Workers Compensation in Florida (The Real Story on Work Injuries)On November 6, 2019 by Raul Dinwiddie
[music] Hi my name’s Matt Powell and I’m proud to introduce to you a friend of mine Richard Driscoll who is a worker’s compensation attorney board certified by the Florida bar. And we’re going to talk today a little bit about what rights people have and what the laws are in Florida if you’re involved in a workplace injury. Richard welcome. Thank you very much Matt. Let’s start off. How common are workplace injuries or fatalities. Well Matt, there are almost 3 million workplace injuries each year as reported by the U.S. Department of Labor. What should a person do if they are injured on the job. Very important, right away, notify a supervisor as soon as possible letting a co-worker know isn’t good enough. To make sure the employer and the insurance company are responsible to provide medical loss wage benefits the accident must be reported within 30 days. Now I know you’re board certified as a worker’s compensation attorney. Why is board certification so important to consider when someone is going to hire an attorney. Well obviously hiring an attorney is a very important decision. So make sure you hire one who has extensive experience as a specialist. The board certified worker’s compensation attorney has passed a difficult written examination on all aspects of the worker’s compensation law and has tried a large number of cases before the judge of compensation claims. What are the three or four most common mistakes that workers make a failing or you know messing up their workers compensation claim. Well this is not an exhaustive list and in no particular order but I’ve thought of several. First allowing the employer to talk the worker out of bringing a worker’s compensation claim in the first place. Instead promising the worker that the company will handle and pay all medical bills. By agreeing to this you could end up waiving your rights under the law to receive long term benefits both medical and lost wages. Second, signing a severance agreement. What is a severance agreement, OK a severance agreement is when the employer wants you gone, when the employer wants the employee who’s now been injured to leave the workplace. Fired leave the employment. It is a form of termination. There’s an agreement. Usually the consideration is the employer will provide payment for a number of weeks or months of wages in exchange for this agreement to terminate the employment. The problem is the agreements sometimes contain language that Release the employer and the carrier from liability to pay for workers compensation benefits. In other words, release, you can’t sue us for anything. And in fact may have something in there that that deprives the worker of receiving further worker’s compensation benefits. This result of course is disastrous for the injured worker because they’re not working. And now they don’t get medical benefits. Simplist a piece of advice. If an employer puts a document in front of you were some rights you’re going to be given up don’t sign it until you talk with an attorney. Ok. What are some other common things that you see. All right. Another is very common actually. The third point that I’m raising is that you know letting the insurance adjuster talk you into settling your case without having legal representation. The adjustor may tell you that there’s no need to pay an attorney that settling without one will put more money in your pocket. Don’t believe it. I have over my many years of practicing in this area. I’ve represented a number of people who were offered a settlement but had the good sense to seek legal counsel before agreeing to sign anything. That all ended up with more money in their pocket Matt, even after the attorney’s fee was deducted. So fourth, and this was the last point I came up with. People, a lot of people this is normal are afraid to pursue a worker’s compensation claim they think they’ll lose their job if they do. It’s really unlikely that the injured worker is going to be fired for pursuing benefits under the law. That’s illegal isn’t it. It’s illegal and because it’s illegal the employer can be sued outside a Worker’s Compensation Court in circuit court and be opened for punitive damages and way more money damages if they wrongfully terminate somebody simply because they filed a worker’s compensation claim or hired an attorney to help them with the worker’s compensation claim. No retaliation is allowed. No retaliation is allowed. And actually in my view workers are safer if they have an attorney because especially the bigger companies they know that they’re at great risk to be sued if they fire and an employee who’s been hurt on the job who has a lawyer. Who sets the value of the amount of compensation or medical treatment that you get. Ok worker’s comp is different from say, an auto accident all right. There’s no jury and the judge of compensation claims, the JCC, he or she, they don’t get involved in determining the money value of any worker’s comp case. Lump sum settlements are very common, but they’re arrived at through negotiation and often conducted at a mediation conference. The value of the settlement, how much the case is worth, is always linked to how much the insurance company is likely to pay over the worker’s lifetime for medical and lost wages excluding any consideration for pain and suffering, unfortunately. Ok, so pain and suffering is out in a worker’s comp claim Right. The non-economic stuff, pain and suffering, emotional anguish, lost enjoyment of life. I used to be able to do these things now I can’t do these things anymore. Those are not recoverable in a worker’s comp case therefore not part of the settlement. What are the elements under the law that workers are entitled to recover. I’ve narrowed it down to three. Number one most important I believe, medical treatment made necessary because of the accident. The worker’s right to receive treatment could continue for the remainder of his or her life, although that rarely occurs since the vast majority of cases are settled for a lump sum. Ending the insurance companies obligation to provide ongoing care. Second, lost wages. It’s a very important benefit and those are available until the worker reaches maximum medical improvement. That happens when the doctor says you’re as good as you’re going to get from your injury you’re not expected to get any better. You’re not as good as new but you’re likely left with some degree of impairment or disability. And so you know the lost wages are really not going to be recoverable in the vast majority of cases. After MMI unless your catastrophic catastrophicaly injured. In other words Permanently and Totally Disabled, a very hard benefit to obtain. in Florida. There are some very small impairment benefits for the rating but they’re meager and not of great consequence. OK. Finally, the third. It’s not a guaranteed benefit, however since 99 percent of cases are ultimately settled on a lump sum basis, I thought that I should talk about that. Yeah. Tell us about that. OK. People come to me, workers comp lawyers, because of mainly two things, they want to know what their rights are and are they getting the benefits they’re entitled to receive. And number two at some point in time they’re going to going to want to exit the worker’s compensation system and they want to know how much money their case is worth and how much I can get for them. So that’s why I’ve included this in the description of benefits we call a lump sum settlement a washout settlement because it kind of washes the slate clean for all concerned on all benefits. It ends all rights to receive medical indemnity also lost wage benefits. I sometimes refer to it as the worker’s compensation divorce. People seem to understand that. Just go their own separate ways. Thats Right Does an injured worker need to pay you any money upfront or how do you get paid. No we don’t get paid up front. We’re not allowed actually get paid upfront. We get paid by our clients on a contingent basis. There are contingency fees The fees are lower than they are in say an auto accident claim or a products or medical malpractice claim. There are typically no more than 25 percent of the settlement. Now there are situations where the insurance company for the employer would have to pay an attorney’s fee to the injured workers attorney for instance if a claim has been filed for medical benefits that have been denied or lost wages that are not being paid and the attorney successfully secures payment of those benefits. Then the attorney would be paid mostly for his hours and insurance companies hate to pay these kinds of fees because especially board certified attorneys like myself we command a much larger hourly fee, because of our experience. And the insurance company for the employer pays that. Would pay those.Yes Are there caps. I mean let’s say you’re a high wage earner like a medical doctor or a professional athlete and you get hurt on the job. Are there caps on how much they’re going to pay as far as your wages. Well you mentioned professional athlete, professional athletes are excluded under the Act. And so in rare circumstances they may be covered but that’s a rarity. As far as wealthier people in our society who get hurt and their employees with workers compensation coverage available they are covered. However if somebody’s making a million dollars gets hurt he is limited to the maximum compensation rate which now it goes up every year but in the year 2018 it’s a little bit over 900 dollars a week. So that’s really not adequately compensating a very high wage earner if they’re unable to perform the duties of their employment. Ok. What important time limits are there that will affect the workers compensation claim. Well of course there’s a statute of limitations meaning that the worker must file a claim for benefits within two years of the accident itself. And then this is kind of the second part of the statute of limitations that after receiving a benefit medical or loss wage. Beyond that two year then you’ve got to receive your next either medical or lost wage benefit within that year if you allow more than a year to go by and in-between receipt of benefits, then the claim becomes time barred by the statute of limitations and no further benefits are awarded or obtainable under the Florida worker’s compensation law. So let’s go back to, what about that 30 day the first 30 days. All right this is important. I did mention it earlier. First thing to do, right, when you get hurt. You go to your supervisor, foreman, your boss, not a co-worker Give it in writing. Tell him e-mail. The law doesn’t require it to be in writing when you notify the correct person with the employer. However I do advise that an injured worker do that, because it leaves open really nothing to question about whether or not that notice was given. Do you recommend they call an attorney right away. I do. I can tell you that the insurance companies, they have in-house counsel, some of the major insurance companies have in-house counsel and when serious injuries occur they’re bringing their attorneys on board. It costs the the injured worker nothing to get a consultation with a lawyer, very shortly after they have an injury on the job. What happens when a worker is killed on the job It’s a tragic time for the family of course. The death benefits and there are some under the law are not that great in my opinion. However, they are there, burial expenses up to a cap are paid. And there’s some vocational retraining available to the surviving spouse. But in terms of money benefits the total that could be paid over time is not to exceed 150 thousand dollars. They’re paid weekly though, weekly to the spouse and to the children and the combined will not exceed 66 and two thirds percent of the injured now deceased employees average weekly wage. Wow. All right. What if I’m hurt on the job but it’s someone else’s fault like it’s a dangerous product. It’s a car crash. And you know I’m a salesman and I’m driving along and I’m on the clock but I get into a car crash. What do you do then. All right. You can’t sue your employer due to the negligence of this offending driver or negligent driver or anybody or company that’s negligent in causing your injury because the employer is they have the benefit of immunity under the law. So you can’t sue the employer. You just have that exclusive remedy under worker’s compensation against the employer to receive worker’s compensation benefits from them. But you still can sue the responsible third party who was negligent in causing your injury, of course and have to prove that they were at fault in causing the accident. So then in that scenario you’ve got two cases your workers compensation claim and a separate claim against a negligent or at fault party. All right. Is there anything that a person should do if they’ve got a third party claim to protect the evidence, what should they do. Yeah you want to make sure that important evidence is saved or photographed if you’re hurt say on the job by a dangerous product. By all means ask your employer to save the defective item. You’ll probably need it to prove your third party claim, or at least take photographs of the vehicles or the scene of the accident. Anything you can to help make it easier for us to prove the fault of the other person or product, and call my office right away. Thank you Richard for this valuable information about worker’s compensation claims in Florida. If you or someone you know has been injured on the job please call Richard Driscoll. He’s board certified by the Florida bar as a worker’s compensation specialist. His phone number is 813-251-3001 . Thank you very much for watching.