FREQUENTLY ASKED QUESTIONS ABOUT
WORKERS’ COMPENSATION IN FLORIDA
The following are some brief and general answers to some commonly asked questions about Florida Workers’ Compensation law. Please take note that our office will be happy to speak with you on the telephone free of charge to answer specific questions that you may have about your particular situation. The following is for general informational purposes only and is not intended to be a legal opinion or substitute for legal advice regarding your particular circumstance. The workers’ compensation laws are complex and sometimes involve exceptions to the general rules. The workers’ compensation law in effect on the date of your accident controls the substantive benefits that you are entitled to. If you need legal advice, please call our office or a workers’ compensation practitioner in your area.
1) Is my injury covered under Florida Workers’ Compensation Law?
If your injury arises out of the course and scope of your employment, it will be covered under Florida Workers’ Compensation Law. There are several grey areas regarding what constitutes “arising out of the course and scope of employment”, but for the most-part, accidents that happen while working are covered. In addition, occupational diseases and injuries that occur from the seemingly insignificant repetitive trauma of the job which cumulatively produce an injury are also covered. (For example, if although there is no actual accident, but repetitive typing or assembly motion causes pain and injury, this would be covered.) The work performed must be the major contributing cause of your disability or need for medical treatment.
2) I had a prior injury to my back, and now I’ve aggravated it while working. Is my back condition covered under Florida Workers’ Compensation law?
The short answer is... it depends. First, it depends upon what the date of your accident is because there are different standards depending upon the date. Second, it depends upon whether the major contributing cause of your need for treatment is the prior injury or the aggravation. In general, we can usually put forth a good argument that your case should be covered. Call us for a detailed analysis as to whether the aggravation will be covered in your case.
3) Can I sue my employer for injuries that I received on the job?
In most cases, the doctrine of workers’ compensation immunity prevents an injured worker from suing an employer for injuries that arise out of work or are due to employer negligence, and the worker is left with the remedy or workers’ compensation benefits. However, if the employer has failed to secure workers’ compensation coverage, or if the workers’ compensation carrier has denied that the injury is compensable, the employer may lose their immunity to a personal injury suit. Furthermore, in some cases where the employer has placed the employee in a situation where it is a virtual certainty that the employer’s conduct or workplace will result in injury or death, a civil suit for damages may be brought. We will be happy to provide a free consultation to determine if your situation rises to the level where suit may be brought against your employer.
4) Do I need an attorney to represent me?
If you have any question as to whether you are receiving appropriate medical care or that the benefits being provided are correct, you certainly should contact an attorney. The workers’ compensation laws and benefits are complex and it is wise to ask specific questions of an attorney regarding your particular situation. The insurance companies and employers have attorneys who are looking out for their best interest, not yours. We will be happy to offer you a free telephone consultation to address your case and explain your rights.
5) Can I settle my workers’ compensation case for a lump sum of money?
Most workers’ compensation cases can be settled for a lump sum of money. This is a lump sum amount of money paid by the insurance company or employer in exchange for their obligation to provide workers’ compensation benefits. The amount of the settlement depends upon the nature of the injuries, whether benefits have been correctly paid in the past, and potential future benefits. Settlement is not mandatory and neither you, nor the Employer/Carrier can be forced to settle a claim. One of the things that our firm can offer is our assistance and expertise in evaluating your case and negotiating as large a settlement as possible with the workers’ compensation insurance company.
6) What do you charge for attorneys’ fees in a workers’ compensation case?
No money is due up front or out of your pocket. Our fees are payable out of a lump sum settlement or out of benefits that we obtain for you from the employer/carrier that are provided within 30 days of the filing of a petition for benefits. Attorney’s fees are due at the rate of 20% for amounts up to $5,000, 15% of any amounts from $5,000 through $10,000, and 10% of any amount above $10,000. (Note that the fee is different for accidents occurring prior to 1994.) Attorney’s fees and costs may also be due from the employer/carrier if they fail to provide benefits within 30 days of receiving a petition for benefits, and then they voluntarily provide the benefits, or are ordered by a judge to provide the benefits.
7) Although I reported my injury to my employer, they have not provided any benefits. How can I get the workers’ compensation benefits started?
Under the law the Employer and their Carrier (insurance company) are required to provide all reasonably necessary medical care and certain disability benefits as defined by the law. After an injury is reported, the Employer is supposed to file a First Report of Injury with the carrier within seven days. By law the Employer is required to display a poster that tells employees the name of the workers’ compensation insurance company and their address and phone number. This enables the employee to report the claim directly to the insurance company if the employer fails to do so. If the employer has failed to post the name and address of the Carrier, there is a database kept at http://www.fldfs.com/WCAPPS/Compliance_POC/wPages/query.asp where an employee can search for the name of the carrier.
If you require emergency medical care, go directly to the nearest emergency room for treatment or call 911. The employer/carrier is responsible for emergency care even if they did not provide prior authorization.
8) I’ve been injured at work. What benefits am I entitled to under Florida Workers’ Compensation law?
Again, the law in effect on the date of your accident will control exactly what benefits that you are entitled to. There have been major substantive changes to the law in 2003, 1994, 1990 and 1979. Basically, there are two categories of benefits that are available: 1) medical benefits; and 2) compensation (also known as indemnity) benefits.
A. Medical Benefits. Under the law, you are entitled to all reasonable and necessary medical treatment as the nature of the injury and course of recovery require. This covers a very wide array of potential medical care to diagnose and treat your condition (including, but not limited to, doctors visits, hospital stays, prescriptions, assistive devices, diagnostic testing, surgery, physical therapy, mileage reimbursement for transportation to appointments and the pharmacy, nursing and attendant care and any other medical care that is necessary). However, while your employer and their workers’ compensation carrier are responsible for providing medical care, they are not responsible for paying for medical care that they do not authorize (with the exception of emergency care). This means that the insurance company must set up and authorize the physician before you receive the medical care. (You cannot go out and get your own medical care and expect the workers’ compensation carrier to pay for it except in a few very limited circumstances.)
B. Indemnity (money) Benefits. These benefits are money benefits for disability or impairment that are due to you when you are disabled (either totally or partially) or have a permanent impairment. There are several different types depending upon your date of accident.
All indemnity benefits are paid based upon a measure of your pre-injury earning capacity called the Average Weekly Wage (AWW). In general, subject to some exceptions, the AWW is determined by taking a 13 average of all gross earnings that you had during the 13 weeks preceding your date of accident (excluding the week in which the accident occurred). The formula for determining the exact AWW differs depending on your date of accident, but in most cases it will be the gross wages during the 13 week period plus the cost of the Employer’s contribution towards group health insurance benefits and housing (if the employer was providing those benefits, but no longer is).
As your authorized workers’ compensation physician treats your injuries he also will determine whether you should be working in your regular capacity, whether you should be restricted as to certain work activities, or whether you should stop working altogether. The following are some of the types of workers’ compensation benefits that you may be entitled to:
1. Temporary Total Disability (TTD). These benefits are paid if your doctor tells you to stay out of work and you have not reached the point of Maximum Medical Improvement (MMI). MMI is the date after which further recovery from or lasting improvement to your injury can no longer reasonably be anticipated by the doctor. These benefits are paid by the workers’ compensation insurance company every two weeks at the rate of two thirds of your AWW.
2. Temporary Partial Disability (TPD). These benefits are paid when your doctor has restricted you from employment in some way (for example, limits on your ability to lift, stand, bend, stoop, walk, crawl, climb, or use your hands) and you are not able to earn at least 80% of your AWW. Many employers (especially in the construction industry) will not offer any light duty work, but will instead tell you to go home until you are fully recovered. For accidents occurring after 01/01/1994 TPD benefits are determined based upon the following formula: ((AWW x .80) minus light duty earnings x .80 = TPD benefit). TPD benefits are also payable up until the date of MMI.
3. Rehabilitation Temporary Total Disability. If you have reached the point of MMI and your doctor has given you permanent work restrictions that prevent you from performing the job that you held at the time of your accident, you may be eligible to be retrained for a different type of work that is not as strenuous as your prior job. The State of Florida Department of Vocational Rehabilitation (under the Florida Dept. of Education) evaluates injured workers for retraining. If accepted into a retraining program, the workers’ compensation insurance company is required to pay total disability benefits while you attend retraining classes. These Rehab TTD benefits can be payable up to a maximum of 52 weeks (subject to a limit of 104 weeks of temporary disability benefits per claim.)
4. Permanent Impairment Benefits. When you reach MMI, your doctor is required to determine whether you have suffered a permanent impairment under the Florida Uniform Permanent Impairment Schedule. If you have, the doctor will assign a percentage of impairment to the body as a whole. This percentage will entitle you to impairment benefits for a set number of weeks. For each percentage point up to and including ten percent, you receive 2 weeks; for 11 percent to 15, you receive 3 weeks per percentage point; for 16 to 20, you receive 4 weeks per point, and for 21 percent and higher you receive 6 weeks per percentage point. These benefits are paid based upon ½ of your AWW. However, if you’ve returned back to work and are actually earning equal to or more than your AWW, the impairment benefit is reduced to 25% of your AWW.
5. Permanent and Total Disability (PTD). If you are physically incapable of engaging in at least sedentary employment within a 50-mile radius of your residence, you may be entitled to PTD benefits (for accidents occurring after 10/1/03). While permanent and total disability exists, benefits are paid until the age of 75. There is also a 3% supplemental benefit (cost of living increase) which is payable until the age of 62.
9) How long do I have to report an accident or injury?
In general, an employee must report an injury to the employer within 30 days after the date of or manifestation of the injury. There are certain exceptions to this rule, and later reporting may be allowed in certain circumstances. However, it is usually the best policy to report the injury as soon as possible.
10) The Employer/Carrier has denied my case or certain benefits, what do I do now?
You need to speak with an attorney. In Florida, a workers’ compensation lawsuit called a petition for benefits may be filed if an employee has a dispute over benefits or appropriate medical care. Eventually the claim will be heard by a workers’ compensation judge called a “Judge of Compensation Claims”.
11) What is the statute of limitations for a Florida Workers’ Compensation case?
The statute of limitations is the period of time in which a petition for benefits must be filed or all claims and benefits will be barred. In Florida, the statute of limitations is fairly complex and there are exceptions to the general rule. Generally, a petition must be filed within two years of the date of accident. However, if it is beyond the initial two years of the date of accident, a petition may be filed if authorized medical treatment or compensation checks have been provided within the last year. If you are outside of two years of the date of accident and authorized medical care or compensation checks have not been received within one year it is probably too late to file a petition for benefits. However, there are certain exceptions, and you should speak with a lawyer as soon as possible.