Workers' Compensation Law Archives - Page 2 of 17 - The Law Offices of Charles H Leo, PA

January 2, 2024

Navigating Florida’s Workers’ Compensation: Rights and Limitations

Workers’ compensation in Florida is a legally required system of benefits that are available to most employees who are injured on the job. It is a no-fault system, meaning that for the most part negligence in the cause of an accident is a non-issue. You can be totally at fault or negligent in causing an accident, and this does not disqualify you from receiving benefits. Conversely your employer or coworker can be negligent in causing the accident, and this does not entitle you to additional benefits.

Sword and Shield

An example illustrates the “sword and shield” aspect of workers’ compensation. Let’s say Leroy is a careless worker. As Leroy falls down fracturing his knee cap. His boss comes to his aid, and sees that Leroy as usual was carrying way too much to be safe and his shoelaces were untied.

If the facts change slightly, Leroy trips on the broken stairs that his boss knew about, but didn’t even bother to warn him about. Leroy cannot sue his boss or Employer for negligence as a result of his manager’s careless actions. Careless Leroy has the same rights as an injured worker as careful Leroy does. That may seem unfair, but that is a consequence of fault of negligence being a non-issue in workers’ compensation.

So what benefits do you get when you’re injured on the job?

There are basically two classes of benefits. These benefits are known as indemnity benefits and medical benefits. Indemnity benefits is money that is paid to the injured worker as a result of missing time from work because of the accident. Medical benefits are the care provided to you in the way of emergency treatment, follow up doctor visits, medical testing, physical therapy, prescriptions, etc. Those are the only two types of benefits you get under workers’ compensation – lost wages and medical. Not included within the workers’ compensation benefit system is money for pain and suffering, loss of enjoyment of life, mental anguish or emotional anguish. If you can’t run, or jump, or walk like you used to there is no compensation for that. If you can’t pick your child up anymore because of your back injury, again there is no payment for that. If your marriage falls apart, your car is repossessed and you’re evicted from your apartment, you receive no compensation for these damages. Medical care and lost wages to a certain extent – that’s all. Everything else are losses that the system will not compensate you for.

So let’s say you qualify as an employee under the workers’ comp system, does that mean that you’re entitled to benefits if you suffer an injury or have an accident at work? Like many legal questions, the answer is that it depends. First, the accident or injury has to “arise out of” and be “in the course and scope” of employment. Arising out of work basically means that some aspect of the work caused the accident.

“In the course and scope of employment” is also required for an accident to be covered under workers’ comp. To be in the course of employment, you actually have to be at work. If you have a car accident either on your way to work or on your way home, most times those accidents are not going to be considered work related accidents.

Lost Wages

If you’ve cleared the hurdles of being an employee that’s injured in the course and scope of your job by an accident that arose out of work, what do you get? To be entitled to lost wages, you have to miss a certain amount of work and the disability has to last a certain period of time. If you miss less than a week from work, you’re not going to receive lost wages. Also if you have an injury that heals within three weeks, you’re not entitled to temporary benefits. If you do suffer an injury that keeps you out of work for an extended period of time, then you will receive compensation. However, this compensation is not your full salary. Rather you receive approximately two thirds of what you were making at the time of the accident. If the doctor says no work at all, then you get 66.67% of what you were making at the time of the accident. If the doctor says you can work with restrictions AND the Employer is unable to accommodate those restrictions, you will receive 64% of your salary. But if your Employer is able to accommodate those restrictions and you are making 80% of your pre-injury wages, you receive no compensation. So bottom line is that if you are missing work because of a work related accident, you will lose wages. The longer your disability, the more wages you can lose. Unless you settle your case at some point, those lost wages are gone for good and will not be recovered.

A further restriction on your ability to receive lost wages is that those benefits are only paid for a certain period of time. Once you have achieved maximum medical improvement, which is the doctors way of saying you’re as good as you’re going to get, you don’t get any more temporary benefits. Even if you have not returned to work or your job is no longer available, your temporary benefits end. If you receive an impairment rating due to a permanent injury, you will receive permanent impairment benefits, but those benefits are less than the temporary and they are very short lived. They usually just last a matter of a few weeks or months. Only very few injured workers, the most severely injured, have a chance of receiving long term permanent benefits called permanent total disability.

Medical Care

When it comes to medical care, your rights or benefits also have significant limitations. If you have an injury that requires emergency care, then you can get that care without first getting Employer or workers’ comp carrier approval. After that initial medical care, who you see for medical treatment is not your choice. Your Employer or more often its workers comp insurance carrier will tell you who you can treat with. If you don’t like the doctor they select, then you can get a one time change but that’s it. Moreover, you don’t get to select that next doctor either. Again the workers comp insurance carrier picks the doctor. You can get what is called an IME, or “independent medical doctor”, but you have to pay for that doctor out of pocket. Your health insurance won’t cover it.

If you find yourself in the workers comp system, you’re better off getting advice and possibly legal representation sooner rather than later. Mistakes made in the workers’ comp system can be difficult if not impossible to unwind. And certain mistakes can mean the end of your case entirely. So if you have a workers’ comp accident, contact us immediately. The advice is free, and you are under no obligation to hire us. If you do hire us, you won’t be out of pocket for any fees or costs. We only get paid when we get benefits for you!

November 30, 2023

Can You Work While on Workers Compensation?

You can generally work while on workers’ compensation as long as you are not placed on a no work status by your authorized treating doctor. Specifically, if you are placed on a no-work status by your authorized treating doctor and receive lost wage checks from workers’ comp, you cannot work. If you are on a no-work status and receiving lost wage checks, you must certify under penalty of perjury that you are not working or receiving earnings/income during those time periods.

Doctor might not take you out of work entirely

In many situations, your authorized doctor will not take you out of work entirely, but instead believes that you can work with certain restrictions, modifications, or limitations. These are often simply called “work restrictions”. If your doctor places you on some type of work restrictions (such as no lifting more than 20 pounds or no climbing of ladders) and your employer has work available within those work restrictions, you are not entitled to checks from workers’ compensation unless you earn less than 80% of your pre-accident earnings (based on your average earnings over the 13 weeks just before your accident). If you are working with restrictions and dip under that 80% figure, you will be entitled to some lost wage checks from workers’ compensation as long as you aren’t refusing employment offered within your limitations.

At each and every appointment with an authorized doctor, your physician will complete a 2 page document, sometimes called a “DWC-25”. The DWC-25 will contain the opinions and recommendations of your treating doctor including your current work restrictions. The physician sends a copy of this information to the insurance company (and sometimes your employer). You will want to ensure that you also receive a copy of the DWC-25 following each appointment for multiple reasons.

Get copies of recommendations

First, if your doctor makes recommendations for future testing (such as a nerve test or an MRI) or recommends medical treatment (such as an injection, physical therapy or even surgery), you will want a copy of the actually written recommendation in the event that the insurance carrier does not agree to provide it in a timely manner. In order for you or your attorney to file a claim for any medical testing or treatment recommended by your treating doctor, you must have written documentation from the doctor making the recommendation. The quickest and easiest way to obtain this information is from the completed DWC-25 that can be obtained at each visit. While your attorney can request this documentation from your treating doctor on your behalf, this can often result in delays while waiting for the requested documents. You, as the patient, can usually obtain a copy of the DWC-25 and/or other written documentation regarding the specific medical care or testing being sought at the actual visit.

You will also want a copy of the DWC-25 in order to know the specific work restrictions assigned by the authorized doctor. This way, you will always know your current work restrictions/limitations to ensure that you are not doing anything outside of your restrictions, whether at work or otherwise. After each doctor’s visit, you should let your employer know your current work restrictions. If your employer claims to have work to offer you within your work restrictions, you should return to work and attempt to perform the job provided. Bring a copy of the DWC-25 (or some other documentation establishing your work restrictions) with you to work. If your employer attempts to force you to do more than what your current limitations allow, you should refuse to perform any such work and provide your employer with a copy of your current work limitations contained on the DWC-25.

Additional Lost Wages

As indicated above, if your employer offers you work but you are not earning at least 80% of your pre-accident earnings (based on the average earnings for the 13 weeks before your industrial accident), you may be entitled to some additional lost wage benefits from work comp. You will typically be asked to complete Employee Earning Reports (also called “DWC-19s”) to document any earnings or income during that particular time period. For each time period, if you earned less than 80% of your pre-accident earnings, you are entitled to some lost wage checks as long as you aren’t refusing employment. Otherwise, the insurance company would likely refuse to pay you and claim that you are “voluntarily limiting your own income”.

There are some situations where you may disagree with your treating doctor regarding your work restrictions (or other recommendations/opinions). Unfortunately, your authorized doctor is the only opinion that matters. Therefore, simply refusing to show up when the employer claims to have work available is not beneficial to your case. Your employer should ensure that the job offered is truly within your restrictions. If they decide to send you home because they cannot accommodate your limitations, you would be entitled to lost wage checks. Please understand this is very different from simply refusing work and not showing up. In those situations, it will be extremely difficult to convince the judge later that you did not limit your own income by failing to report for a job within your work restrictions.

Don’t jeopardize your employment

Refusing to return to work within the restrictions assigned by your doctor can preclude you from receiving lost wage checks, but it could also jeopardize your employment with your company. If work is offered and you refuse, you may end up being fired for job abandonment or they may simply fill your position with someone else. If you are truly unable to do the job offered even if it is within the work restrictions assigned by your doctor, you may want to consider using your one-time change in treating doctors to see if a new doctor has different opinions. Because you are only entitled to one change of one doctor one time over the entire life of your claim AND you typically do not get to choose your change of doctors, you should strongly consider consulting with a lawyer before using your change of doctors.

Many injured workers feel they were treated poorly or unfairly by their employer or their insurance company after they suffer an accident or injury. And, many injured workers are concerned they may lose their job once they get injured for reasons unrelated to their accident. Other injured workers are worried they may not be able to return to their former employment due to their injuries. Please understand there is no requirement to continue working for the same employer once you suffer an on the job accident or injury. You are entitled to authorize medical care whether you continue working for the same employer or not. However, if you are receiving lost wage benefits, starting a new job could affect your checks. Therefore, you should consult with a lawyer before starting a new job to see how it affects your lost wage checks.

November 2, 2023

Can You be Fired for Being Injured on the Job?

Florida law is clear that an injured worker cannot be fired for being injured on the job. Section 440.205, Florida Statutes states, “No employee shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.”

If you are fired following a workers’ compensation claim, you should immediately consult with an attorney, especially if you believe you were fired for no cause or specifically related to your on the job accident/injury.

It is often difficult to prove why a person was terminated.

If there are emails or other written documentation establishing that you were, in fact, terminated because of your workers’ compensation claim, you would likely have an excellent wrongful termination case. This is rare. In many instances, other potentially reasonable explanations are given for the termination. For example, you are laid off along with other workers. Or, you are terminated with the employer claiming poor work performance or other work-related issues.

Typically, the more documentation you have in support of your position, the better. If you worked for an employer for many years and are suddenly fired claiming poor work performance, many questions will surface. Did the employee have other issues in the past? If you were an exemplary employee for many years and this is documented in your employment file, this would be helpful to your argument. On the other hand, if you were terminated during your 90-day probationary period or have been reprimanded, disciplined, or written up in the past, this could work against you.

In many workers’ compensation cases, an injured worker is not terminated, but feels like they are being treated differently by their employer in some way.

Perhaps you are now being written up for things that were never an issue before. Perhaps you feel like you are being harassed to return back to work before you are ready to do so. In other situations, you may be given a different type of job that you do not want to perform or given different hours or work at a different location. Or, you are paid at a lower rate or work fewer hours. In this particular example, you may be entitled to some lost wages from workers’ compensation if you are earning at least 80% of your pre-accident earnings through no fault of your own.

In some situations, the employer may be genuinely attempting to provide work within your restrictions or work with you in an amicable manner. In other situations, it may feel like the employer is trying to “get rid of you”. Please understand that without clear-cut evidence that your employer is purposely singling you out due to your workers’ compensation case, it is extremely difficult to prove in court. And, if you intend to settle your workers’ compensation case for a lump sum amount of money at some point, it would usually require you to agree to separate your employment with the employer anyway. There are many situations where it may be beneficial to seek new employment following a work-related accident. A common misconception is that an injured worker must continue to work for the same employer after a work-related accident or injury to pursue workers’ compensation benefits. This is simply not true. Americans are not forced to work anywhere, and can move and work whenever they deem fit.

In many workers’ compensation cases, your employer may claim they are unable to accommodate your work restrictions.

This is not the same as being terminated. When your authorized doctor assigns work restrictions or limitations, your employer has the right to offer you work within your limitations. If so, you would not be entitled to lost wage checks since work is being offered within your limitations. If they don’t have work available, you would be entitled to lost wage checks until your doctor places you on a full duty work status, places you at MMI (Maximum Medical Improvement) or your employer later offers you work within your limitations.

Please understand that once you are placed at MMI, your authorized doctor may also assign permanent work restrictions. If you have permanent work restrictions that would prevent you from performing the job you were hired to do, your employer has the right to legally let you go. In other words, let’s say you were hired to work in a job that required you to lift up to 50 pounds. Your authorized doctor ultimately places you at MMI with permanent work restrictions of no lifting more than 20 pounds. In this situation, your employer may let you go claiming that they cannot accommodate your permanent limitations. This is different than being fired for being injured at work and your employer does have the right to do so. They could also try to accommodate your restrictions although they are not legally required to do so. If you lose your job and suffered a catastrophic type of injury that results in you being unable to return to work in any capacity, you would have the potential to pursue a Permanent and Total Disability claim which would entitle you to lost wage benefits until age 75 or death, whichever comes first.

Consult with a workers’ compensation attorney

If you suffer a serious injury at work, you should strongly consider consulting with a workers’ compensation attorney as early in the process as possible. Again, be proactive. If you believe that your injuries may ultimately prevent you from performing your former job or the type of work you typically perform, don’t wait until you are terminated to speak to an attorney about your options.

February 9, 2023

A Guide to Workers’ Compensation in Florida

If you live and work in the state of Florida, it’s important to understand how workers’ compensation works. In the event of an injury or accident sustained while on the job, workers’ compensation provides benefits that can help you and your family get through a difficult situation. Let’s take a look at what all is included in Florida’s workers’ compensation system.

What Does Workers’ Compensation Cover?

Workers’ compensation covers any medical bills related to any workplace injuries or illnesses you may have suffered from. This includes doctor visits, hospital stays, surgeries, tests, and other forms of treatment. Additionally, if you are unable to return to work due to an injury or illness sustained on the job, workers’ comp can provide wage replacement benefits for up to two-thirds of your average weekly wages. You may also be eligible for death benefits if you lose a loved one in a workplace accident.

Eligibility Requirements

In order to receive workers’ compensation benefits in the state of Florida, you must meet a few requirements. First off, all employers with four or more employees must carry workers’ comp insurance that covers their employees. That means that as long as your employer has this insurance policy in place and you were injured while performing regular job duties, then you should be covered by workers’ comp benefits. In addition, if your employer does not have this insurance policy in effect, then any medical expenses incurred due to an injury or illness sustained on the job would need to be paid out of pocket unless they are covered by another form of insurance like health insurance or disability insurance. Sometimes, unscrupulous employers deliberately pay workers in cash or as “independent contractors” to try to avoid paying taxes and wc insurance, but if done improperly, the employer can be held directly liable for the injuries.

Applying for Benefits

Once you have determined that you are eligible for workers’ comp benefits in Florida, it’s time to apply for them. For almost all claims, the worker will need to file a claim with your employer’s insurance company within 30 days of being injured on the job. Along with filing the claim form itself, make sure to include copies of all relevant medical records and bills as well as any documentation that proves that your injury or illness was caused by your job duties (such as witness statements). Once you submit all necessary documents along with your completed application form then it should only take about 7-14 days for your claim to be approved and benefits issued accordingly. If your employer refuses to report the injury, the employee can call the State of Florida Hotline, 1-800-342-1741, to report the employer and talk with the employee assistance office.

Conclusion

When it comes down to it, understanding how Florida’s workers’ compensation system works is essential if something ever happens while on the job and you need financial assistance getting back on track again. It’s important that employers provide their employees with this vital coverage because without it their employees would be stuck paying out-of-pocket for any medical costs associated with workplace injuries or illnesses (unless they are covered under another form of insurance). Thankfully though most employers do offer this coverage which allows their employees access to much-needed funds should something ever happen while at work—so make sure that if nothing else happens today—you take some time go over the details regarding Florida’s Workers Compensation system with yourself! That way if anything ever does happen—you’ll know exactly what steps need taken! That way no one will ever feel left behind!

February 1, 2023

Common Types of Personal Injury Cases in Florida and How Leo Trial Group Can Help

Personal injury cases are a common occurrence in Orlando, Florida, as the state is known for its bustling tourism industry and high population density. Whether it’s a car accident, slip and fall, or, personal injury cases can arise from a variety of situations. In this blog post, we will explore the most common types of personal injury cases in Florida and how Leo Trial Group can help with local cases.

Car Accidents

Car accidents are one of the most common causes of personal injury in Orlando, Florida. Whether it’s a minor fender bender or a major crash, car accidents can result in serious physical and emotional injuries. Injuries can range from minor bruises to broken bones, head injuries, and even paralysis. Leo Trial Group has extensive experience in helping clients who have been injured in car accidents, and our attorneys are dedicated to helping you get the compensation you deserve.

Slip and Fall Accidents

Another common type of personal injury case in Florida is slip and fall accidents. This type of accident can occur on private or public property and can result from a variety of hazards, such as wet floors, uneven surfaces, or poorly maintained sidewalks. Slip and fall accidents can cause serious injuries, such as broken bones, head injuries, and spinal cord injuries. Leo Trial Group has a proven track record of successfully handling slip and fall cases, and our attorneys are committed to ensuring that you receive the compensation you deserve for your injuries.

Premises Liability

Premises liability refers to the legal responsibility of property owners or occupiers to keep their premises safe and free from hazards. This type of personal injury case can arise from a variety of situations, such as slip and fall accidents, dog bites, or swimming pool accidents. Leo Trial Group has experience handling premises liability cases, and our attorneys are committed to helping you get the compensation you deserve for your injuries.

Wrongful Death

Wrongful death occurs when a person dies as a result of the negligence or wrongful act of another person or entity. This type of personal injury case can be emotionally difficult for families, and it is important to have an experienced attorney on your side to help you navigate the legal process. Leo Trial Group has experience handling wrongful death cases, and our attorneys are dedicated to helping you get the compensation you deserve for your loved one’s death.

In summation, personal injury cases are a common occurrence in Florida, and they can result from a variety of situations, such as car accidents, slip and fall accidents, premises liability, and wrongful death. Leo Trial Group is a team of experienced personal injury attorneys who are dedicated to helping you get the compensation you deserve for your injuries. If you have been injured in Florida, contact Leo Trial Group today to schedule a free consultation.