Articles Posted in Workers’ Compensation

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A very common occurrence that we assist people with in our practice is what to do when they are involved in a motor vehicle accident while working. Specifically, situations where the accident didn’t happen while going to and coming from work or at lunchtime, but it actually occurred while on the clock and while performing work duties. In these situations, the injured party has a choice between potential sources of recovery. If their employer has Workers’ Compensation insurance then they will likely be required to at least have an initial consultation with a Workers’ Compensation doctor to assess the extent of the injuries. In addition, most employers in the State of Florida require an initial drug test urine screen in order to establish the claim

A common misconception that occurs in these situations is that the injured party is under the impression that they are required and only have the option to treat under their Workers’ Compensation insurance. However, this is not the case if the injured party is not at fault in the crash and the at-fault party has Bodily Injury insurance coverage. In these situations, in addition to the potential workers’ compensation benefits available, the injured party can also make a claim against the at-fault party’s Bodily Injury insurance. This would provide the injured party two potential sources of recovery for their damages.

In addition the above sources of recovery, an injured party may have yet another avenue to recover for their losses. If the injured party, or the vehicle that they were in when the crash occurred, had Uninsured or Under-insured motorist coverage in their policy this may provide an additional remedy. This coverage would apply if the at-fault party did not have Bodily coverage on their car insurance or if their coverage was not enough to fully compensate the injured party for the full extent of their damages from the crash.

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Many employees lost their jobs due to the COVID-19/Coronavirus pandemic and economic fallout. Many others became “remote” employees overnight. However, there is a large subset of individuals who are still continuing to work at physical locations. Initially, this was limited to “essential” workers, however, at present a large percentage of the labor pool is working at a

physical job site on a daily basis. This creates a lot of concerns for employers in the State of Florida, but also, places enormous pressure on the entire work force. Concerns over health and economics and attempting to balance these two essential tenets, can be a high-stress, anxiety-provoking matter.

Florida issued emergency legislation on federal, state and local levels to increase paid and unpaid sick leave and unemployment insurance benefits for COVID-19-related absences. The true gray area that exists is with regards to employees who contract COVID-19 while working – especially now that the work “place” is a fluid term.

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As most Floridians are aware as of the date of this blog, the Ron DeSantis, Governor of Florida has issued a “Stay at Home” Order for all of Florida as a result of the global pandemic, COVID-19 (Coronavirus). However, while many individuals have lost their jobs and unemployment is at a historic high, there are still any people who are members of the work force because their jobs are considered “essential.”

Essential employees per the Governor’s executive Order 20-89 are defined, generally as: Healthcare providers, grocery, food banks, and other established engaged in sale of food, food cultivators, businesses that provide food/shelter for homeless, media, gas stations and auto repair, banks, hardware stores, contractors, repair workers, mail and shipping companies, schools (only for online learning), laundry and dry cleaners, restaurants and food preparation, suppliers of essential business needs, airlines and transportation, home-based care for seniors and children, professional services, landscape and pool care, child care centers, telecommunications, architectural services, factories, waste management, and generally businesses that interact with customers through electronic or telephonic means.

Currently, Workers’ Compensation law in the State of Florida, does not extend Workers’ Compensation coverage to all essential workers defined above, however, the State is beginning to take steps in the right direction to extend coverage to some workers.

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When an individual applies for a new job, they often receive a pre-employment application and questionnaire. As a part of this application, in addition to being asked about your personal information, the often ask questions about your health and physical well-being. Employers are within their rights to ask about your physical condition prior to employing you in order to assess if you are physically able to perform the work that you are being hired for. This mostly occurs in positions that require physical labor, but can come up in applications for any type of employment.

The most common questions found on pre-employment applications or questionnaires is “Have you ever been injured?” or “Have you ever injured the following body parts,” and includes a list such as neck, knee, shoulder, etc. If you are applying to a job and falsely answer, this can be grounds for a denial of insurance coverage in a Workers’ Compensation claim. In other words, if you are ever injured at that same job where you gave wrong information, your claim may be denied in its entirety.

The Florida Supreme Court in Martin Company v. Carpenter, 132 So. 2d 400 (Fla. 1961) held that a claimant who intentionally misrepresents a pre-existing condition to his employer and who is later injured in a work-related accident will be barred from collecting compensation and medical benefits if certain elements are met. Those elements require the employer to prove (1) the claimant knew the misrepresentation was false; (2) the employer would not have hired the claimant had the employer known the truth about the claimant’s condition; and (3) there exists a causal connection between the pre-existing condition and the subsequent work-related injury.

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The Rise and “Phal” of the Workers’ Compensation System- by: Diana I. Castrillon, Esq.

In February of 2013 a three-judge panel at the First District Court of Appeals in the case of Westphal v. City of St. Petersberg ruled that a portion of the Florida Workers Compensation statute was unconstitutional.  Specifically, the Court held:

“… that section 440.15(2)(a), Florida Statutes, is unconstitutional as applied,

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On February 22, 2019 Freeman Injury Law’s workers compensation attorney, Diana Castrillon presented a “Case Law Update” to the local Bar of attorneys at the 2019 Workers’ Compensation Conference.  Only certain attorneys are selected based on skill and experience to carry out this highly anticipated panel presentation. Attorney Castrillon was honored to have been chosen to update a group of their colleagues of the current state of Workers Compensation law in Florida. Ms. Castrillon researched all the latest cases and studied them extensively so that she could educate the local attorneys with regards to any changes in the law.

The cases Ms. Castrillon presented at the Case Law Update involved medical treatment, statute of limitations, pretrial rules, motions to enforce agreements, one-time change in medical providers, payment of temporary disability benefits, payment of advances on compensation, evidence and independent medical examinations.

One important case to recently come out of the 1st District Court of Appeals in Florida,  is Myers v. Pasco County School Board, No. 1D17-5457 (Fla. 1st DCA 2018),  where an injured worker was seeking a one-time change from her orthopedic surgeon to a new orthopedist.  The insurance company provided the injured worker, Myers, with a neur  osurgeon instead because that doctor was likely more favorable to the insurance company.  Myers attorney filed a claim against the Employer/Carrier arguing that a neurosurgeon is a different medical specialty that an orthopedic and that it was not appropriate to send the injured worker to a different specialty without a referral.  At the lower court level, the Judge agreed with the Employer/Carrier and said that the specialty of the physician is close enough that both of these types of doctors can treat similar medical conditions.  So the Court said this was substantial compliance with Myer’s request.  However, this case was then sent up on appeal and the 1st District Court of Appeals did not agree with the Judge and ordered the Employer/Carrier to provide the injured workers with a new doctor within the same medical specialty as he requested, orthopedics.  This case made it clear to the employer and insurance carrier that the rules are being strictly construed and when an injured worker asks for an “orthopedic,” they must be provided with exactly what they request.

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Unintentional falls are among the leading causes of accidental injury in the state of Florida. According to data published by the Florida Department of Health, falls are the leading cause of death for people over the age of 65. During the year 2012 alone the economic impact of unintentional fall accidents was in excess of $3.6 billion statewide. The median medical admission charge was more than $46,000.

The circumstances leading to a slipped on wet floor injury in South Florida vary widely from case to case. They might involve employees of the business, customers or invited guests on private property. The most common injuries that resulted from unintentional falls during the year 2012 included:

  • Hip fractures,
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A manufacturer involved in a Florida accident at work claim is now also facing nearly $400,000 in fines, with federal work safety officials alleging the company failed to protect its employees from this type of work-related accident. 

Like many on-the-job amputation injuries in Florida, this one involved lack of machine guarding. While amputations can potentially occur in any type of job site, those at manufacturing plants like this one in Hialeah tend to be much higher. Most who file a Florida accident at work claim for an amputation have lost a finger.

Valuation of Florida Accident at Work Claim for Finger Amputation

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Heat-related work hazards are severe in the South. Florida workers’ compensation law does allow for coverage of job site illnesses such as heat stroke – but only when it results in a week or more of lost time at work. As The Miami Herald reported recently, Florida has one of the highest heat-related hospitalizations in the country, with agricultural and construction workers at highest risk. Even that is a low estimate, given that many conditions, such as heart attacks, asthma and even mental illness could be aggravated as a result of high heat. The key is proving those conditions were caused or substantially impacted by conditions of overheating at work – which is why having a Miami workers’ compensation attorney is so essential in these cases.

The problem is only going to get worse, according to a number of worker advocacy groups, thanks to rapidly rising temperatures due to climate change. A health project coordinator for the Farmworker Association of Florida stated many workers in the field have reported a noted rise in the temperatures as they work day in day out in the blazing Florida sun. A recent report by the United Nations revealed average U.S. temperatures have risen more than 1 degree Fahrenheit in the last three decades. Unchecked, it will rise another 2.7 degrees Fahrenheit by 2100, which the U.N. said could have a catastrophic impact for humans in general. Continue reading →

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Florida workers’ comp benefits cannot be backdated in order to cover a previous work-related injury. That’s the recent ruling from Florida’s 1st District Court of Appeals, which held (unsurprisingly) that people who are uninsured can’t suffer a loss, scramble for insurance and then assume that cost will be covered.

It’s not a stunning ruling by any means, given that this is generally the way insurance works – whether it’s workers’ comp benefits or car insurance or health insurance. You can’t be covered after the fact.

As noted by the Florida Division of Workers’ Compensation, pretty much all employers conducting work in the state of Florida are mandated to maintain workers’ compensation insurance for their employees, with specific requirements dictated by type of industry, organization structure and number of workers. Companies do not need to pay insurance for workers’ comp benefits for those who are independent contractors as opposed to employees, but employee misclassification is a serious problem in Florida employment law. Some companies have been caught skirting their obligations by wrongly classifying workers as independent contractors to avoid paying workers’ compensation insurance. If a work injury or illness occurs in this scenario, that injury won’t be covered by insurance, but the worker will have the right to sue the employer for negligence and obtain compensation far in excess of what would have been paid in Florida workers’ comp benefits.  Continue reading →

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