling was not issued in a vacuum. A long historical record shows that it works.

Which is why it is opposed by Associated Industries. AI abhors the idea of workers being able to compete for benefits on a level playing field. Its legislative proposal looks to slant the field back in its favor — the Castellanos justices spoke at length about leveling the playing field.

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