WORKERS’ COMPENSATION FAQs

Basically, it’s a set of laws (Florida Statute 440) afforded to those whose injuries occurred by accident and arose out of the course and scope of employment. But it’s not as simple as that. 

You, as the injured worker, are considered a Claimant. Then you have your Employer and its work comp insurance company, called the Carrier, and its representative, called an Adjuster; sometimes the Carrier has another company handling the case, called a Servicing Agent. On the medical end, there are authorized doctors, expert doctors (called Independent Medical Examiners – “IME’s”), and the judge’s expert (called Expert Medical Advisor – “EMA”).

Some other experts include Vocational experts, who offer opinions as to the classification of your work and whether you can work at all; economists, who offer opinions on the present and future value of monies; and others. On the employment end, you have your supervisor and co-workers.

No. Your employer should have work comp insurance, and what we do is petition to the Court for the insurance company to provide and pay for those benefits enumerated in the Statute.

Your employer is required to have work comp insurance in the following instances: (1) Non-construction industry – four or more employees including business owners who are corporate officers or LLC members; (2) Construction industry – one or more employees including business owners who are corporate officers of LLC members; (3) Agricultural industry – six or more regular employees and/or twelve or more seasonal workers who work more than 30 days during the season but not more than a total of 45 days in a calendar year.

Then your case just became way more difficult in that it is your employer would have to pay for your benefits out-of-pocket. However, since your employer was required to have coverage but didn’t, per FS 440.06, it would lose certain defenses to the case such as that the injury was caused by the negligence of a fellow servant, that the employee assumed the risk of his/her employment, or, most importantly,  that the injury was due to the comparative negligence of the employee.

Work comp provides lost-wage benefits (called “indemnity” or disability benefits) as well as medical care. It does not provide for pain & suffering nor loss of enjoyment of life like a personal injury case does. 

The first thing we need to do is send the insurance company a grievance letter requesting payment for and provision of specific benefits to occur within the Statutorily-proscribed timeframe. If the insurance company doesn’t provide or authorize those benefits timely, then we can file our claim with the Court, which is a called a Petition for Benefits (PFB).

If your work comp doctor recommends any medical care, I need to attach the report or script containing the recommendation to the PFB. If you aren’t getting paid, I need the date you were last paid/last worked, your 13-week wage statement, and information regarding any income you’ve received during that period of lost time in order to prove your claim.

This is called comparative fault. Fortunately for you, your fault in causing the accident is not taken into consideration unless you purposefully hurt yourself, unlike in a personal injury case where your own fault is important and diminishes the value of your case. Florida is a no-fault system that was created in exchange for not being able to sue your employer (in most instances).

Unfortunately, in most cases, you do not. Injured workers lost the right to choose their doctors many years ago. Rather, it’s the insurance company who gets to choose your doctors and the provision of medical care, except that you have the absolute right to choose your pharmacy (for now) per FS 440.13(3)(j). I’d recommend you use a pharmacy that will make life easier for you and help with the stress of not knowing if you will get your meds. Pharmacies

Per FS 440.13(2)(f), you have the right to a one-time change in physician once per case. This physician cannot be affiliated with the first physician and has to be within the same specialty as the first physician. This physician is also chosen by the insurance company unless, in the rare occurrence that the insurance company does not respond to our request within five calendar days of receipt, in which case, the choice is yours. 

At that point, in my opinion, you have a few choices: (1) keep that doctor and get nothing else meaningful from your case; or (2) get an expert (called an Independent Medical Examiner “IME”) to provide an evaluation and make recommendations.

Even if your work comp doctor has released you, you may continue to see your doctor for follow-ups, but you have to pay a $10.00 copay every visit per FS 440.13(13)(c). Per FS 440.19(2), you MUST see your work comp doctor at least once per year (but we recommend twice per year) in order to keep your case open, otherwise you will have violated the Statute of Limitations (“SOL”) and you will be forever barred from receiving benefits on your case again.

Per FS 440.13(5), you can get an IME, whose opinions are admissible in Court. The purpose of the IME is to get a medical opinion, which is required to further pursue getting you benefits once your work comp doctor releases you. An IME cannot provide you with treatment; only an evaluation. After your evaluation, if your IME makes recommendations, we can either: (1) pursue those benefits, or (2) settle your case. The choice is yours.

Settlement is where you receive a lump-sum of money, tax-free, in your pocket in exchange for closing out your work comp case, meaning no more medical care or lost wages paid for or provided by the insurance company. Another caveat of settling is that you would have to separate from and agree to never work again for the employer where you got hurt. Your case’s worth is based on the value of future lost wages and medical care, and we’d, typically, settle for between 40%-60% of that value. Settling is not mandatory, and no judge could ever force you to settle, unless you’ve already signed settlement documents and there is no valid reason for overriding that agreement. 

If you want to pursue the IME’s recommendations, we would file a PFB, which will be denied by the insurance company, and then prepare to go to Court to ask the judge to order the insurance company to pay for and provide the IME’s recommendations. The caveat is, if we win, the work comp doctor who had initially released you would be the one to perform the IME’s recommended treatment; not the IME who recommended it.

In this instance, if the judge agrees that the opinions are different, the judge will appoint a tie-breaking doctor as his/her expert, who is called an Expert Medical Advisor (“EMA”). This doctor’s opinion, essentially, becomes the judge’s opinion as the EMA’s opinion is presumed correct. However, this is a rebuttable presumption, meaning you can overcome it; but, in my experience, the chance of that happening is slim-to-none.

Yes, under certain circumstances. You, at least, need to be on work restrictions per the work comp doctor, IME, or EMA; not at maximum medical improvement (“MMI” – no medical care will make you better); and your employer has not given you a written job-offer for a specific job within those restrictions. There are some other caveats, though.

Some other considerations include whether you were fired and, if so, was it for misconduct; being fired for-cause is not a defense to paying indemnity. Also, did you quit? If so, why? Your quitting might be considered voluntary limitation of income, which is a defense to paying indemnity. If the reason you aren’t working is unrelated to your work comp injury, that may be a defense to paying indemnity as well. A finding of Fraud is not only a defense to paying indemnity, but also to providing medical benefits.

Per 440.14(1)(a), the amount of your work comp checks is based on what your employer has paid or contributed to you in the thirteen weeks prior to your accident, which is called your average weekly wage (“AWW”). Then, based on the level of your disability, you are paid a percentage of the AWW, usually every two weeks.

Per FS 440.14(1)(b-d), if you have not worked substantially the whole (75%+) of the thirteen weeks before your accident, then your AWW could be based on a similar employee, the calendar year (for seasonal workers), or your actual wages.

Per FS 440.13(4)(a), your pay shall be equal to 80% of the difference between 80% of your AWW and the salary, wages, and other remuneration you are able to earn post-injury. Basically, depending on how much you’re making, you could be paid the difference in what you’re making and what you should be have been paid.

Per FS 440.19(1), you have to file a PFB within two years of the date on which you knew or should have known that your injury (or death) arose out of work performed in the course and scope of employment. If you do not do this, you may have violated the Statute of Limitations (“SOL”) and you may be forever barred from receiving work comp benefits again. 

While not, per se, another SOL, there is a reporting requirement. Per FS 440.185(1), you have 30 days after the date of or initial manifestation of the injury to report your injury to your employer. Failure to do so may result in being forever barred from receiving work comp benefits again, except in certain circumstances. 

This would be considered a repetitive-trauma accident, where you aren’t injured in one accident but, rather, in many smaller instances the result of which culminates in an injury. This may be covered under work comp, but, in my experience, will most likely be denied by the insurance company.

Per FS 440.02(1), exposures may be covered under work comp, but, in my experience, they are almost impossible to prove. The burden of proof in exposure cases requires being able to measure the exact amount to which you were exposed (the nearly impossible part) and then correlating it to your resulting condition(s). A prime example of this is having respiratory issues due to mold exposure, but, to have it covered under work comp, we would need to know the exact amount of mold spores to which you were exposed, which would be impossible if the moldy wall was destroyed before testing was done. Our burden of proof is also heightened, which makes it difficult to prove these cases.

Per FS 440.02(1), pre-existing conditions may also be covered under work comp, but only if the acceleration or aggravation of the pre-existing condition can be reasonably attributed to the accident. An example of this is someone who has arthritis but no pain or treatment until after the accident. It can be argued that your accident has accelerated the arthritis and made it symptomatic, and, but for the accident, you may have never had pain or needed treatment.

Fraud is a defense to your entire case. Per FS 440.105, if you make a misrepresentation knowing that such statement contains any false, incomplete, or misleading information for the purpose of securing work comp benefits, your case may be dismissed for fraud. The most often examples where fraud is asserted relate to prior injuries or accidents or exaggerating the limitations from your work-related injuries.

If we’ve already started representing you and have spent time and money on the case, but you want to back out, there are a few ramifications. (1) You will have to pay attention to the SOL on your own (see above) and handle all other aspects of your case, and (2) your attorney will file a lien on the case so that, in the future, if you decide to proceed with your case and you get money for your case, not only will you have to pay your new attorney, but you will have to pay the original attorney too; however, if you don’t proceed with your case or you don’t get any money for it, you won’t have to pay either attorney back.

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