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!

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.