What Rights Do You Have When You Are Injured On the Job?
Approximately 70,000 men and women are injured on the job each year in Florida. Workers’ compensation laws are in place to protect workers in the event that they sustain serious injuries on the job, and to help them recover compensation for medical expenses and lost wages. However, workers’ compensation laws can be very complex, and receiving the benefits rightfully owed to you a lot more difficult than it should be. At Payer & Associates our Miami workers’ compensation lawyers are here to protect your rights in the event that you get injured on the job. We are familiar with Florida’s workers’ compensation laws, and keep up to date on the many changes that the law undergoes. With knowledge and experience on our side, we can help recover the compensation you need to get back on your feet without having to stress about the financial concerns or legalities that stem from on-the-job injuries.
Workers’ Compensation Laws Vary from State to State
One of the most important things to understand when dealing with a workers’ compensation claim is that workers’ compensation laws vary from state to state. This article deals solely with Florida’s workers’ compensation laws. However, whether you are dealing with a work injury that occurred within the state of Florida or without, this article is by no means intended to act as legal advice, and is strictly written to provide you with a brief overview of Florida workers’ compensation law so that you may better understand what to expect upon filing a workers’ compensation claim.
Florida Workers’ Compensation Basics
How much of your workers’ compensation case will be handled all depends on what you proceeded to do after receiving your injury. Our Florida workers’ compensation lawyers have the following advice for Florida workers:
- What to do when you are injured on the job: If you should sustain injuries on the job, you should immediately notify your supervisor; however, if you fail to notify them immediately, know that you have up to 30 days after the accident to notify them of your injuries. In rare instances – such as if you were to be exposed to toxic substances that result in latent conditions – are you allowed to give notice within 30 days of learning of your condition.
Once you notify your employer of your injury or condition, you may be asked to sign a First Notice of Injury form, which your employer will pass on to their insurance carrier. Our Miami workers’ compensation attorneys highly recommend listing every injury and condition that you have, as if you do not, the insurance carrier will likely deny compensation for an injury or condition if you try to claim it later on—even if the injury or condition is found to be work-related.
Furthermore, we recommend documenting all of your injuries, as well as the “scene of the crime,” so to speak, via photograph. Though not required, pictures make for excellent evidence when there is little to none to speak of.
- Medical Care: When you initially report your accident, you should request medical care through the company’s workers’ compensation insurance. Typically, the insurance company will refer you to an on-staff physician, but if they do not, you should request that they do. If they fail to approve your request for medical attention, or if they ignore you entirely, you have the right to seek medical attention from a physician or specialist of your choosing; if this is the route you end up taking, your company’s insurance agency will still be responsible for covering your medical expenses. If, for whatever reason, you end up paying for a majority of the medical expenses out of pocket, the insurance company must reimburse you.
In the event of an emergency – i.e. you had to be immediately transported to the hospital, where you received emergency treatment – and you had no time to notify your employer of your injuries or to contact the employer’s insurance carrier, you up to three business days after treatment was rendered to submit your claim. The treatment will be covered so long as it was reasonable and related to the work-related injuries.
Working with an Insurance Company Provided Physician
If the workers’ compensation insurance company agrees to provide you the medical attention you requested, you generally have no choice but to visit the physician of their choice. The recommended primary care physician will determine your course of treatment, as well as refer you to any specialists if necessary. Working with the insurance company provided physician has its ups and downs.
A benefit of using the insurance company’s recommended physician is that you will have no issues in receiving medical care free of charge; a downfall is that the insurance provider’s physician can determine when you have reached the point of maximum medical improvement (MMI). Under Florida Statute 440.02(10), MMI is defined as the point at which the doctor does not anticipate that any further treatment will provide lasting improvement to your condition. Unfortunately, the primary physician often determines this prematurely, and there is not much you can do about it.
If, once the primary caregiver decides that you have reached the point of MMI, you still experience pain or discomfort from your injuries, you have the option of returning to the authorized caregiver for a small copayment of $10 per doctor visit.
Under workers’ compensation law, the insurance company is also required to pay for your mileage to and from the doctor’s office for treatment, follow-ups, examinations, testing (MRI, X-ray, etc.), therapy, and any other medical related trips, including but not limited to going to the pharmacy to pick up prescribed medications. You will be reimbursed 44 cents for every mile that you drive; however, it is your responsibility to keep track of the mileage you accrue on a form provided directly by the insurance company. Furthermore, you do not want to guestimate your mileage; if need be, write down the beginning and ending readings on your odometer before and after each trip.
If, for whatever reason, you are unable to transport yourself, you must arrange transportation with the insurance company ahead of time.
Assisted Living Expenses
If your injuries are so severe that you are unable to perform everyday activities on your own – such as getting out of bed, bathing, or getting dressed – or if you cannot be left alone because of safety issues, the insurance company is responsible for providing a qualified attendant. Your doctor must “prescribe” at home care, however, in order for the insurance company to cover the expense. The prescription must describe in detail exactly the type of help that you require, and for how many hours of the day it is needed.
If you feel uncomfortable allowing a stranger into your home for an extended period of time, you may be able to request that a family member or friend help out. If the insurance company approves the request, your family member or friend will be compensated just as an insurance-provided attendant would be.
While oftentimes an attendant is only required for a few days or months, there are instances in which an individual requires ongoing attention for the rest of their life (i.e. in instances of brain damage, dementia, quadriplegia, etc.). If this is the case, the workers’ compensation insurance company will still be required to cover the care, no matter how expensive ongoing at-home care may end up being.
What To Do When You Are Unhappy With the Insurance Company’s Doctor
If you are dissatisfied with the doctor that the insurance company provided for you, you have the right to request a change of physicians. However, you may only submit this request one time per work-related injury. Once you submit your request, the insurance carrier has up to five days to provide you with a replacement; if they do not, the same rules apply as if they did not provide you with a caregiver to start with—you get to choose your own.
Because of the legal complications that come with switching primary care physicians in the middle of treatment, our Miami workers’ compensation lawyers recommend consulting with an attorney before you put in the request. A good workers’ compensation attorney generally knows all of the best local physicians, and can assist you in getting the insurance company to agree to let you receive care from one of them. After all, your doctor can make or break your workers’ compensation case, as your primary physician is responsible for determining your course of treatment, whether or not you should see a specialist, your work status and restrictions, impairment ratings, and the point of Maximum Medical Improvement (MMI). Each of these factors plays a huge role in how much you will receive in both monetary and medical benefits.
When dealing with a workers’ compensation claim, any monetary benefits that you receive are referred to as Indemnity Benefits in Workers’ Compensation. These benefits are meant to cover lost wages. In order to calculate how much your Indemnity Benefits will be, take all of your wages, bonuses, and commissions paid/earned during the 13 weeks prior to your accident. Add them all together, and then divide the whole sum by 13. By doing this, you will be left with your average weekly wage (AWW). Your AWW will provide a basis for calculating how much in monetary benefits you should receive.
Oftentimes, conflicts will arise regarding how a worker’s average weekly wage is calculated, especially if one or more of the following is true of the worker’s circumstances:
- The worker did not work for the entire 13 week period leading up to the accident;
- The worker holds a second job, wages from which must be calculated into the final AWW amount;
- The employer was paying the injured worker under-the-table (in cash so as to avoid taxation), thereby leaving no record of how much the worker was actually being paid; and
- The worker was receiving additional benefits such as group health insurance or a place to live throughout the entire 13 weeks leading up to the injury, but those benefits were discontinued upon injury; however, the value of those benefits should be included in the final AWW amount.
Because of the legal conundrums that these issues create, your best bet would be to work with a Miami workers’ compensation attorney to ensure that your AWW is calculated fairly and correctly. Otherwise, you may receive far less than what you deserve in Indemnity Benefits in Workers’ Compensation.
Types of Monetary Benefits You May Receive Under Florida Workers’ Compensation Law
Under Florida workers’ compensation law, an individual may not receive any monetary benefits for pain and suffering. However, there are five other ways in which an injured worker may receive monetary benefits. They are as follows:
1) Temporary Total Disability;
2) Temporary Partial Disability;
3) Permanent Total Disability;
4) Impairment Benefits; and
5) Death Benefits.
Each of the aforementioned benefits is described in brief detail below:
- Temporary Total Disability: TTD benefits are paid when a doctor completely restricts the workers from returning to work during the course of treatment. The worker will receive two-thirds of their total AWW until they are able to return to work. In order to receive the benefits, the worker must present a prescription from the doctor – in this case, a form known as a DWC-25 – that specifically states that the worker is to be on a No Work Status, and that they have yet to reach Maximum Medical Improvement. The worker will receive their benefits every two weeks until the doctor determines that MMI has been reached and has revoked the No Work Status.
- Temporary Partial Disability: TPD is paid out when a worker has been granted permission to work, but with certain restrictions (i.e. cannot lift heavy objects, no sitting for extended periods of time at a desk, etc.). TPD benefits will only be paid out if the employer chooses not to keep on the employee because of these restrictions, or if the employer cannot find work that adheres to these restrictions. If a worker receives TPD benefits, they will be paid biweekly at the rate of 64 percent of their total AWW.
However, if the employer can find work that meets the doctor’s recommended restrictions for the employee, the employee will not receive TPD benefits unless they are making less than 80 percent of their AWW in their new position. If they are making less than 80 percent of their past earnings, they will receive TPD benefits; however, how much is to be determined. The formula for determining what the worker should be fairly compensated in benefits to make up for the pay decrease is as follows: 80 percent of the difference between 80 percent of the workers’ AWW and their current, post injury wages.
Example: If a worker’s AWW is $420, and they return to work and, per doctor’s orders, are placed in a lesser earning position that brings home $220, the worker would be entitled to $92.80 in TPD benefits.
Step 1: Calculating 80 percent of a worker’s AWW ($420 AWW x .8 = $336)
Step 2: Calculating the difference between the AWW and current earnings ($336 – $220 = $116)
Step 3: Calculating 80 percent of the difference ($116 x .8 = $92.80)
Keep in mind that if the worker were to go back to work and earn at least 80 percent of their AWW in their new position, they would not be entitled to TPD benefits. In this instance, the worker would have to make $336 or more in order to be disqualified for TPD benefits (refer to Step 1).
As with the Temporary Total Disability benefits, a worker should receive their Temporary Partial Disability benefits biweekly so long as the worker remains on Limited Work Status.
An injured worker is only entitled up to 104 weeks of benefits, total. This means that they may receive 64 weeks of Temporary Total Disability benefits, and 40 weeks of Temporary Partial Disability benefits, but no more. Even if a worker is still unable to perform the duties of their previous, higher paying job after 40 weeks of being back to work on Limited Work Status, they will be unable to receive compensation for the difference in pay. Rather, they must make due with the lesser pay, search for another, higher paying job that can accommodate their needs, or apply for benefits with the Social Security Administration.
If forced into a new occupation, Florida’s workers’ compensation law provides for the ability of an injured worker to obtain retraining. If you opt to be retrained, you must be approved by the State’s Vocational Rehabilitation Department. If approved, you will be eligible for benefits similar to Temporary Total Disability Benefits for up to one year.
We discussed the first two types of monetary benefits available through workers’ compensation: Temporary Total Disability benefits and Temporary Partial Disability benefits. Now we will discuss the remaining three types of monetary benefits: Permanent Impairment benefits, Permanent Total Disability benefits, and Death benefits.
- Permanent Impairment Benefits: Even if a worker has reached the point of Maximum Medical Improvement (MMI) and has returned to work, they may still be eligible for monetary benefits if they have a permanent impairment of some kind. Much like Military disability ratings, that state of Florida has impairment ratings. Once a doctor determines that a worker has reached MMI, they – along with any other treating physicians – must review the Florida Uniform Permanent Impairment Rating Schedule to determine if the worker has acquired any permanent impairments, and if so, to what extent they affect the worker’s ability to perform his or her job. Based on the impairment rating assigned, the worker will receive an equitable amount of benefits.
The amount of benefits a worker will receive is based on a couple of different factors, including whether or not the individual is currently working, and if they are earning wages equal to or in excess of the AWW (Average Weekly Wage – refer to Part 3 of this series). If the individual is not working and earning equal to or in excess of their AWW, then the worker will receive 75 percent of their Temporary Total benefits (approximately 50 percent of their AWW).
- Permanent Total Disability: The state of Florida strives to limit both the number of workers who qualify for Permanent Total Disability and the amount they can receive, by making the requirements surrounding this type of disability more stringent. Until 2003, workers were able to collect Permanent Total Disability benefits for life; after 2003, however, state legislature limited entitlement to collect these benefits until age 75, at which point, the individual may become eligible for social security benefits. The amount of benefits a worker can receive under this type of disability is equivalent to those under Temporary Total Disability. However, under Permanent Total Disability, an individual is entitled to a cost of living supplemental benefit as well.
In order to qualify for Permanent Total Disability, an individual must demonstrate one of the following:
- a) a permanent medical incapacity to perform at least sedentary work (i.e. sit down work), and to find employment within a 50-mile radius of his or her residence;
- b) a permanent work-related physical restriction coupled with a sincere but unsuccessful job search; or
- c) a permanent work-related physical restriction that, while not completely disabling, impede the worker from performing at least sedentary duties when combined with vocational factors, such as formal education, specialized training, work experience, etc.
Because Permanent Total Disability can end up costing the workers’ compensation insurance company hundreds of thousands of dollars, the insurance carrier will do everything in their power to keep an injured worker from qualifying for Permanent Total Disability. However, if you believe that you should be entitled to Permanent Total Disability benefits, consult with a Miami workers’ compensation attorney right away to learn more about the actions you need to take to proceed with this claim and come out successful.
- Death Benefits: If the injured worker passes away within one year of the work accident, or if their death should follow continuous disability and results within five years of the work accident, the worker’s family members who were dependent upon him or her will be entitled to death benefits. These benefits are limited to $150,000 total. Additionally, the employer and insurance carrier will responsible to cover up to $7,500 of the funeral expenses, and to cover the cost of up to 1,800 classroom hours for the spouse to obtain the necessary post-secondary education to retain gainful employment.
Pursuing Other Claims After a Work-Related Accident
Oftentimes, a client will want to know if they have other legal avenues to pursue, such as suing their employer or a co-worker for their injuries. Typically, the answer is “no,” as Florida Statute 440.11 provides employers and employees alike immunity for negligence in the workplace. However, in rare instances, a client may be able to sue their employer for an intentional tort. The injured worker must prove the following in order to file a successful lawsuit against their employer:
1) That the employer engaged in conduct that they knew would result in injury, or that was meant to intentionally cause the employee harm; or
2) That the employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.
Suing a co-worker for an intentional tort is less difficult, as all the injured worker must prove is that the co-worker acted with willful and wanton disregard for the safety of others, or physically assaulted the injured co-worker. Additionally, if one employee injures another because they were “horsing around” in the office, that employee may be sued, as their actions were not within the scope of employment. Only if their actions were within the normal scope of employment may an employee be protected from a personal injury claim.
Third Party Work-Related Accidents
Occasionally, a third party will be liable for an employee’s injuries as well. For instance, another driver may strike a company’s delivery driver while they are out making a delivery. Not only would the delivery driver have a workers’ compensation claim on their hands, but also, they may be able to file a claim against the driver that struck them. In situations such as these, the worker would be able to collect damages that they typically would not be able to under a workers’ compensation claim, such as damages for pain and suffering, or lost wages, past and future.
The legislation surrounding third party claims in combination with workers’ compensation benefits is a bit muddled, and too complex to explain in any great length here. To learn more about your legal options regarding work-related accidents caused by third parties, contact our Miami workers’ compensation lawyers.
Limitations Surrounding Accidents Caused by Third Parties
Just as there are limitations as to who can be sued within a company, there are also limitations as to which third parties an injured worker can and cannot sue for damages. For instance, if an injured worker’s company is a contractor or subcontractor, and if they were working in conjunction with other contractors or subcontractors at the time of the injured worker’s accident, then all of the other company’s employees would be immune from a personal injury suit (unless the accident was caused by gross negligence on the part of the contractor’s employees, as described in Florida Statute 440.10).
Under this law, if an employee of the other contractor was responsible for the injured worker’s accident, the injured worker would only be able to receive workers’ compensation benefits. However, if the other contractor were not covered by workers’ compensation, then the injured worker would be able to sue the negligent employee of the other contracting company.
Likewise, if an employee were to sustain injuries on the job and then find out that their employer does not have workers’ compensation insurance, the injured worker has two options:
1) To pursue benefits under workers’ compensation law against his or her uninsured employer; or
2) To sue his or her employer directly for negligence.
If the employee chooses to pursue a lawsuit, the employer could get into huge trouble for failing to invest in the required insurance.
In some instances, an owner or officer of a company will elect to not be included in the workers’ compensation coverage purchased by their company. When individuals do this, they are opting to leave themselves vulnerable to personal injury lawsuits.
Laws Prohibiting Retaliation
Finally, Florida Statute 440.205 prohibits employers from retaliating against employees who have filed a workers’ compensation claim or a personal injury claim against the company. The law reads as follows:
“Coercion of employees.–No employer 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 an employer tries to retaliate against an injured worker for filing a claim, the injured worker can file a claim for wrongful termination and/or retaliation.
Hire a Miami Workers’ Compensation Lawyer
The Miami workers’ compensation lawyers of Payer & Associates are here to ensure that you achieve the best possible outcome to your workers’ compensation case, which is why we have provided this seven part series—for you to familiarize yourself with your legal rights following a work-related injury. Florida workers’ compensation laws can be complex, and pursing a claim can be challenging. If you hope to receive the maximum amount of benefits available given your circumstances, contact us today.