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Many factors go into determining the settlement value of a Florida workers’ compensation case. Although the opposing parties are seeking different outcomes – the Claimant wants to recover as much as possible, while the Employer/Carrier wishes to settle for as little as possible – each side benefits from performing a fair and honest evaluation; neither party gains an advantage from being deluded about a case’s true value.

This is not to say that the parties, after performing their assessments, will always arrive at similar conclusions. Law is more art than science. Judgment calls based on a countless number of variables often result in significantly different conclusions. The goal of successful negotiating is to narrow the differences to an acceptable agreement.

Before considering the factors that influence case value, it should be noted that no party to a workers’ compensation case can be forced to settle. Not even a judge of workers’ compensation claims can force a settlement on the parties. Moreover, there is no jury system in workers’ compensation where a verdict is reached awarding a lump sum of money. Most workers’ compensation cases are mediated, but the settlement can only come through an agreement of the parties.

It should also be noted that compensation for non-economic damages (sometimes referred to as, Pain & Suffering) is not awardable in workers’ compensation cases. (See these blogs: personal injury; wrongful death.)
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Yesterday’s blog was about the primary legal differences between Florida’s workers’ compensation and personal injury systems with regard to accident-related bodily injuries. Today’s blog will address the differences, which are significant, between Florida’s workers’ compensation system and it’s Wrongful Death Act for the loss of life due to accidents.

For the most part, the laws in Florida regarding compensation for death caused by accidents are prescribed by statute. Workers’ compensation addresses the issue through Florida Statute 440.16, while Florida’s Wrongful Death Act (768.16-768.26), covers it in the context of third-party liability. (CAVEAT: There are exceptions to Florida’s workers’ compensation immunity laws that could make the employer liable for damages under the Wrongful Death Act. A lawyer should always be consulted to consider the issue.) The differences between the two bodies of law are significant.

THE MAIN DIFFERENCES:

  • Negligence. As a legal concept, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. It is often difficult to prove negligence. While negligence does not have to be established in a workers’ compensation case, it is a necessary and essential element of every wrongful death case other than those involving strict liability.
  • Damages. The monetary compensation for death in workers’ compensation may not exceed $150,000, up from $100,000 from just a couple of years ago. With the exception of death caused by medical malpractice (see this blog), the wrongful death statute does not contain a similar arbitrary cap. The wrongful death statute allows for what is known as non-economic damages (e.g., loss of companionship; mental pain and suffering). Florida’s workers’ compensation system does not. The primary reasoning for the difference has to do with the issue of negligence. The Florida Legislature has decided that not being allowed to recover non-economic damages is a fair price to pay for not having to prove negligence in workers’ compensation cases. In my view, $150,000 hardly makes for a fair trade-off. Workers’ compensation allows for the recovery of $7,500 in funeral expenses.
  • Who May Recover Damages. Both bodies of law contain statutory schemes for who may recover damages for death resulting from an accident. Each scheme is convoluted. The monetary benefits through workers’ compensation are paid on a periodic basis, while the compensation under the Wrongful Death Act are paid in a lump sum. I have prepared a flow chart for who may recover under the Wrongful Death Act – follow this link.
  • Statute of Limitations. Two (2) years for each. There are exceptions and variations on this black-letter statement, so a knowledgeable lawyer should be consulted before any conclusions are reached.
  • Trial by Jury. Not available in workers’ compensation cases. Available upon request in wrongful death cases.
  • Attorney Representation. Available in both types of cases.

The issues addressed in this blog are complex and complicated, not nearly as simple as they may appear here. It is for this reason that we encourage and highly recommend that these issues be addressed with a qualified attorney.
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As our law firm has an expertise in workers’ compensation and personal injury cases, we are frequently asked to explain to our clients and other lawyers the differences between the two. Although both types of cases involve bodily injuries, they have little else in common.

With rare exception (see Florida Statute 440.11), the remedies available against employers for job related accidents are controlled by Chapter 440 of the Florida Statutes, which is the body of law devoted to workers’ compensation cases. Personal injury cases are controlled by different statutes and case law. The differences are significant.

THE MAIN DIFFERENCES:

  • Negligence. As a legal concept, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. It is often difficult to prove negligence. Whereas proving negligence is not required in workers’ compensation cases, it is an essential element of every personal injury case except those involving strict liability.
  • Compensation for Pain and Suffering. Because workers’ compensation claimants are relieved of the heavy burden of having to prove negligence, the Florida Legislature, as a trade-off, does not allow them to be compensated for pain and suffering. In contrast, personal injury claimants can be compensated for pain and suffering. This difference is easily the most difficult concept for our workers’ compensation clients to understand. It is counter-intuitive. We spend a significant amount of time discussing this concept with all of our workers’ compensation clients.
  • Medical Benefits. Medical benefits are furnished to injured workers pursuant to the workers’ compensation system. It is a lousy system for injured workers (see this blog), with the biggest negative being that employers and their insurance carriers control the selection of all medical providers. By contrast, personal injury claimants do not have automatic medical benefits; claimants must fend for themselves in obtaining medical care. PIP (motor vehicle accidents), health insurance, and Medicare/Medicaid are the main sources sometimes available to cover the expense. It is more difficult for the uninsured. Arrangements can sometimes be made through the lawyer for the provision of medical care. In theory, the personal injury claimant is supposed to be compensated at the end of the case for past and future medical expenses.
  • Lost Wages. Like medical benefits, eligibility for workers’ compensation lost wages starts with the report of a work related accident. The benefit amount ranges from 66-2/3% to 80% of 80% of lost wages. Except for permanent total disability (PTD – 440.15(1)), a difficult standard to prove, the limit for the number of weeks of temporary disability benefits (i.e., prior to reaching maximum medical improvement) a claimant may receive is 104. Only a small percentage of claimants receive the full 104 weeks of benefits. The personal injury system for the payment of lost wages is significantly different. There is no built-in equivalent, like in workers’ compensation, for self-executing benefits to be paid. In some instances, PIP and private disability insurance fill the role, but often those benefits are not available or applicable. For the most part, it is not until the case is resolved that the personal injury claimant is compensated for lost wages past and future. The standards that apply for the determination and entitlement to lost wages also are different between workers’ compensation and personal injury cases.
  • Trial by Jury. Not available in workers’ compensation cases. Available upon request in personal injury cases.
  • Statute of Limitations. 2 years for workers’ compensation, 4 years for personal injury. (Be careful not to confuse the personal injury statute of limitations with the statutes of limitations applicable to wrongful death cases (2 years) and medical malpractice (2 years). Also, in personal injury cases against a governmental entity, although the statute of limitations is 4 years, a particular written statutory notice of claim must be given within 3 years. Finally, and of great importance, sometimes there are ways of extending a statute of limitations beyond the black-letter numbers given above. Accordingly, it is important to discuss these issues with an attorney before concluding that it is too late to pursue any legal claim based on a statute of limitations.)
  • Attorney Representation. Available in both types of case. We handle both type of cases on a contingent basis (no fees and costs payable by the client until we win the case), but, by law, the fee formulas are significantly different.

There are numerous other differences between workers’ compensation and personal injury cases, but these are the main ones. Needless to say, an experienced legal professional should be consulted to discuss all of these issues.
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I have blogged previously on various topics pertaining to premises liability law (open & obvious doctrine; slip & fall; dog bites; and natural conditions. One topic about which I have not written is negligent security.

Negligent security cases involve harm to residents, guests, patrons and the like through the conduct of a bad actor such as a rapist or a mugger.

One of my previous blogs addresses the general principles of Florida law regarding landowner liability for accidents or events that occur on their property. For the most part, every commercial property owner owes some duty of care to those who enter their property, with the level of care being defined by a particular individual’s status on the property (e.g., invitee, invited licensee, uninvited licensee, trespasser). These general principles apply to negligent security cases.

Sadly, rapes and assaults at commercial locations like malls and apartment complexes are events all too common in Florida. Of course, some of these crimes cannot be prevented. However, many could be deterred through reasonable security measures such as improved lighting, beefed up security, video cameras, and eliminating secluded areas.
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I am a member of the Florida Justice Association (FJA), a Tallahassee-based organization dedicated to strengthening and upholding Florida’s civil justice system and protecting the rights of Florida’s citizens and consumers. Within the organization is an Internet discussion group, of which I have been a member for more than ten years, consisting of a sub-group of lawyers who only represent Plaintiffs/Claimants. In other words, no defense attorneys are allowed access to this discussion group. The group discusses legal issues concerning the rights of individuals within the context of the civil justice system. It is an invaluable resource.

Many of my blogs discuss the dangers facing Florida’s civil justice system. Among the specific topics discussed regarding the larger issue deal with what is referred to in Florida as the crashworthiness or enhanced injury doctrine. (Blogs 1, 2, and 3.) I have warned that this important consumer safety law was in danger of being eliminated by Rick Scott and Florida’s Republican-controlled legislature. Well, in just day two of the Rick Scott administration, the doctrine is under assault and, given the Republican numbers, likely to be killed.

Given the importance of the doctrine to the safety and well-being of people in Florida, this assault on the doctrine is a hot topic of discussion on the FJA’s Internet discussion board. I found one post particularly enlightening and have decided to post it here (slightly edited). The author is Florida Attorney Rich Newsome.

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This coming Tuesday afternoon, the Florida Senate Judiciary Committee, chaired by Senator Anitere Flores, will take up an anti-consumer bill involving automobile safety. This bill is being spearheaded by Ford Motor Company and if passed, will have huge consequences for consumers who are maimed and killed by defective cars. (Blogger’s note: In 2009, Ms. Flores introduced and shepherded workers’ compensation legislation that has resulted in the drastic curtailment of the ability of injured workers to obtain benefits. The legislation is in the process of being appealed as unconstitutional to the Florida Supreme Court.)
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Florida police departments are not immune from employing a few bad apples. Occasionally, we learn of a law enforcement officer taking advantage of a vulnerable woman while in uniform during working hours. When such a vile event occurs, the legal question arises as to whether or not the offending officer’s agency must bear civil (as opposed to criminal) responsibility for the officer’s actions. The obvious reaction would seem to be, Yes, of course!!! Unfortunately, the reality is not so simple.

Florida employers may be held liable for the intentional actions of their employees under two legal principles: (1) Negligent hiring. Where the employer knew or should have known prior to hiring that the potential employee was of unfit character, but hired anyway; and (2) Negligent retention. When the employer knew or should have known after hire of an employee’s unfit character, but fails to terminate or modify the employment responsibilities.

However, merely establishing one or both of these principles is not enough. The victim must also show that (1) the unfit character of which the employer knew or should have known had some reasonable relationship to the bad acts committed; and (2) the bad acts were initiated in the course and scope of employment and to serve the interests of the employer.

One of the leading cases in Florida regarding this topic is Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744 (Fla. App. 1 Dist., 1991). Tallahassee Furniture’s employee was hired to deliver furniture to customers’ homes. More than one month after making a delivery, he returned to a female customer’s home and raped her. The young victim sued the employer, Tallahassee Furniture, for negligent hiring and retention.
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worker.jpgThe question often arises in Florida as to whether undocumented workers can be compensated for lost wages (past and future) in personal injury and workers’ compensation cases. With few exceptions, the answer appears to be No.

Although the damages available in workers’ compensation and personal injury cases may differ, both offer elements of awards for lost wages. Proving entitlement requires showing that the lost wages are related to the injuries. However, the employer (wc) and defendant (pi) may nullify the proof by establishing that the claimant is prohibited from working in the United States due to immigration issues. In other words, an immigrant who is not authorized to work in the United States, cannot be compensated under Florida law for lost income resulting from an accident.

The two primary exceptions in workers’ compensation cases are (1) the employee is totally, as opposed to partially, unable to work because of his injuries, and (2) the employer knew or should have known of the employee’s status as an unauthorized alien prior to the disabling accident. (The law of Florida does not impose on an employer the burden of verifying forged or borrowed green cards – Florida Statute 448.09 – nor is there any such federal requirement.)
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In installment #1 of this series of blogs addressing the myth regarding frivolous lawsuits, I tried to debunk the myth through common sense by noting some of the practical considerations that make handling baseless cases untenable for lawyers. In other words, practical considerations alone work against the notion that frivolous lawsuits are a staple of the legal system.

In this blog, I will try to debunk the myth further by discussing actual laws and rules that are designed to eliminate and prevent baseless lawsuits.

Very few cases are not defended. Those not defended typically involve parties who are without money or insurance to mount a defense or pay a judgment, making it a complete waste of time and money bothering to obtain the judgment. Anyone bringing suit against such a defendant may end up with a piece of paper, the final judgment, establishing that money is owed. That piece of paper and $1.00 will get the owner of the final judgment a cup of coffee. In other words, in most instances the final judgment is worthless.
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Many scenarios arise that bring into question the applicability of Florida’s workers’ compensation system for accidents that occur in other states. The general rule is that a worker injured outside of the state is eligible for Florida’s workers’ compensation benefits if:

(1) The employer and the employee entered the contract of employment in Florida; or (2) If the principal location of the employment is in Florida.

(Only one of the two elements must be met, not both.)

The statutory language, located at 440.09(1)(d), reads as follows: “If an accident happens while the employee is employed elsewhere than in this state, which would entitle the employee or his or her dependents to compensation if it had happened in this state, the employee or his or her dependents are entitled to compensation if the contract of employment was made in this state, or the employment was principally localized in this state. However, if an employee receives compensation or damages under the laws of any other state, the total compensation for the injury may not be greater than is provided in this chapter.”
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I agree with the observations, reproduced below, of one Harry Rosenzweig, whose letter was published by The Miami Herald on 12/19/10:

DISLOYAL OPPOSITION

Blaming President Obama for the financial crisis and deficit is delusional propoganda. He inherited this mess and saved us from a far deeper crisis. Further, it is the stated purpose of the “disloyal” opposition to stonewall Obama toward a failed presidency, nation be damned, in their effort to return to political power and the fox-in-the-henhouse policies that brought us to the brink. We are careening toward a government of, by and for the largest corporations and the wealthy. It’s a tragic and concerted effort to destroy our once great nation.
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