Florida Workers Compensation Lawyers Blog

Claimant's Malingering Behavior in the IME Exam Causes Denial of Benefits

Tue, 17 Apr 2012 11:04:12 -0500

In the case of Lucas v. ADT Security Inc./Sedgwick CMS, 34 Fla. Law. Wkly. D. 2284, decided October 17, 2011, the Court ruled that the claimant's behavior before the Independent Medical Examiner (IME) can be grounds to dismiss the case. In this 2006 workers' compensation accident, the claimant had attended an IME before Dr. Rogozinski. The doctor testified that the claimant was theatrical in the examination and only appeared to be in horrific pain when she was in the doctor's room and not when she was in the waiting room. The doctor testified that she was malingering and that her physical examination was normal and her statements of pain did not correlate to her findings on a physical examination.

Florida Statutes, Section 440.105(4)(b)(2006), states that "It shall be unlawful for any person ... to knowingly make any false, fraudulent or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter." Here, the Judge of Compensation Claims found that the claimant's intentionally or knowingly making numerous false and misleading statements with regard to the extent of her injuries for the purpose of obtaining workers' compensation benefits was sufficient grounds to deny all benefits to the claimant. The injured worker needs to be counseled by an attorney to avoid these pitfalls.

A Release of the Employer Signed Concurrent with the Worker's Compensation Settlement Is Void as to Releasing Unemployment and/or the Right to Overtime Pay and Unpaid Wages

Tue, 13 Mar 2012 14:24:19 -0500

Florida Statutes, Section 443.041 states that a waiver of unemployment rights is void. It states any agreement by an individual to waive, release, or commute her or his rights to benefits under the unemployment compensation statute is void. An employer may not directly or indirectly make or require or accept any waiver of any right under the unemployment compensation chapter, and an employer who violates this is guilty of a misdemeanor.

With respect to overtime pay, which is governed by the federal law, the case of Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982), states that the release of the employee's right to make a claim for over time pay and/or underpaid wages, which an employer has an employee sign, is void in a lawsuit for those unpaid wages and/or overtime wages.

Please contact Attorney Jo Ann Hoffman if you need more specifics on that case. The rationale behind the case is that overtime pay and unpaid wages are governed by the federal government and the federal government must approve any settlement of overtime pay and/or unpaid wages.

An Employee Should Request a One-Time Change of Doctor in a Worker's Compensation Case BEFORE the Authorized Treating Doctor Says the Condition is Not Work-Related

Thu, 08 Mar 2012 10:48:50 -0500

In the case of Falcon Farms v. Espinoza,37 FLWD 489 (1st DCA 2012) decided February 23, 2012, the First District Court of Appeals in Florida made a ruling that can affect injured workers in a negative way. This is on a case that came out of Miami and was decided by Judge Charles M. Hill, III. In this case, the injured worker felt that on December 20, 2009 she developed a bump on her finger from using a hand-held "gun" to put dates on flower bouquets for her employer. The employer sent her to an authorized work comp doctor, but that work comp doctor ruled that her condition was not occupational, i.e., that the bump on her finger was not related to her work.

The Judge ruled that the claimant's case was not compensable, but granted a change of physician. The Appellate Court held that because the judge ruled that the accident was not compensable, the employee was not entitled to a one-time change of physician. This is because Florida Statutes, Section 440.134(10)(c)(2009), provides that a one-time change applies to "work-related injuries." In this case, the claimant had presented no "persuasive medical evidence" that an injury rose out of employment and therefore, based on that, the Judge erred in awarding a change in physician.

This case has a negative impact on the ability of an injured worker to change doctors once the initial authorized doctor states that the injury is not compensable.

Penalties and Interest on Temporary Partial Disability Benefits

Mon, 30 Jan 2012 15:02:55 -0500

In the case of Rucker v. Just Brakes and The Hartford, 36 FLWD 2663, decided December 2, 2011, the Appellate Court held that the judge could not deny penalties and interest on the Temporary Partial Disability where the Employer/Carrier had never raised that as a defense

The Judge found the Claimant had not filed the Employee Earnings Reports, also called DWC-19 forms, and thus was not entitled to the benefits until the Claimant filed the forms. The Appellate Court held that the Judge violated the Claimant's due process rights by considering a defense not raised by the Employer/Carrier. The Judge erred in denying the penalties and interest pursuant to the previously decided case of Republic Waste Services, Inc. v. Ricardo, 68 So. 3d 934, 936 (Fla 1st DCA 2011). That case held that once the Claimant shows he is entitled to Temporary Partial Disability benefits and shows he was not paid these benefits within seven (7) days of the date they became due, the Claimant has made a prima facie case for penalties and interest pursuant to Fla. Stat. Annotated §440.20 (6)(a)(2009).

In the case of Matrix Employee Leasing, Inc. v. Hadley, 36 FLWD 2525, the Court held that if an injured worker is on no work at the time 104 weeks runs, he is not automatically entitled to Permanent Total Disability. Once the 104 weeks ran, the Employer/Carrier began paying Claimant impairment benefits even though he was on a no work status. The Claimant sought Permanent Total Disability because he was at MMI on a no work status. The Employer/Carrier denied the claim because the workers' compensation law does not authorize the payment of pre-MMI, temporary Permanent Total Disability benefits. The judge awarded temporary Permanent Total Disability benefits so that the Claimant could receive full compensation. However, the Appellate Court ruled that the Claimant should have been denied Permanent Total Disability benefits because the claimant must prove that at the time he reaches maximum medical improvement he will still be medically totally disabled or unable to work. The Appellate Court receded from its decision in the case of City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla 1st DCA 1998). The Appellate Court held that the test of whether a Claimant is totally disabled upon the expiration of temporary benefit eligibility, that being the 104 weeks, is whether the Claimant will remain totally disabled at the date of anticipated MMI, and only then is he permanently and totally disabled

Employee Earnings Reports Must Be Fully Completed

Thu, 19 Jan 2012 15:28:53 -0500

In the case of Glinski v. Pan American Bank, 36 Fla. Law Wkly. 2709, decided December 9, 2011, the Employer/Carrier is authorized to stop Claimant's checks when the Claimant does not complete each box in five sections of the Employee Earnings Report Form. When the injured worker fills out the Employee Earnings Report, he or she must mark five boxes on the form before the employee signs and dates and returns the form, otherwise it is neither valid nor acceptable. The Employer/Carrier does not have to pay anything if the Employee Earnings Report Form (DWC-19) is not signed with five boxes checked. It is a good idea for your attorney to look over the form to make sure it has been completed correctly. This is the form:

Florida Administrative Code Rule 69L-3.021(2) requires an employee to return a completed Earnings Report Form within twenty-one days after receipt from the Employer/Carrier. Therefore, the Claimant will lose his or her benefits if he or she does not complete the Employee Earnings Report Form correctly. Sections (3) and (4) of the Code state:

(3) If the employee refuses to report information requested in accordance with subsection (1) or (2) above within 21 days after receipt of the request, payments of workers' compensation disability benefits for temporary total, temporary partial, permanent total or permanent total supplemental compensation shall cease until such time as the employee furnishes the signed form.

(4) For dates of accident on or after October 1, 2003, upon the request of the claims-handling entity, any employee eligible for impairment income benefits shall complete, sign, and return Form DFS-F2-DWC-19 within 21 days after receiving it to report all earnings. The claims-handling entity may require the employee to send Form DFS-F2-DWC-19 no more than once a month. If the employee refuses to report earnings within 21 days after receipt of the request, payments of workers' compensation disability benefits for impairment income benefits shall cease until such time as the employee furnishes the signed form.

Injured Workers Can Choose Their Primary Care Provider

Tue, 19 Jul 2011 10:30:05 -0500

In a very important case, the First District Court of Appeals ruled that an injured worker has the right to choose a primary care provider while still retaining the right to request one change of doctor during the course of treatment. That case is Theiss v. City of Panama City Beach, 36 Fla.L.Weekly D1423, decided June 30, 2011. An attorney for an injured worker understands the importance of this case. The fact of the matter is that insurance companies are using managed care on virtually all cases but they are not telling the claimant or the claimant's attorneys that they are using a managed care program. Therefore, the Theiss case gives the claimant the right to control the medical. This is true because, for instance, if your insurance carrier is Chartis and/or AIG, you can go to their website, which is www.talispoint.com/aig/com/, and search the Point Of Entry doctors -- abbreviated as POE under Directories -- and then put the cursor on POE and then you will see a directory pop up for Florida, pull that up, and you will have all the primary care doctors in Florida by county. Even though you were never told that yours is a managed care case, I think you will find out when you ask the insurance company, that they will acknowledge that they are paying the doctors under the managed care program which means you have the right to choose your doctor.

Workers Compensation Release Does Not Bar The Right Of An Employee To Claim Unpaid Wages And Unpaid Overtime

Thu, 14 Jul 2011 12:23:13 -0500

Often in a workers compensation case, the Employer has the Employee sign a General Release stating that they will not sue the Employer for any reason whatsoever. What is interesting is that even though the Release may state that the Employee gives up his right to make a claim for unpaid wages, that Release will not prevent the Employee from suing for and recovering unpaid wages. This is true because the Fair Labor Standards Act (FLSA) was enacted for the purpose of protecting workers from substandard wages and excessive working hours. In the case of Lynn's Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir. 1982), the Court stated, "There are only two ways in which back wage claims arising under the FLSA can be settled or compromised by employees. First, under Section 216(c), the Secretary of Labor is authorized to supervise payment to employees of unpaid wages owed to them. ... The only other route for compromise of FLSA claims is provided in the context of suits brought directly by employees against their employer under Section 216(b) to recover back wages for FLSA violations."

Because the District Court must supervise these settlements for fairness, a Release entered into outside the District Court's jurisdiction is not binding.

This doctrine was ratified in the case of Silva v. Grant Miller, et al., 547 F. Supp. 2d 1299 - Dist. Court, SD Florida 2008. In Silva, even where the parties seek to enter into an agreement which provides for a gross amount with the attorney to take his 40% fee from that, that agreement is not binding, as the Statute contemplates that "the wronged employee should receive the full amount of his wages and penalty without incurring any expense for the legal fees or costs." So an employee owed wages must find an attorney for unpaid wages.

Florida Workers Compensation Cases Where The Accident Occurs Out Of State

Thu, 14 Jul 2011 11:44:43 -0500

People from Florida who enter into a contract in Florida but have to work out of state are still covered by Florida Workers Compensation Law. That means you could be sent to the Bahamas to do work but if you entered into your contract of employment in Florida you are covered by the Florida Workers Compensation Law. The same thing applies with respect to individuals from other states who are sent to Florida for their employment. That person will be covered by Florida Workers Compensation per statute.

Florida Statutes, Section 440.09(1)(d) states: "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."

In addition, if your out of state injury was caused by the fault of someone else, you can make a claim against that person provided he or she was not a co-employee engaged in the same work.

Discussion Of Helpful Workers' Compensation Websites

Thu, 30 Jun 2011 16:33:04 -0500

I was at a mediation recently with my iPad and I was trying to pull up the website which lists claims filed for worker's compensation benefits with the Judge of Compensation Claims. A person can view a past case at that website. I was having difficulty finding it through the search engines. That led me to post this blog with links to the sites that have helpful information.

Be aware that claim information for injured workers is available online at a website called by different names, such as DOAH Office of the Judges of Compensation Claims OJCC worker's compensation claims Judge's compensation claims and the link to this for Florida cases is: http://www.jcc.state.fl.us/jcc/. When you get there click on search cases on the left hand side about half way down and enter the first and last name you are trying to find. The database covers about the last ten years.

The State of Florida also has a site that gives you information on how a worker's compensation claim should proceed. That site is http://www.myfloridacfo.com/wc/claimflow.html. From that site, you can access forms, frequently asked questions, and more.

Need to find the worker's compensation insurance coverage applicable to your employer? Please click on this site: http://www.myfloridacfo.com/wc/. When you are there, click on the "Proof of Coverage Exemptions Database" icon in the middle of the page, and it will tell you which carriers insure which employers.

Would you like to search the Judge's website to find out how your Florida workers compensation case is proceeding? Just go to http://www.jcc.state.fl.us/jcc/searchjcc/ and simply type in your first name and your last name and then click the "Search" button. You can visit this website to see how your case is proceeding, what claims have been filed, and what attorney's fees have been entered by the judge. This will also tell you when the final order has been entered approving your settlement. This can help you keep track of how your attorney is processing your claim.

Permanent Total Disability Benefits For Undocumented Workers

Thu, 30 Jun 2011 16:25:58 -0500

There is a new case that was decided by the Florida First DCA on June 28, 2011 called HDV Construction Systems v. Aragon. It is important because it explains that the when a Judge awards Permanent Total Disability it is a benefit that flows into the future; thus, the Court awards Permanent Total Disability into the future where the claimant prevails on his permanent total disability claim.

Where an employer employs an illegal immigrant, alien or undocumented worker, it is helpful for the attorney to depose the employer to establish that it was not important to the employer that the claimant was without the legal right to work in the United States. Once that occurs, the Employer/Carrier cannot utilize the claimant's illegal status to defeat a claim for Permanent Total Disability. Your attorney should rely on the case of Cenvill Development Corp. v. Candelo, 478 So.2d 1168 (Fla. 1st DCA 1985) as support for the permanent total disability claim. Where the Employer knew or should have known of Claimant's illegal status prior to the injury, but continued his employment nonetheless, the Employer/Carrier is precluded from using Claimant's illegal status as a bar to the disability claim.

The injured undocumented worker performing unsafe and difficult work in Florida is protected by worker's compensation law. Florida Statute Section 440.02(15)(a) defines an employee to include alien, whether "lawfully or unlawfully employed." This means that undocumented workers who are injured while hard at work performing, for instance, roofing or other dangerous occupations can expect to obtain appropriate benefits where their employer routinely utilizes undocumented workers.

More Difficulty For Those Making Injury Claims Due To Mold

Mon, 27 Jun 2011 15:48:42 -0500

In a case that makes it more difficult to recover workers' compensation due to mold exposure, the First District Court of Appeals held that the claimant has to establish the level of mold to which the claimant was exposed. In Altman Contractors v. Gibson, 36 Fla. L. Weekly D909, 1st DCA 2011, the court held that Florida Statute Section 440.02(1) required the claimant to establish the level of mold to which the claimant was exposed in the workplace.

This means that the attorney or injured person should send a letter to the employer saying, "Please save the area of mold or mildew causing my breathing/allergic condition or allow me to take a mold measurement before you alter the area." No determination has been made by the court as to what would occur where the mold had been remedied and the employer had not saved the mold for measurement as requested in writing by the employee. Therefore it should be argued that if the employer destroyed mold evidence in disregard of the employee's written request, then this would preclude the applicability of Section 440.02(1) and allow the claim for medical benefits for mold exposure. This is under the same theory as the spoliation of evidence and will require a court ruling for further clarification

No Statute Of Limitations For Prosthetic Devices

Thu, 09 Jun 2011 15:09:05 -0500

In Florida worker's compensation cases, there is no statute of limitations related to medical care for a prosthetic device, which is a medical device inserted into a person to replace or augment a missing limb or body part. This is true provided the use of the prosthetic device is continuous and the Employer/Carrier is aware of its use. The claimant by his worker's compensation attorney has the burden of making this showing.

This law was applied to an injury occurring in 2002 per the First District Court of Appeal in the case of Gore vs. Lee County School Bd., 43 So.3d 846 (Fla. 1st DCA 2010). The Court noted that for accidents occurring prior to 1994, there is no statute of limitations applicable to remedial treatment related to prosthetic devices, as Florida Statutes, Section 440.19 (1)(b)(1993) provided: "No statute of limitations shall apply to the right for remedial attention related to the insertion or attachment of a prosthetic device to any part of the body."

The right of an injured worker hurt in Florida AFTER 1993 to continue to receive medical care for the area where the prosthetic device was utilized or implanted continues based on the Gore case. Although, the legislature removed the statutory provision exempting prostheses from the statute of limitations, that removal did not change the relevant case law which holds that a claimant's continuing use of a medical device or apparatus that is known by the Employer/Carrier tolls the statute of limitations. The Gore case stands for the proposition that so long as a claimant can establish that an employer or carrier has actual knowledge of his or her continued use of the medical apparatus prescribed by the authorized doctor, the statute of limitations is tolled during the period of such use and the claimant can then make a claim for benefits for additional medical care through his workers compensation attorney.

Worker's Compensation Attorneys' Fees Are Limited By Court

Fri, 06 May 2011 15:43:01 -0500

In the case of Kauffman v. Community Inclusions, 36 F.L.W. D623 (March 23, 2011), the First District Court of Appeals significantly limited an attorney's ability to litigate to obtain benefits for an injured worker. In the Kauffman case, the attorney had obtained for the injured worker benefits in the amount of $3,417.03.
The Employer/Carrier strongly contested these benefits, causing the attorney to spend many hours in litigation including attending a final hearing, a fee hearing and an appeal. The First District Court of Appeals agreed that a reasonable attorney's fee was in the amount of $25,075.00, but because the FSA 440.34 limited fees to 25% of the first $5,000.00 of benefits obtained meant the Court could only award the injured worker's attorney a fee of $684.41. This change affects all accidents occurring after July 1, 2009 and puts a chilling effect on the ability of the injured worker to fight for medical care and checks from the insurance company.

What does this mean to the injured worker? If the attorney's hands are tied by the statute such that they will not be able to fight the insurance company when the claimant needs benefits, then those benefits may be unobtainable.

Are you being cheated at work? (Part One).

Mon, 25 Apr 2011 01:01:53 -0500

A number of people already know that if you work over forty hours a week, you are entitled to overtime. Unfortunately, there are a number of employers who know this, but ignore it. They owe you overtime pay and try to save money by pocketing money that is yours. They use a lot of tricks and intimidation to get away with cheating and underpaying employees. The 40 hour rule is all too often ignored. Now, most employers are conscientious and pay their employees properly, but there are some that will purposefully underpay you. Sometimes they inadvertently underpay, but it is usually intentional.

Whether you are being underpaid by accident or on purpose makes no difference. You are still entitled to your money! You need an overtime lawyer to help you collect the monies that are owed to you. You can go back two years from the time you file your lawsuit to collect the monies that are owed to you. You may be curious how much you are going to pay for attorneys' fees. The answer is quite simple. You pay nothing. There are no attorney fees due from you! The employer who cheated you for weeks, months, or years gets to pay your attorney. This acts as a penalty against the employer who violated State and Federal Law.

There are a lot of ways that employers underpay employees. Just because you are on a salary does not mean that you are not entitled to overtime. Just because you are called a "manager" or "assistant manager" also does not mean that you are not entitled to overtime. You need to talk to a wage and hour lawyer. Because there is a two year statute of limitations in Florida on these cases, you should call and act quickly.

There are a great deal of tricks and schemes that unscrupulous employers use to cheat their employees. Paying in cash for work or paying in cash for work over forty hours (40 hours) is against Federal Law. The Federal Fair Labor Standards Act (also known as the F.L.S.A. or FLSA) has powerful remedies to protect you and you will need an attorney (at no charge) to help you recoup your hard earned monies.

Prepare for a potential problem. Talking to the doctors!

Sun, 17 Apr 2011 06:49:47 -0500

The Florida Workers' Compensation system has three main parties. There is your employer, the insurance company, and you (the injured worker). Unfortunately, the system is written to more protect the insurance company and the employer, rather than you, the claimant! Another group that you will be dealing with if you have an injury on the job are the doctors. Most of the doctors you will encounter in a workers' compensation case are very well trained and do a fine job in helping you recover from your injuries. Others, unfortunately, are more concerned about not irritating the adjuster. They know that the insurance company and their adjusters can send a lot of medical cases (business) their way.

Even the compassionate and pro-patient doctors, however, have to report their findings back to the adjuster. Therefore, whether you have a pro-patient doctor or a pro-insurance company doctor, you must be very careful what information you give the doctor. Florida workers' compensation laws require the doctor to not only send a bill to the insurance carrier, but also a DWC-25 form (written hand-out), and typed reports. The adjuster's job is to see if they can legally deny the claim. Please see our earlier articles on insurance companies and their adjusters.

You must be very truthful in talking to the doctors about your injuries and your medical history. The doctor will very likely ask you about prior accidents or injuries. You had better tell the physician about your prior injuries and accidents, because if you do not, the doctor will report back to the adjuster that you are denying prior matters, and the adjuster will probably run a computer records search on you. They have access to proprietary databases that the public can not get and they can tell if you went to an emergency room (ER) 15+ years ago or even had a fender bender 20 years ago. If they find that you failed to disclose to the doctor information about a prior accident, the adjuster can deny your claim on the basis of fraud. Precise details about how to best handle this and related issues can be best addressed by consulting with an experienced workers' compensation attorney. Workers compensation lawyers deal with this type of problem frequently and can provide simple strategies on how to avoid such problems or resolve them if they have already occurred.

Most people honestly do not remember everything that has happened to them over the years. Most people would not intend to lie to the doctor or to the adjuster, but failure to completely answer some of the medical history questions can create serious problems leading to denial of the case, denial of compensability, and even prosecution for insurance fraud.