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Articles Posted in Workers’ Compensation

Workers’ compensation, sometimes known as workers’ comp, is a type of insurance that provides wage replacement and medical benefits to qualifying Florida employees who suffered injuries or illness in the course of their employment. Employers offer this benefit in exchange for the employee’s relinquishment of their right to sue the employer for civil negligence.

Although the legislative intent of workers’ compensation appears as an employee benefit, in practice, workers’ compensation often benefits employers, specifically those employers who have particularly hazardous work environments. Those who have suffered injuries at the workplace should consult with an attorney to determine the steps to take to preserve their rights to workers’ compensation benefits and potential third-party claims.

Steps to Take After a Workplace Injury

After a workplace injury, employees should report the accident or illness to their employer as soon as possible, but no later than thirty days after the incident. Then, the employer should report the injury to the insurance company no later than seven days after their knowledge. If they fail to do so, the employee has the right to report the injury to their insurance company. Employees should always seek medical treatment authorized by their employer or insurance company.

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In a recent decision, the First District Court of Appeals in Florida issued an opinion in an appeal involving a cancellation fee charged by the Employer/Carrier’s (E/C) independent medical examiner (IME). According to the record, Claimant was required to attend the independent medical examination while wearing a mask by the E/C. The parties did not dispute that Claimant attended the examination while wearing a mask. However, the E/C stated that by bringing a videographer to record the examination without prior notice, causing the IME to refuse to conduct the examination while being filmed, Claimant became responsible for half of the IME cancelation fee under section 440.13(5)(d), Florida Statutes (2019). E/C’s claim states that this is due to the fact that Claimant’s actions amounted to a “constructive no-show” by behaving in a manner that caused the IME to cancel the examination.

The judge of compensation claims (JCC) agreed with the claims made by the E/C, finding the cancellation was entirely of Claimant’s making as she did not provide notice that she would bring a videographer. Subsequently, the JCC granted the E/C an “award of taxable costs of $900.00 for one half of a cancellation fee charged by the E/C’s IME” under section 440.13(5)(d).

The appellate decision acknowledges that Florida Rule of Civil Procedure 1.360(a)(1)(A) “requires that the person to be examined must advise if the examination is to be recorded or observed by others, and shall include, inter alia, the number of people attending and the method or methods of recording,” but points out that “no corollary for this exists in the workers’ compensation rules or statutes.” In fact, the appellate court decision highlights the JCC’s broad discretion to award costs in such cases, and states that “generally, if a claimant can show good cause for the failure to attend an IME, no sanctions are awarded.” The appellate opinion further states that “the JCC must also ensure that the cancellation fee was properly charged, and the amount was appropriate under the circumstances.” Finally, the appellate decision points out that section 440.13(5)(d) “provides that payment of half of the no show fee” attaches if “the employee fails to appear for the independent medical examination,” but makes no mention of the “constructive failure to appear” that the JCC cites to. Ultimately, the appellate opinion finds that Claimant should not be charged with paying half of the IME cancellation fee under the facts presented.

Most Florida employers are required to have workers’ compensation insurance to cover the medical expenses of an employee who was injured while working. Workers’ compensation insurance guarantees that all medical treatment for work-related injuries will be paid for on behalf of the employer, following Florida law. Workers’ compensation insurance also can cover additional expenses and accommodations that may need to be addressed as an injured employee returns to work. Although workers’ compensation laws and insurance are designed to insulate workers from the consequences of an injury, many employers and employees do not have a full understanding of what is covered, and how to make a claim. The Florida Division of Workers’ Compensation website has a workers’ compensation section that addresses many of these questions.

Florida workers’ compensation insurance covers all of the medical bills that were incurred from an on-the-job injury. Additionally, employees are entitled to ⅔ of their usual wages if they are unable to work for over 7 days. To start the process of using workers’ compensation coverage for medical care, an injured employee should report the injury to their employer as soon as possible after the injury. Failure to report an injury within 30 days may result in the denial of an otherwise eligible claim. Within 7 days of receiving the report from their employee, your employer should notify their insurance company of the claim. If an employer is refusing to cooperate, the employee also may notify the insurance company themselves.

After a workers’ compensation claim has been opened, the injured worker should be able to receive all medical treatment that was ordered by the doctor. This includes any inpatient or outpatient care, physical therapy, prescriptions, and other ancillary care related to the injury. Compensation for lost work is also available, but may only cover anywhere from one to 104 weeks, depending on the facts of each case. Injured workers may also be eligible for other benefits through the federal government’s social security program, however, coverage limits do apply.

If a worker is injured on the job, there may be many avenues of relief for them to receive treatment and compensation. In the event of a purely accidental injury, the first line of coverage for an injured worker is workers’ compensation insurance. This insurance will pay for treatment and lost work expenses for an injured employee of the policyholder. Workers’ compensation coverage is desirable because it covers injured employees regardless of fault. Workers’ compensation coverage does not generally pay out as much as would a negligent or intentional tort claim.

In Florida, an injured worker may be able to pursue a personal injury claim against their employer or any other negligent party who caused the worker’s injuries. A personal injury claim may include higher amounts of damages for things like disability/disfigurement, pain and suffering, and other special damages. Because personal injury claims allow larger awards than workers’ compensation claims, injured Florida plaintiffs may want to pursue a personal injury claim instead of a worker’s compensation claim when appropriate. The Florida Court of Appeals recently rejected an injured plaintiff’s attempt to recover damages for her workplace injury through a personal injury claim.

The plaintiff in the recently decided case was the project manager for one construction company on a construction site. Employees for the defendant, another subcontractor on the job, moved a staircase from in front of the plaintiff’s trailer and failed to return it before leaving. After the plaintiff arrived at her trailer in the early morning, she didn’t see the missing staircase, fell over 3 feet, and was injured. The plaintiff pursued a worker’s compensation claim with her employer as well as a personal injury claim against the company that employed the workers who moved the staircase.

Recently, the First District Court of Appeals in Florida issued an opinion in an appeal involving a workers’ compensation claim from a correctional officer who suffered a cardiac arrest. According to the record, while the Bradford County Sheriff’s Office (BCSO) initially accepted compensability under Florida’s “pay-and-investigate” law, the BCSO later denied the claim. The correctional officer countered the denial, stating his claim was valid under the so-called “Heart-Lung” statute, which creates a presumption in favor of firefighters, police officers, correctional officers, and others that any “condition or impairment” that is “caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary [is] shown by competent evidence.”

The judge of compensation claims (JCC) denied his claims, reasoning that the correctional officer “must have successfully passed the physical examination required by this subsection upon entering into service as a . . . correctional officer . . . with the employing agency, which examination must have failed to reveal any evidence of tuberculosis, heart disease, or hypertension.” While the JCC found that the correctional officer did not successfully pass a physical examination upon entering service as a correctional officer, that was due to the fact that the BCSO does not require correctional officers that were previously working part-time to take a physical examination upon beginning service as full-time correctional officers. The plaintiff passed a physical examination when he initially began work as a part-time correctional officer.

In fact, in a dissenting opinion, it is highlighted that the employer, BCSO, failed to require and affirmatively disavowed the need for a renewed physical examination for the plaintiff or any part-time correctional officer who is promoted to full-time employment. BCSO’s policy affirmatively prevents the physical examination required by statute. The dissenting opinion states that, by failing to either require an additional test when part-time correctional officers begin service as full-time correctional officers or by disavowing the need for a renewed physical examination, the BCSO forfeits the ability to contest the statutory presumption that would otherwise arise in this matter.

As offices begin a return-to-work plan, Florida is set to experience an influx of daily commuters. Although traveling to work is a necessary part of many people’s lives, daily travel can pose risks to commuters. Those who commute the same way to work every day often feel a sense of security and may ignore their surroundings. However, commuters may merely be victims of another reckless or negligent party in some cases.

Workers’ Compensation

In Florida, employers conducting work in the state must provide workers’ compensation insurance to their employees. The specific coverage requirements vary depending on the industry or organization and the number of employees. Some business owners may opt-out of the insurance coverage if they meet the exemption requirements.

The law applies to all accidental injuries and occupational conditions arising out of and in the course and scope of employment. However, the law does not cover certain mental or nervous injuries related to stress or fright. Further, pain and suffering damages are not compensable in Florida.

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The District Court of Appeal recently issued an opinion stemming from an employee’s appeal of his Florida workers’ compensation claim. The employee worked as a baggage handler for a major airline when the accident occurred. On the day of the incident, the claimant clocked out walked through security toward a parking lot shuttle bus stop when he injured his calf stepping off of the curb. The claimant reported the accident to his superiors and visited an on-site medical clinic the next day. The clinic workers provided the claimant with pain medications, crutches, a boot, and a prescription for an MRI. After his MRI, providers referred him to an orthopedist. His employer and later the Judge of Compensation Claims (JCC) denied his claim for benefits.

On appeal, amongst several issues, the claimant argued that the JCC improperly applied the “going or coming” statute under § 440.092(2). The statute typically precludes workers’ compensation benefits for injuries while an employee is commuting to or from work. Under the law, injuries occurring while going or coming to work are not an injury “arising in and out of” or under the “course and scope of” employment. This preclusion applies whether or not the employer-provided transportation if transportation was available for exclusive personal use by the employee. An exception applies if the employee was on a “special mission” for the employer.

The employee argues that the statute does not apply in his case. Instead, he cites the premises rule. Under the premises rule, an employee with fixed hours and place of work who suffers injuries while going to or from work is in the course of employment if it happened on the employer’s premises. He contends that the injury occurred while traveling the area between two parts of his employer’s premises. In support, he purports that the public areas between his job site and the parking lot are part of the regularly used premises of the employer.

Florida Statute 112.18, otherwise known as the Heart-Lung Bill (HLB), provides protections to first responders who develop certain cardiovascular conditions at work. The HLB protects first responders such as law enforcement officers, correctional officers, and firefighters who experience injuries or illnesses related to tuberculosis, high blood pressure, or heart disease during their employment. The HLB presumes that if the Claimant develops one of these conditions during their employment, as long as it was not a pre-existing condition, it was a direct consequence of their employment.

However, the potential recipient must meet the four requirements of the HLB. The presumption requires claimants to:

  • Fall into the protected class,

Recently, the First District Court of Appeal in Florida issued an opinion in an appeal involving claims from a teacher who suffered injuries after falling in a classroom where he worked. According to the record, the teacher sustained injuries after losing his balance because his leg fell asleep. The judge of compensation claims (JCC) denied his claims, reasoning that the teacher’s injury did not “arise out of” his work as a teacher.

The doctor performing the independent medical exam (IME) on behalf of the school district testified that the teacher reported occasional numbness before the accident. However, the numbness the teacher experienced after the fall was not related to any medical illness. Instead, the numbness the teacher experienced before the fall was likely the result of brief nerve compression. The teacher’s expert reached a similar conclusion. In response, the teacher argued that he sufficiently established “occupational causation” because the accident happened in the “course and scope” of his employment.

Florida’s Workers’ Compensation Act compensates an employee’s injury if it stems from an accident that “arises out of the work performed in the course and scope of employment.” Arising out of and in the course of employment refers to where and under what circumstances the incident occurs. Understanding that work causation is not always straightforward when the incident involves an idiopathic condition, the fact remains that there must be a causal connection between employment and injury.

Recently, an appeals court issued a decision in a Florida workers’ compensation case where the Employer appealed the Judge of Compensation Claims (JCC) order. In this case, the E/C granted the employee/claimant’s request for a one-time physician change. The E/C agreed and scheduled the Claimant with a new physician. The new doctor and E/C completed a new form fee agreement that exceeded the base amount under the workers’ compensation fee schedule. The Claimant argued that the higher-than-schedule fee transformed the physician into an independent medical examiner (IME) instead of a treating physician. As such, the JCC terminated the E/C physician and allowed the Claimant to receive a one-time physician change. The E/C claimed that it was an error to strike the physician based on a fee agreement.

Florida’s workers’ compensation code does not provide JCCs with authority to disqualify a treating doctor because a claimant was dissatisfied with the fee reimbursement agreement between the physician and E/C. Under Florida law, a JCCs role does not extend to resolving disputes about fee arrangements between treating doctors and E/Cs. Further, the workers’ compensation code permits higher-than-fee schedule agreements. Finally, the law does not provide claimants with a recourse for litigating complaints regarding reimbursements before a JCC.

In this case, the court reasoned that the JCC’s authority does not extend to striking a provider’s authorization in light of the law. Moreover, the court recognized that the form used by the E/C and doctor did not include the statutory language that the law requires. However, the E/C and physician amended their agreement before the Claimant‘s rescheduled appointment. Finally, the court found that the workers’ compensation code does not allow claimants to disqualify their E/C-authorized doctor before a JCC. As such, the court reversed the JCC’s final compensation order.

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