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Workers’ Compensation

Have You Been Affected by a Workplace accident?

Workers’ Compensation

Frequently Asked Questions About Workers’ Compensation

Many people aren’t sure what to do after a workplace accident, and may have no idea what steps they should take next. Your best choice is always to contact an experienced workers’ compensation attorney, but here are some answers to the most common questions about workers’ compensation law in Florida.

Under what circumstances would I receive workers’ compensation benefits?

If you suffer an injury because of an accident at work, you may be entitled to workers’ compensation benefits depending on the circumstances. Under Florida law, “the employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and scope of employment.”

The law defines an “accident” as a sudden event that is either unusual or unexpected, and the injury in question must be a physical injury. If something frightening or stressful happens at work but causes no physical injury, then the workers’ compensation law would not apply. In some cases, the law can still apply even if the injury doesn’t happen suddenly, such as incidents involving occupational disease or exposure.

The law would also not apply if the accident did not happen as a result of “work performed in the course and scope of employment.” An employee who suffers an injury while performing their work duties, at the time and place they are supposed to performing those duties, usually will be able to receive workers’ compensation benefits.

In most cases, if you are injured while going to or coming from work, your injury is not considered to have occurred within the course and scope of your employment. However, there is an exception if you were preforming a special errand or mission for your employer.

Finally, the work performed for the employer has to have been the “major contributing cause” of the injury and the need for treatment, as established by medical evidence. This means that the workplace accident must have contributed more significantly to the employee’s resulting injuries than any other single cause or non-work-related condition. It is important to note that even if medical care is rendered to the employee, should evidence come to light that the work related injury is not the major contributing cause of the employee’s injury or need for additional medical care, future benefits may be denied.

An employee may not be entitled to workers’ compensation benefits, including medical treatment and payment for lost wages, if they were intoxicated at the time of their accident. The law presumes that intoxication caused an employee’s accident. However, an employee can overcome the presumption by showing proof that their state of intoxication did not cause their injury.

Does the workers’ compensation law apply to my employer?

The workers’ compensation law applies to most employers, but not all. Any employer that does not carry workers’ compensation insurance when required to can be assessed a penalty of up to $5,000.00 per employee. However, very small employers and companies that use the services of independent contractors rather than employees may be exempt.

According to the definition used under the Florida workers’ compensation law, an employee is “any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed”.

In the state of Florida, the laws on workers’ compensation apply to any employer with at least four employees. It doesn’t matter whether those employees are full-time or part-time, and it doesn’t matter whether they are minors or legal adults. Immigrants also count as employees for purposes of the workers’ compensation law, even if the company is employing them illegally. Independent contractors are not considered employees, so if you are an independent contractor these rules will not apply to you.

Can I receive a settlement from the insurance company?

This does happen in some cases. The insurance carrier may offer to settle your claim with a lump-sum payment if you agree to release them from future liability. Settlements are optional, but the Judge of Compensation Claims will enforce any settlement agreement once it has been approved.

Can I file a lawsuit against my employer for negligence?

Generally speaking, no. As long as your employer carries workers’ compensation insurance and provides benefits as required by Florida law, you cannot sue the employer for negligence because of your injury. The workers’ compensation law is meant to provide compensation for economic losses, including medical bills, lost wages and economic losses that result from a permanent impairment. An employee is not allowed to pursue both a claim for workers’ compensation benefits and a tort claim. However, the employer can lose this immunity in extreme circumstances, such as covering up a known danger or deliberately injuring an employee.

Will I be responsible for any medical bills?

Your employer’s workers’ compensation insurance carrier is responsible for the payment of your medical bills for all medical treatment AUTHORIZED by the insurance carrier. The care you receive must be related to your work accident and it must be medically necessary. Any bills you receive should be forwarded to the insurance carrier. However, once your treating physician determines that you have reached Maximum Medical Improvement, for any accident that occurred after 1/1/1994, you will be expected to pay a $10 co-payment every time you go in for treatment.

Can I be fired for being unable to work because of my injury?

It is against the law for your employer to fire you because you filed a claim under the workers’ compensation law, but if your injury prevents you from returning to work then your employer is not legally required to hold the job open for you until you can return.

Are there any circumstances under which my claim could be denied?

Yes, there are circumstances under which your employer’s insurance carrier might deny your claim. For instance, if the carrier decides that the accident was caused primarily by alcohol or drugs, with the exception of medications prescribed by a doctor, then the claim would be denied. Your employer may require you to submit to a drug and alcohol test after your injury, and if you refuse to do so the insurance carrier can assume that the accident was caused by drugs or alcohol, and deny the claim.

If you refuse to use any safety appliances provided by your employer and are then injured, your workers’ compensation benefits for the injury can be cut by 25%. If the injury occurred during a company recreational or social activity it would not be compensable unless your attendance was required by your employer and the activity provided a benefit to your employer beyond morale-building. If the injury occurred while traveling to or from your place of work, it would not be compensable. This would be true even if you were driving a company vehicle, as long as you had the exclusive use of the vehicle. However, if you were injured while doing an errand for your employer, the injury would be compensable. If the injury occurs as a result of rough housing at work, it would not be compensable unless your employer expressly approved of your activities. If you are incarcerated, you would lose any workers’ compensation benefits unless you have dependents who rely on them. Finally, you cannot receive workers’ compensation for any injury you deliberately cause to yourself, or any injury you suffer while trying to injure a co-worker.

What should I do if my employer doesn’t comply with the requirements of the law?

If your employer is refusing to comply with the workers’ compensation law – for instance, by refusing to fill out an injury report or authorize a physician – your first step should be to inform the Division of Workers’ Compensation. If this doesn’t get any results you should call a workers’ compensation attorney.

When do I need to report an accident to my employer? When does my claim need to be submitted by my employer?

Generally speaking, you need to report the injury within 30 days of your accident or knowledge of the injury. In turn, your employer is required to report your injury to their workers’ compensation insurance company within 7 days.

There are a few exceptions to the 30 day reporting requirement – for instance, if you were only able to determine that the injury was work-related after getting a doctor’s opinion and you informed your employer within 30 days of doing so, your report of the accident will still be considered timely. Also, if the employer already knew about the injury and failed to take action, or if the employer failed to post a notice informing you of the law, you may still be able to file a claim despite not reporting your accident or injury by the 30 day deadline.

Can I pick my doctor?

No. Seeking treatment with a doctor of your own choosing, may result in you having to pay the related medical bills. The doctor you see for your work accident must be authorized and approved by your employer or their insurance carrier. The insurance carrier will have a list of approved doctors within their network and the insurance adjuster or your employer will notify you of the physician you are allowed to treat with. There are some exceptions that apply when an employee seeks emergency medical care. There are also certain limits on the distance you are required to travel for each appointment that the Carrier should abide by.

Will I be paid for lost wages if I miss time from work due to my injury?

Under normal circumstances, you would be compensated from your eighth day of missed work onward, but not for the first seven days. If you end up missing more than 21 days of work because of your injury, you will receive compensation for the first seven days of lost work as well.

Can I receive benefits for workers’ comp and unemployment simultaneously?

You could receive temporary partial disability benefits along with unemployment benefits, but you cannot receive total disability benefits and unemployment benefits for the same week. The reason being is that Unemployment benefits are only available if you are able to work, and total disability benefits are only available if you are not. If you do receive temporary partial disability benefits and unemployment benefits at the same time, the two payments combined cannot be greater than the maximum amount you would have received for temporary partial disability without unemployment compensation.

What can I do if I am never able to return to the same type of work?

Upon referral by the insurance carrier or upon your own request, the Division of Worker’s Compensation may conduct a training and education screening to determine whether you should be referred for vocational counseling and retraining services to help you switch to a different career. These services include an analysis of any transferable skills you may have as well as help with job placement. Such services will only be provided if it is determined that following a “reemployment plan is likely to result in return to suitable gainful employment.” The Bureau of Rehabilitation and Reemployment Services has all the details on these programs.

Tempted by a Workers’ Compensation Settlement Offer?

There are a number of reasons why you might decide to sign a workers’ compensation settlement agreement; perhaps you’re eager to pay the medical bills, you feel as though you’ve healed completely from your injury or illness and simply want to move on, or you just really don’t like the idea of having to go to trial. Regardless of your reason, failing to consult with an attorney before making any final decisions could end up costing you thousands of dollars. It is critical that you fully understand your rights under Florida law, and how signing a settlement agreement affects them.

Types of Workers’ Compensation Settlements in Florida

The key to making an informed decision about whether to settle a workers’ compensation case is in understanding the different types of settlements in Florida, which include the following:

  • Full and final release of liability: this type of settlement involves a stipulation that as the claimant, you agree to surrender your right to any workers’ compensation benefits under Florida law in exchange for the settlement amount offered. This means that you would be barred from seeking workers’ compensation benefits for injuries or illnesses that occurred in the past and have not yet been shown to be work-related (this may be the case with a chronic rather than acute illness or injury, such as exposure to asbestos).
  • Partial release of liability: this type of settlement is relatively uncommon, but may allow you to pursue certain types of workers’ compensation benefits under Florida law while still having your medical bills paid for by the insurance company.
  • Lump-sum settlement: insurance companies often provide settlements in one lump sum of money, making wise financial decision-making and planning crucial.
  • Structured settlement: in most cases that involve catastrophic injuries or permanent, severe disability, the insurance company will offer to pay the settlement amount in installments over the course of months or years. This can simplify the process of financial planning for long-term care, and eliminate the risk of the money being spent too quickly.

Is it Time for You to Settle?

One of the most potentially costly mistakes you can make is to settle a workers’ compensation case before at least one doctor has stated that it is unlikely for you to see any additional improvement in your medical condition. This is often referred to as reaching a point of maximum medical improvement (MMI), which could occur when a person has recovered fully, or while they still suffer from their injury but will not improve despite further medical or therapeutic intervention. If you choose to settle before reaching MMI, you run the risk of having no way to pay for unanticipated complications associated with your injury or illness, such as a necessary surgery. Additionally, prior to reaching MMI, it may be uncertain whether you will regain the function necessary to return to the same line of work, and thus retain the same level of earning potential.

Discussing these considerations with your workers’ compensation attorney is important. Together, you can decide whether it is a wise time to settle the case, or if a bit more patience might pay off in the long run. In fact, under Florida law, an individual cannot agree to a full-and-final lump sum settlement in the absence of an attorney unless at least one of the following are true:

  • The workers’ compensation claim was denied by the insurance company, and a judge has determined that a disagreement exists which is sufficient to question eligibility for benefits
  • A medical doctor has stated that the claimant has reached MMI

How Much is Your Case Worth?

No two workers’ compensation cases are exactly alike. Whether a case leads to a large or small settlement will depend on a number of factors, including the following:

  • The seriousness of the injuries or illness
  • To what degree the injuries or illness is permanent
  • The cost of medical bills associated with the injury or illness
  • The cost of future medical treatment or long-term care
  • Whether or not the injured party loses earning potential as a result of their injury
  • The presence of conflicting evidence in the case
  • The negotiating power and reputation of the claimant’s attorney

What’s the Process of Finalizing a Workers’ Compensation Case in Florida?

If you’re ready to settle your workers’ compensation case and make it a matter of the past, the way in which you’ll proceed will depend entirely upon whether or not you have an attorney, and what type of settlement you are agreeing to.

If you do not have an attorney and are trying to finalize a full-and-final lump sum settlement, then the settlement agreement and all evidence associated with the case will be reviewed by a workers’ compensation judge. A washout hearing will be set, during which the judge who reviewed your case will confirm that you understand the legal ramifications of signing the agreement and finalizing the case. If you settled after reaching MMI, then the judge will determine whether the settlement amount is less than, equal to, or greater than the benefits you would receive under Florida’s workers’ compensation laws.

If you do have an attorney, then you probably won’t be required to appear at a settlement hearing. In lieu of that hearing, your attorney will lead you in a thorough review of the settlement agreement and a list of the expenses which will be deducted from the total settlement amount. While a judge will still be required to approve the attorney’s fees, the judge will not conduct their own review of your case if an attorney has already reviewed it. As soon as you sign the paperwork, your workers’ compensation case will be considered finalized.

Is a Workers’ Compensation Attorney Something You Can Afford?

Unfortunately, many people disregard the idea of hiring an attorney because they believe they can’t afford one. However, workers’ compensation attorneys in Florida only get paid if you do, meaning unless you receive an award, you won’t have to pay anything to your attorney. In addition, attorney’s fees are generally limited to a certain amount and must be approved by a judge. The specific rules for determining which part of the settlement will pay out the percentage of attorney’s fees vary from state to state. For example, the attorney’s fees might be deducted from the total settlement amount. A fee may also be taken from the carrier if a benefit is obtained that was previously denied or as provided by the retainer agreement you signed with your attorney. In all cases, all attorney’s fees in workers’ compensation cases must be approved by a judge. Upon receipt of the settlement award, the attorney will also be entitled to any expenses they covered during the course of the case, such as the cost of hiring expert witnesses.

How Will the Medical Bills Be Covered?

If your claim was initially denied by the insurance company, appealing that denial could end up paying off. How so? If a judge rules in your favor on a workers’ compensation claim that was previously denied, they might also order the insurance company to pay the medical bills for any treatment rendered that was medically necessary and related to your workers’ compensation accident. If at the time of the appeal you had already paid out of pocket for the medical expenses, then you would receive compensation for those expenses.

In cases where the insurance carrier has deemed your accident compensable, the medical bills will likely be paid by the insurance company directly. However, in cases where the medical treatment rendered was initially denied and later accepted as compensable, the insurance company may provide a lump sum of money, from which you would be responsible for paying the medical bills. If that is the case, you may be able to negotiate a reduction of these medical bills. Exploring this option is best done with the expertise and advice of an attorney.

Workers’ Compensation Medicare Set-Aside Arrangements

If Medicare covered your medical bills while your workers’ compensation case was in dispute or in appeals proceedings, then you may need to reimburse Medicare for those payments upon receiving your settlement.

If you are expected to require future medical treatment or procedures related to your injury or illness, then there will likely be what’s called a Medicare set-aside financial agreement. While this agreement works to protect the financial interests of the government and requires a portion of your settlement to be placed in a Medicare set-aside account (MSA) for future medical expenses, it can benefit you greatly. If Medicare approves the amount in your MSA, then it will cover all your medical needs once the MSA funds have been exhausted. You will be required to take Medicare’s interest into consideration if you fall within one of the following categories:

  1. You are a Medicare beneficiary and have a settlement that is more than $25,000.00.
  2. You will likely be eligible for Medicare benefits within 30 months of the settlement date, and your settlement is expected to be more than $250,000.00.

Creating an MSA

If you fail to create an MSA, then Medicare will be free to presume that the entirety of your settlement is for future medical costs; as a result, you might have to exhaust all of your settlement money before Medicare agrees to cover your medical costs. For this reason, it is critical to hire an attorney who can help you set up a proper MSA. In addition to ensuring that MSA funds are placed in an interest-bearing account, a workers’ compensation attorney will ensure that you know how to manage it properly.

Social Security Disability Income

In many cases, workers’ compensation claims are settled prior to even going to trial. As a result, Social Security has taken the practice of offsetting Social Security Disability Income (SSDI) benefits to account for a lump sum settlement. If you are worried about being in a situation in which your SSDI benefits are reduced by Social Security, because you have received a workers’ compensation settlement award, you should consult a workers’ compensation attorney. The attorney will help you resolve your workers’ compensation case in a way that minimizes the reduction to your SSDI benefits.

Attorney Robert Fenstersheib

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