1. What is “Workers’ Compensation” in Florida?
Workers’ Compensation is the no-fault statutory scheme by which most
employees working within the State of Florida are compensated for injuries
arising out of the workplace. Florida Statutes Chapter 440, which codifies this
statutory scheme, is called and may be cited in courts of law as the “Workers’
Compensation Law.” For the sake of brevity, we often refer to the Florida
Workers’ Compensation Law as “the Act.”
Workers' compensation is essentially an insurance plan provided by the
employer, self-executed by the employer's insurance carrier or servicing
agent, and monitored by the State of Florida Division of Administrative
Hearings Office of the Judges of Compensation Claims.
Employers obtain coverage either by purchasing a policy from a private
insurance company, by joining an authorized self-insurance fund, by purchasing
insurance from the State of Florida Joint Underwriting Association (“JUA”), by
qualifying as an individual self-insured, or by contracting with an employee
leasing company (which can be known also as a professional employer
organization or “PEO”.)
For an overview of the litigation procedures necessary for bringing or
defending against a workers’ compensation claim in Florida, please see Patrick
John McGinley, Florida Workers’ Compensation sections 3:1 through 4:34 (West
Publishing Co.).
2. What Employers Provide Workers’ Compensation Coverage in Florida?
It is unlawful in Florida for an employer who is required to carry workers’
compensation insurance coverage to fail to do so. Workers’ compensation
coverage is mandatory in all “public employment,” meaning employment by the
state of Florida and all political subdivisions thereof and all public and quasi-
public corporations therein, including officers elected at the polls. In all private
employment, workers’ compensation coverage must be provided to all
employees of any private employer for which four or more employees are
employed by the same employer or, with respect to the construction industry,
all private employment in which one or more employees are employed by the
same employer.
Employers who employ solely the following classifications of workers have no
legal obligation to provide workers’ compensation coverage in Florida because
these classifications do not meet the Florida Workers' Compensation Act’s
definition of “employment”:
1. Domestic servants in private homes.
2. Agricultural labor performed on a farm in the employ of a bona fide
farmer, or association of farmers, that employs 5 or fewer regular employees
and that employs fewer than 12 other employees at one time for seasonal
agricultural labor that is completed in less than 30 days, provided such
seasonal employment does not exceed 45 days in the same calendar year. The
term “farm” includes stock, dairy, poultry, fruit, fur-bearing animals, fish, and
truck farms, ranches, nurseries, and orchards. The term “agricultural labor”
includes field foremen, timekeepers, checkers, and other farm labor supervisory
personnel.
3. Professional athletes, such as professional boxers, wrestlers, baseball,
football, basketball, hockey, polo, tennis, jai alai, and similar players, and motor
sports teams competing in a motor racing event as defined in Florida Statutes
section 549.08.
4. Labor under a sentence of a court to perform community services as
provided in Florida Statutes section 316.193.
5. State prisoners or county inmates, except those performing services for
private employers or those enumerated in Florida Statutes section 948.036(1).
Of course, workers’ compensation could be provided by an employer who has
no legal obligation to provide coverage. In the author’s experience, this can
happen in the case of a collective bargaining agreement, a closely held
corporation, or in an industry where hiring is competitive and fringe benefits
become lucrative. In such instances, it would be wise to inquire of the
employer whether workers’ compensation coverage was provided regardless
of the lack of legal liability for so doing. When any policy or contract of
insurance specifically secures Florida workers’ compensation benefits for any
person not included in the definition of “employee” or whose services are not
included in the definition of “employment” or who is otherwise excluded or
exempted from Florida’s workers’ compensation Act, the acceptance of such
policy or contract of insurance by the insured and the writing of same by the
carrier shall constitute a waiver of such exclusion or exemption and an
acceptance of the provisions of this chapter with respect to such person,
notwithstanding the provision of Florida Statutes section 440.05 with respect
to notice.
Every employer who fails to secure the payment of workers’ compensation
coverage may not, in any suit brought against him or her by an employee to
recover damages for injury or death, defend such a suit on the grounds that
the injury was caused by the negligence of a fellow servant, that the employee
assumed the risk of his or her employment, or that the injury was due to the
comparative negligence of the employee. If an employer fails to secure
compensation as required by the Act, the State of Florida Department of
Financial Services shall assess against the employer a penalty not to exceed
$5,000 for each employee of that employer who is classified by the employer
as an independent contractor but who is found by the department to not meet
the criteria for an independent contractor. The issues involving independent
contractors are covered in greater detail below and in Patrick John McGinley,
Florida Workers’ Compensation sections 6:14 through 6:16 (Thomson-West
2006 edition).
In case a contractor sublets any part or parts of his or her contract work to a
subcontractor or subcontractors, all of the employees of such contractor and
subcontractor or subcontractors engaged on such contract work shall be
deemed to be employed in one and the same business or establishment, and
the contractor shall be liable for, and shall secure, the payment of
compensation to all such employees, except to employees of a subcontractor
who has secured such payment.
3. Which Workers are Covered by Florida Workers’ Compensation?
Generally, workers who meet the statutory definition of “employee” are
covered by the Florida Workers’ Compensation Act. The Act’s definition of
“employee” provides:
“Employee” means any person who receives remuneration from an employer
for the performance of any work or service while engaged in any employment
under any appointment or contract for hire or apprenticeship, express or
implied, oral or written, whether lawfully or unlawfully employed, and includes,
but is not limited to, aliens and minors.
The Act provides 4 explicit examples of workers who meet the definition of
“employee.” Under the Act, the term “employee” includes:
1. A sole proprietor or a partner who is not engaged in the construction
industry, devotes full time to the proprietorship or partnership, and elects to be
included in the definition of employee by filing notice thereof as provided in
Florida Statutes section 440.05.
2. All persons who are being paid by a construction contractor as a
subcontractor, unless the subcontractor has validly elected an exemption as
permitted by this chapter, or has otherwise secured the payment of
compensation coverage as a subcontractor, consistent with Florida Statutes
section 440.10, for work performed by or as a subcontractor.
3. An independent contractor working or performing services in the
construction industry.
4. A sole proprietor who engages in the construction industry and a partner or
partnership that is engaged in the construction industry.
The Act also provides specific instances of workers who do not meet the
definition of “employee.” Florida Statutes section 440.02(15) provides that the
term “employee” does not include:
1. An independent contractor who is not engaged in the construction industry.
2. A real estate licensee, if that person agrees, in writing, to perform for
remuneration solely by way of commission.
3. Bands, orchestras, and musical and theatrical performers, including disk
jockeys, performing in licensed premises as defined in Florida Statutes chapter
562, if a written contract evidencing an independent contractor relationship is
entered into before the commencement of such entertainment.
4. An owner-operator of a motor vehicle who transports property under a
written contract with a motor carrier which evidences a relationship by which
the owner-operator assumes the responsibility of an employer for the
performance of the contract, if the owner-operator is required to furnish the
necessary motor vehicle equipment and all costs incidental to the performance
of the contract, including, but not limited to, fuel, taxes, licenses, repairs, and
hired help; and the owner-operator is paid a commission for transportation
service and is not paid by the hour or on some other time-measured basis.
5. A person whose employment is both casual and not in the course of the
trade, business, profession, or occupation of the employer.
6. A volunteer, except a volunteer worker for the state or a county,
municipality, or other governmental entity. We discuss volunteers in their own
subsection below.
7. Any officer of a corporation who elects to be exempt from this chapter,
unless that officer was prohibited from filing that election. If not prohibited,
then such officer is not an employee for any reason under this chapter until a
notice of revocation of election filed pursuant to Florida Statutes section 440.05
is effective.
8. An officer of a corporation that is engaged in the construction industry who
elects to be exempt from the provisions of this chapter, as otherwise permitted
by this chapter. Such officer is not an employee for any reason until the notice
of revocation of election filed pursuant to Florida Statutes section 440.05 is
effective.
9. An exercise rider who does not work for a single horse farm or breeder, and
who is compensated for riding on a case-by-case basis, provided a written
contract is entered into prior to the commencement of such activity which
evidences that an employee/employer relationship does not exist.
10. A taxicab, limousine, or other passenger vehicle-for-hire driver who
operates said vehicles pursuant to a written agreement with a company which
provides any dispatch, marketing, insurance, communications, or other services
under which the driver and any fees or charges paid by the driver to the
company for such services are not conditioned upon, or expressed as a
proportion of, fare revenues.
11. A person who performs services as a sports official for an entity sponsoring
an interscholastic sports event or for a public entity or private, nonprofit
organization that sponsors an amateur sports event.
12. Medicaid-enrolled clients under Florida Statutes chapter 393 who are
excluded from the definition of employment under Florida Statutes section
443.1216(4)(d) and served by Adult Day Training Services under the Home and
Community-Based Medicaid Waiver program in a sheltered workshop setting
licensed by the United States Department of Labor for the purpose of training
and earning less than the federal hourly minimum wage.
Note that, in both the Act’s definition of who is an “employee” and who is not,
the Act makes reference to the idea of an “independent contractor.” This term
bears a specific definition in workers’ compensation. We explore that definition
in the next subsection.
Likewise, the term “volunteer” bears a specific definition under workers’
compensation, which we discuss in its own subsection below.
Many workers not covered by workers’ compensation are well aware of the
lack of coverage due to the Act’s notice requirements. When an employer does
not elect to provide workers’ compensation coverage and that employer is
permitted by law to do so, then that employer is obliged to “post clear written
notice in a conspicuous location at each work site . . . .”
4. Are Independent Contractors Covered under Florida Workers’
Compensation?
Generally speaking, independent contractors are not covered under the Florida
Workers’ Compensation Act unless the independent contractor works in the
construction industry. In order to meet the Act’s definition of “independent
contractor,” at least 4 of the following criteria must be met:
(I) The independent contractor maintains a separate business with his or her
own work facility, truck, equipment, materials, or similar accommodations;
(II) The independent contractor holds or has applied for a federal employer
identification number, unless the independent contractor is a sole proprietor
who is not required to obtain a federal employer identification number under
state or federal regulations;
(III) The independent contractor receives compensation for services rendered
or work performed and such compensation is paid to a business rather than to
an individual;
(IV) The independent contractor holds one or more bank accounts in the name
of the business entity for purposes of paying business expenses or other
expenses related to services rendered or work performed for compensation;
(V) The independent contractor performs work or is able to perform work for
any entity in addition to or besides the employer at his or her own election
without the necessity of completing an employment application or process; or
(VI) The independent contractor receives compensation for work or services
rendered on a competitive-bid basis or completion of a task or a set of tasks as
defined by a contractual agreement, unless such contractual agreement
expressly states that an employment relationship exists.
If four of the criteria listed in (I) through (VI) above do not exist, an individual
may still be presumed to be an independent contractor and not an employee
based on full consideration of the nature of the individual situation with regard
to satisfying any of the following conditions:
(i) The independent contractor performs or agrees to perform specific services
or work for a specific amount of money and controls the means of performing
the services or work.
(ii) The independent contractor incurs the principal expenses related to the
service or work that he or she performs or agrees to perform.
(iii) The independent contractor is responsible for the satisfactory completion of
the work or services that he or she performs or agrees to perform.
(iv) The independent contractor receives compensation for work or services
performed for a commission or on a per-job basis and not on any other basis.
(v) The independent contractor may realize a profit or suffer a loss in
connection with performing work or services.
(vi) The independent contractor has continuing or recurring business liabilities
or obligations.
(vii) The success or failure of the independent contractor's business depends
on the relationship of business receipts to expenditures.
5. Are Volunteers Covered under Florida Workers’ Compensation?
Florida Workers’ Compensation coverage does not extend to a volunteer
except a volunteer worker for the state or a county, municipality, or other
governmental entity. A person who does not receive monetary remuneration
for services is presumed to be a volunteer unless there is substantial evidence
that a valuable consideration was intended by both the employer and the
employee.
For purposes of workers’ compensation, the term “volunteer” includes, but is
not limited to:
a. Persons who serve in private nonprofit agencies and who receive no
compensation other than expenses in an amount less than or equivalent to the
standard mileage and per diem expenses provided to salaried employees in
the same agency or, if such agency does not have salaried employees who
receive mileage and per diem, then such volunteers who receive no
compensation other than expenses in an amount less than or equivalent to the
customary mileage and per diem paid to salaried workers in the community as
determined by the department; and
b. Volunteers participating in federal programs established under Florida Public
Law Number 93-113.
A specific provision in the Act provides coverage for volunteer firefighters
responding to or assisting with fire or medical emergencies whether or not the
firefighters are on duty.
6. Are Officers and Directors of Corporations Covered by Florida Workers’
Compensation?
Officers or directors of organizations are covered by workers’ compensation if
that officer or director is also an employee. Under a special provision of the
Florida Workers' Compensation Act, the term “employee” includes any person
who is an officer of a corporation and who performs services for remuneration
for such corporation within this state, whether or not such services are
continuous. Services are presumed to have been rendered to the corporation
if the officer is compensated by other than dividends upon shares of stock of
the corporation which the officer owns.
Any officer of a corporation may elect to be exempt from this chapter by filing a
written notice of the election with the State of Florida Department of Financial
Services as provided in Florida Statutes section 440.05. As to officers of a
corporation who are engaged in the construction industry, no more than three
officers of a corporation or of any group of “affiliated corporations” may elect
to be exempt. Officers must be shareholders, each owning at least 10 percent
of the stock of such corporation and listed as an officer of such corporation with
the Division of Corporations of the Florida Department of State, in order to
elect exemptions.
An officer of a corporation who elects properly to be exempt by filing the
written notice of the election is not an employee and therefore not covered by
Florida workers’ compensation. An officer of a corporation who is permitted to
elect an exemption under Florida’s workers’ compensation Act and who elects
to be exempt from the provisions of that Act may not recover benefits under
the Act. Every corporate officer who elects to reject the Act shall, in any action
to recover damages for injury or death brought against the corporate
employer, proceed as at common law, and the employer in such suit may avail
itself of all defenses that exist at common law.
7. Can the Employer Charge the Employees for Providing Florida Workers’
Compensation Coverage?
Any agreement by an employee is invalid and unenforceable if the employee
agrees to pay any portion of premium paid by her or his employer to a workers’
compensation insurance carrier or to contribute to a benefit fund or
department maintained by the employer for the purpose of providing workers’
compensation or medical services and supplies as required by Florida’s
workers’ compensation Act. Likewise, any pre-injury agreement by an
employee to waive her or his right to compensation under Florida’s workers’
compensation Act is invalid.
8. What Does Workers’ Compensation Immunity Mean as Applied to an
Employer?
Florida’s workers’ compensation Act provides that the liability of an employer
shall be exclusive and in place of all other liability, including vicarious liability, of
such employer to any third-party tortfeasor and to the employee, the legal
representative thereof, husband or wife, parents, dependents, next of kin, and
anyone otherwise entitled to recover damages from such employer at law or in
admiralty on account of such injury or death, except in the case of the
employer’s failure to carry workers’ compensation coverage, or in certain
instances involving an employer’s intentional tort. These two exceptions are
described below.
Under the first exception, if an employer fails to secure payment of
compensation as required by this chapter, an injured employee, or the legal
representative thereof in case death results from the injury, may elect to claim
compensation under this chapter or to maintain an action at law or in admiralty
for damages on account of such injury or death. In such action the defendant
may not plead as a defense that the injury was caused by negligence of a
fellow employee, that the employee assumed the risk of the employment, or
that the injury was due to the comparative negligence of the employee.
The second exception is when an employer commits an intentional tort that
causes the injury or death of the employee. For purposes of this exception, an
employer's actions shall be deemed to constitute an intentional tort and not an
accident only when the employee proves, by clear and convincing evidence,
that:
1. The employer deliberately intended to injure the employee; or
2. 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.
The immunity from liability provided to employers also extends to county
governments with respect to employees of county constitutional officers whose
offices are funded by the board of county commissioners.
Note that the employer’s immunity will not shield him from retaliatory discharge
claims. The Act specifically provides that “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.”
9. What Does Workers’ Compensation Immunity Mean as Applied to a Co-
Worker or Fellow Employee?
The same immunities from liability enjoyed by an employer shall extend as well
to each employee of the employer when such employee is acting in furtherance
of the employer's business. Such fellow-employee immunities shall not be
applicable to an employee who acts, with respect to a fellow employee, with
willful and wanton disregard or unprovoked physical aggression or with gross
negligence when such acts result in injury or death or such acts proximately
cause such injury or death, nor shall such immunities be applicable to
employees of the same employer when each is operating in the furtherance of
the employer's business but they are assigned primarily to unrelated works
within private or public employment.
10. What Does Workers’ Compensation Immunity Mean as Applied to
Managers, Officers or Directors?
The same immunity provisions enjoyed by an employer shall also apply to any
sole proprietor, partner, corporate officer or director, supervisor, or other
person who in the course and scope of his or her duties acts in a managerial or
policymaking capacity and the conduct which caused the alleged injury arose
within the course and scope of said managerial or policymaking duties and was
not a violation of a law, whether or not a violation was charged, for which the
maximum penalty which may be imposed does not exceed 60 days'
imprisonment as set forth in Florida Statutes section 775.082.
11. What Does Workers’ Compensation Immunity Mean as Applied to an
Employee Leasing Company, a Professional Employer Organization
(“PEO”), a Help Supply Services Company, or Any Organization Providing
Safety Inspections?
The immunity from liability for workers’ compensation employers shall extend to
an employer and to each employee of the employer which utilizes the services
of the employees of a help supply services company, as set forth in Standard
Industry Code Industry Number 7363, when such employees, whether
management or staff, are acting in furtherance of the employer's business. An
employee so engaged by the employer shall be considered a borrowed
employee of the employer, and, for the purposes of workers’ compensation
immunity, shall be treated as any other employee of the employer. The
employer shall be liable for and shall secure the payment of compensation to
all such borrowed employees, except when such payment has been secured by
the help supply services company.
An employer's workers' compensation carrier, servicing agent, or safety
consultant shall not be liable as a third-party tortfeasor to employees of the
employer or employees of its subcontractors for assisting the employer and its
subcontractors, if any, in carrying out the employer's rights and responsibilities
under Florida’s workers’ compensation Act by furnishing any safety inspection,
safety consultative service, or other safety service incidental to the workers'
compensation or employers' liability coverage or to the workers' compensation
or employer's liability servicing contract. Without limitation, a safety consultant
may include an owner, as defined in Florida Statutes chapter 713, or an
owner's related, affiliated, or subsidiary companies and the employees of
each. This immunity shall not apply in any case in which injury or death is
proximately caused by the willful and unprovoked physical aggression, or by
the negligent operation of a motor vehicle, by employees, officers, or directors
of the employer's workers' compensation carrier, service agent, or safety
consultant.
Notwithstanding the provisions of Florida Statutes section 624.155, the liability
of a carrier to an employee or to anyone entitled to bring suit in the name of
the employee shall be as provided in this chapter, which shall be exclusive and
in place of all other liability.
12. What Qualifies as a Compensable Accident and Injury under Florida
Workers’ Compensation?
The employer must pay compensation or furnish benefits required by the
Florida Workers’ Compensation Act if the employee suffers an accidental
compensable injury or death arising out of work performed in the course and
the scope of employment. The Act defines “injury,” in pertinent part, as
“personal injury ... by accident arising out of and in the course of
employment.” Under the Act, “[t]he concept of accidental injury is founded
upon unexpectedness in either cause or result. . . .” The Florida Workers'
Compensation Act defines the term “accident” as follows:
“Accident” means only an unexpected or unusual event or result that happens
suddenly. Disability or death due to the accidental acceleration or aggravation
of a venereal disease or of a disease due to the habitual use of alcohol or
controlled substances or narcotic drugs, or a disease that manifests itself in
the fear of or dislike for an individual because of the individual's race, color,
religion, sex, national origin, age, or handicap is not an injury by accident
arising out of the employment. Subject to s. 440.15(5), if a preexisting disease
or anomaly is accelerated or aggravated by an accident arising out of and in
the course of employment, only acceleration of death or acceleration or
aggravation of the preexisting condition reasonably attributable to the accident
is compensable, with respect to any compensation otherwise payable under
this chapter. An injury or disease caused by exposure to a toxic substance,
including, but not limited to, fungus or mold, is not an injury by accident arising
out of the employment unless there is clear and convincing evidence
establishing that exposure to the specific substance involved, at the levels to
which the employee was exposed, can cause the injury or disease sustained
by the employee.
The Act’s definition of “accident” has remained relatively stable and largely
unchanged over the years, with perhaps the most thorough alterations being
made only recently. Effective for all dates of accident on or after October 1,
2003, the definition of accident in 440.02(1) was amended. It struck from the
exclusions of things that are not an injury by accident an injury consisting of “a
mental or nervous injury due to stress, fright, or excitement only.” The
definition of the acceleration or aggravation of a pre-existing disease or
anomaly now specifically references F.S.A. § 440.15(5). The definition now
further provides that “an injury or disease caused by exposure to a toxic
substance, including, but not limited to, fungus or mold, is not an injury by
accident arising out of the employment unless there is clear and convincing
evidence establishing that exposure to the specific substance involved, at the
levels to the which the employee was exposed, can cause the injury or disease
sustained by the employee.”
13. What If the Workplace Caused Injury but There Was No Accident?
Due in part to the premise that “[t]he concept of accidental injury is founded
upon unexpectedness in either cause or result,” many injuries caused by the
workplace are compensable under Florida’s workers’ compensation Act despite
the lack of a finite, specific event that most observers would consider to be a
“literal accident.” Examples can include internal failures such as heart attacks
and strokes, repetitive traumas such as carpal tunnel and degeneration of
discs and bone, occupational diseases such as hepatitis and sinusitus, and
harmful exposures such as black lung and asbestosis. In order to avoid
transforming the workers’ compensation Act into a general health insurance
policy, the law imposes elements of proof for compensability of these
conditions. The burdens of proof for, and the defenses against, such
occupational diseases, repetitive traumas and exposures are covered in Patrick
John McGinley, Florida Workers’ Compensation, 9 Florida Practice Series
sections 8:1 through 8:15 (Thomson-West 2006 edition).
14. Does Workers’ Compensation Cover Internal Failures Such as Heart
Attacks, Strokes, Hernias, and Cardiovascular Problems?
For internal failures such as heart attacks, cardiovascular ailments, strokes,
hernias, and the like, the “Victor Wine test” provides the elements of proof
imposed upon the employee who suffers from a relevant pre-existing medical
condition, and the “Zundell standard” provides the elements of proof for the
claimant who did not have a pre-existing condition. Under the “Zundell
standard”, an internal failure is compensable upon the claimant’s proof that the
failure was “a physical injury arising from a workplace exertion and was not
attributable to any ascertainable preexisting condition.” For example, a
claimant in perfect health has proven a compensable internal failure by
showing that while doing routine lifting at work he suffered a hernia during a
lift. Similarly, a school teacher without evident prior cardiovascular problems
proved a compensable internal failure when his doctor testified that the stress
of an unruly student caused his brain hemorrhage. Both these examples, of
course, assume that the claimant met her initial burden under Zundell to
demonstrate the absence of any relevant preexisting condition. On the
contrary, the rule of law announced in Victor Wine was intended to deal with
the peculiar problem that arises when a worker's compensation claimant
suffers an internal failure on the job that appears at least partly to have been
caused by a relevant preexisting medical condition. Under Victor Wine, a
claimant whose injury may have been exacerbated by such a preexisting
condition bears the additional burden of proving that the injury occurred
because of a specifically identifiable job-related exertion over and above
normal working conditions. Note that the “Victor Wine Test” requirement of an
unusual stress or strain means the claimant will have to show a causal nexus
between her injury and some specifically identifiable physical activity, whereas
the “Zundell standard” may be met by stress alone. Examples under the
“Victor Wine test” of such specifically identifiable efforts not routine to a
claimant’s job that sufficiently proved the requisite “unusual stress or strain”
include falling from a flatbed truck, the employee’s fright from having a snake
thrown at him by a co-worker, climbing a 20-foot stack of plywood in lieu of a
ladder while installing wiring, and similar events. Examples of things held
insufficient under the “Victor Wine test” to create compensability of an internal
failure include emotional stress without physical exertion, proof that a
workday was particularly arduous but not that it involved an unusual stress or
strain, and similar events. For a thorough review of case law examples of
sufficient and insufficient factual scenarios, please see Patrick John McGinley,
Florida Workers’ Compensation, 9 Florida Practice Series, Chapter 7 (Thomson-
West’s Florida Practice Series 2006 edition).
15. What if the Worker Caused his Own Accident?
Workers’ compensation in Florida may be called a “no-fault” system. Florida’s
workers’ compensation Act provides that compensation shall be payable
irrespective of fault as a cause for the injury, except that no workers’
compensation benefits are payable if the employee’s injury was occasioned
primarily by the willful intention of the employee to injure or kill himself, herself,
or another; and no workers’ compensation benefits are payable if the
employee’s injury was occasioned primarily by the intoxication of the employee
or by the influence of any drugs, barbiturates, or other stimulants not
prescribed by a physician.
If injury is caused by the knowing refusal of the employee to use a safety
appliance or observe a safety rule required by statute or lawfully adopted by
the department, and brought prior to the accident to the employee's
knowledge, or if injury is caused by the knowing refusal of the employee to use
a safety appliance provided by the employer, the employee’s workers’
compensation benefits shall be reduced by 25 percent.
16. What if a Third Party Tortfeasor Caused the Employee’s Workplace
Accident?
If an employee is injured or killed in the course of his or her employment by the
negligence or wrongful act of a third-party tortfeasor, such injured employee
or, in the case of his or her death, the employee's dependents may accept
compensation benefits from his employer under the provisions of Florida’s
workers’ compensation Act, and at the same time such injured employee or his
or her dependents or personal representatives may pursue his or her remedy
by action at law or otherwise against the third-party tortfeasor.
If the employee or his or her dependents accept compensation or other
benefits under Florida’s workers’ compensation Act (or begin proceedings
seeking such benefits), the employer or, in the event the employer is insured
against liability hereunder, the employer’s insurer shall be subrogated to the
rights of the employee or his or her dependents against such third-party
tortfeasor. If the injured employee or his or her dependents recovers from a
third-party tortfeasor by judgment or settlement, either before or after the
filing of suit, before the employee has accepted compensation or other benefits
under this chapter or before the employee has filed a written claim for
compensation benefits, the amount recovered from the tortfeasor shall be set
off against any compensation benefits other than for remedial care, treatment
and attendance as well as rehabilitative services. The amount of such offset
shall be reduced by the amount of all court costs expended in the prosecution
of the third-party suit or claim, including reasonable attorney fees for the
plaintiff's attorney.
In all claims or actions at law against a third-party tortfeasor, the employee, or
his or her dependents or those entitled by law to sue in the event he or she is
deceased, shall sue for the employee individually and for the use and benefit of
the employer, if a self-insurer, or employer's insurance carrier, in the event
compensation benefits are claimed or paid; and such suit may be brought in
the name of the employee, or his or her dependents or those entitled by law to
sue in the event he or she is deceased, as plaintiff or, at the option of such
plaintiff, may be brought in the name of such plaintiff and for the use and
benefit of the employer or insurance carrier, as the case may be. Upon suit
being filed, the employer or the employer’s insurance carrier, as the case may
be, may file in the suit a notice of payment of compensation and medical
benefits to the employee or his or her dependents, which notice shall
constitute a lien upon any judgment or settlement recovered to the extent that
the court may determine to be their pro rata share for compensation and
medical benefits paid or to be paid under the provisions of this law, less their
pro rata share of all court costs expended by the plaintiff in the prosecution of
the suit including reasonable attorney's fees for the plaintiff's attorney. In
determining the employer's or carrier's pro rata share of those costs and
attorney's fees, the employer or carrier shall have deducted from its recovery a
percentage amount equal to the percentage of the judgment or settlement
which is for costs and attorney's fees. Subject to this deduction, the employer
or carrier shall recover from the judgment or settlement, after costs and
attorney's fees incurred by the employee or dependent in that suit have been
deducted, 100 percent of what it has paid and future benefits to be paid,
except, if the employee or dependent can demonstrate to the court that he or
she did not recover the full value of damages sustained, the employer or
carrier shall recover from the judgment or settlement, after costs and
attorney's fees incurred by the employee or dependent in that suit have been
deducted, a percentage of what it has paid and future benefits to be paid
equal to the percentage that the employee's net recovery is of the full value of
the employee's damages.
If the injured employee or his or her dependents, as the case may be, fail to
bring suit against such third-party tortfeasor within 1 year after the cause of
action thereof has accrued, the employer, if a self-insurer, and if not, the
insurance carrier, may, after giving 30 days' notice to the injured employee or
his or her dependents and the injured employee's attorney, if represented by
counsel, institute suit against such third-party tortfeasor, and, in the event suit
is so instituted, shall be subrogated to and entitled to retain from any
judgment recovered against, or settlement made with, such third party, the
following: All amounts paid as compensation and medical benefits under the
provisions of this law and the present value of all future compensation benefits
payable, to be reduced to its present value, and to be retained as a trust fund
from which future payments of compensation are to be made, together with all
court costs, including attorney's fees expended in the prosecution of such suit,
to be prorated as provided in the paragraph above. The remainder of the
moneys derived from such judgment or settlement shall be paid to the
employee or his or her dependents, as the case may be.
If the carrier or employer does not bring suit within 2 years following the
accrual of the cause of action against a third-party tortfeasor, the right of
action shall revert to the employee or, in the case of the employee's death,
those entitled by law to sue.
17. What if the Worker was Drunk on Alcohol or High on Drugs when He
Had His Accident?
No workers’ compensation benefits are payable if the employee’s injury was
occasioned primarily by the intoxication of the employee or by the influence of
any drugs, barbiturates, or other stimulants not prescribed by a physician.
To ensure that the workplace is a drug-free environment and to deter the use
of drugs and alcohol at the workplace, if the employer has reason to suspect
that the injury was occasioned primarily by the intoxication of the employee or
by the use of any drug, as defined in this chapter, which affected the employee
to the extent that the employee's normal faculties were impaired, and the
employer has not implemented a drug-free workplace pursuant to Florida
Statutes sections 440.101 and 440.102, the employer may require the
employee to submit to a test for the presence of any or all drugs or alcohol in
his or her system. If the injured worker refuses to submit to a drug test, it
shall be presumed in the absence of clear and convincing evidence to the
contrary that the injury was occasioned primarily by the influence of drugs.
Drug test results have the following legal effect under Florida’s workers’
compensation Act:
If the employee has, at the time of the injury, a blood alcohol level equal to or
greater than the level specified in Florida Statutes section 316.193, or if the
employee has a positive confirmation of a drug as defined in this Act, it is
presumed that the injury was occasioned primarily by the intoxication of, or by
the influence of the drug upon, the employee. If the employer has implemented
a drug-free workplace, this presumption may be rebutted only by evidence that
there is no reasonable hypothesis that the intoxication or drug influence
contributed to the injury. In the absence of a drug-free workplace program,
this presumption may be rebutted by clear and convincing evidence that the
intoxication or influence of the drug did not contribute to the injury. Percent by
weight of alcohol in the blood must be based upon grams of alcohol per 100
milliliters of blood. If the results are positive, the testing facility must maintain
the specimen for a minimum of 90 days. Blood serum may be used for testing
purposes under this chapter; however, if this test is used, the presumptions
under this section do not arise unless the blood alcohol level is proved to be
medically and scientifically equivalent to or greater than the comparable blood
alcohol level that would have been obtained if the test were based on percent
by weight of alcohol in the blood.
However, if, before the accident, the employer had actual knowledge of and
expressly acquiesced in the employee's presence at the workplace while under
the influence of such alcohol or drug, the presumptions specified in the above-
quoted subsection do not apply. As a part of rebutting any presumptions that
arise under the above-quoted subsection, the injured worker must prove the
actual quantitative amounts of the drug or its metabolites as measured on the
initial and confirmation post-accident drug tests of the injured worker's urine
sample and provide additional evidence regarding the absence of drug
influence other than the worker's denial of being under the influence of a drug.
No drug test conducted on a urine sample shall be rejected on the basis of the
urine being bodily fluid tested.
18. What if More than One Employer (or More than One Insurance
Company) Is Liable for the Employee’s Workplace Accident?
When there is any controversy as to which of two or more carriers is liable for
the discharge of the obligations and duties of one or more employers with
respect to a claim for compensation, remedial treatment, or other benefits
under Florida’s workers’ compensation Act, the Judge of Compensation Claims
shall have jurisdiction to adjudicate such controversy. If one of the insurance
carriers voluntarily or in compliance with a compensation order makes
payments in discharge of its alleged workers’ compensation liability and it is
finally determined that another carrier is liable for all or any part of such
obligations and duties with respect to that claim, then the carrier which has
made payments either voluntarily or in compliance with a compensation order
shall be entitled to reimbursement from the carrier finally determined liable,
and the judge of compensation claims shall have jurisdiction to order such
reimbursement. However, if the carrier finally determined liable can
demonstrate that it has been prejudiced by lack of knowledge or notice of its
potential liability, such reimbursement shall be only with respect to payments
made after it had knowledge or notice of its potential liability.
19. What Causation Requirements Apply in Workers’ Compensation?
The injury, its occupational cause, and any resulting manifestations or disability
must be established to a reasonable degree of medical certainty, based on
objective relevant medical findings, and the accidental compensable injury must
be the “major contributing cause” of any resulting injuries. As defined in
Florida’s workers’ compensation Act, “major contributing cause” means the
cause which is more than 50 percent responsible for the injury as compared to
all other causes combined for which treatment or benefits are sought. Major
contributing cause must be demonstrated by medical evidence only.
In cases involving occupational disease or repetitive exposure, both causation
and sufficient exposure to support causation must be proven by clear and
convincing evidence.
Pain or other subjective complaints alone, in the absence of objective relevant
medical findings, are not compensable. The Act defines “objective relevant
medical findings” are those objective findings that correlate to the subjective
complaints of the injured employee and are confirmed by physical examination
findings or diagnostic testing.
Establishment of the causal relationship between a compensable accident and
injuries for conditions that are not readily observable must be by medical
evidence only, as demonstrated by physical examination findings or diagnostic
testing.
Injuries caused by a subsequent intervening accident arising from an outside
agency which are the direct and natural consequence of the original injury are
not compensable unless suffered while traveling to or from a health care
provider for the purpose of receiving remedial treatment for the compensable
injury.
20. Where Must the Accident Take Place in Order to be Compensable?
Generally, the employer must pay compensation or furnish benefits if the
employee suffers an accidental compensable injury or death arising out of work
performed in the course and the scope of employment. As the following
explains, the accident need not be on the employer’s premises, or even within
the state of Florida, in order to be compensable under Florida’s Workers’
Compensation Act.
An injury suffered while going to or coming from work is not an injury arising
out of and in the course of employment (whether or not the employer provided
transportation) if such means of transportation was available for the exclusive
personal use by the employee, unless the employee was engaged in a special
errand or mission for the employer.
An employee who is injured while deviating from the course of employment,
including leaving the employer's premises, is not eligible for benefits unless
such deviation is expressly approved by the employer, or unless such deviation
or act is in response to an emergency and designed to save life or property.
An employee who is required to travel in connection with his or her
employment who suffers an injury while in travel status shall be eligible for
benefits under this chapter only if the injury arises out of and in the course of
employment while he or she is actively engaged in the duties of employment.
This applies to travel necessarily incident to performance of the employee's job
responsibility but does not include travel to and from work.
Recreational or social activities are not compensable unless such recreational
or social activities are an expressly required incident of employment and
produce a substantial direct benefit to the employer beyond improvement in
employee health and morale that is common to all kinds of recreation and
social life.
If an accident happens while the employee is employed elsewhere than in
Florida, which would entitle the employee or his or her dependents to
compensation if it had happened in Florida, then the employee or his or her
dependents are entitled to compensation if the contract of employment was
made in Florida, or the employment was principally localized in Florida.
However, if an employee receives compensation or damages under the laws of
any other state, the total compensation for the injury may not be greater than
is provided under the Florida workers’ compensation Act.
Special consideration is granted to firefighters, paramedics, EMT’s and law
enforcement officers that expand the time and place where they are covered
under Florida’s Workers’ Compensation Act. The Act provides:
(1) If an employee:
(a) Is elected, appointed, or employed full time by a municipality, the state, or
any political subdivision and is vested with authority to bear arms and make
arrests and the employee's primary responsibility is the prevention or detection
of crime or the enforcement of the penal, criminal, traffic, or highway laws of
the state;
(b) Was discharging that primary responsibility within the state in a place and
under circumstances reasonably consistent with that primary responsibility;
and
(c) Was not engaged in services for which he or she was paid by a private
employer, and the employee and his or her public employer had no agreement
providing for workers' compensation coverage for that private employment;
the employee is considered to have been acting within the course of
employment. The term “employee” as used in this subsection includes all
certified supervisory and command personnel whose duties include, in whole or
in part, responsibilities for the supervision, training, guidance, and
management of full-time law enforcement officers, part-time law enforcement
officers, or auxiliary law enforcement officers but does not include support
personnel employed by the employing agency.
(2) If a firefighter as defined by Florida Statutes section 112.191(1)(b) is
engaged in extinguishing a fire, or protecting and saving life or property due to
a fire in this state in an emergency, and such activities would be considered to
be within the course of his or her employment as a firefighter and covered by
the employer's workers' compensation coverage except for the fact that the
firefighter was off duty or that the location of the fire was outside the
employer's jurisdiction or area of responsibility, such activities are considered
to be within the course of employment. This subsection does not apply if the
firefighter is performing activities for which he or she is paid by another
employer or contractor.
(3) If an emergency medical technician or paramedic is appointed or employed
full time by a municipality, the state, or any political subdivision, is certified
under Florida Statutes chapter 401, is providing basic life support or advanced
life support services, as defined in Florida Statutes section 401.23, in an
emergency situation in this state, and such activities would be considered to
be within the course of his or her employment as an emergency medical
technician or paramedic and covered by the employer's workers' compensation
coverage except for the fact that the location of the emergency was outside of
the employer's jurisdiction or area of responsibility, such activities are
considered to be within the course of employment. The provisions of this
subsection do not apply if the emergency medical technician or paramedic is
performing activities for which he or she is paid by another employer or
contractor.
Obviously, the above-quoted statutes make law enforcement officers,
paramedics, EMT’s and firefighters covered as being within the course of their
employment even if they are suddenly called to perform their duty on a day off
or other situation where they did not first report to work. Another, separate
statute puts law enforcement officers “on the job” even while they drive to
work and it reads:
"Notwithstanding any other provisions of law to the contrary, an injury to a law
enforcement officer as defined in Florida Statutes section 943.10(1), during the
officer's work period or while going to or coming from work in an official law
enforcement vehicle, shall be presumed to be an injury arising out of and in the
course of employment unless the injury occurred during a distinct deviation for
a nonessential personal errand. If, however, the employer's policy or the
collective bargaining agreement that applies to the officer permits such
deviations for nonessential errands, the injury shall be presumed to arise out
of and in the course of employment."
21. Who Must the Worker Inform in Order to Preserve his Rights Under
Workers’ Compensation?
An employee must provide notice of his injury to his employer within 30 days of
his accident. However, there are a few exceptions: the employer or the
employer’s agent had actual knowledge of the accident, the injury could not be
identified without a medical opinion, an employer with four or fewer employees
did not inform the employee that no workers’ compensation benefits were
available, or exceptional circumstances. An employee must provide the
employer notice of an occupational disease within 90 days. An employee
provides adequate notice of his injury when he or she informs the person that
they reasonably believe to be their supervisor of the accident or injury.
22. What Injuries, Conditions and Ailments are Covered Under Florida
Workers’ Compensation?
Generally, Florida’s workers’ compensation Act provides coverage for all
injuries, conditions and ailments that result from “an accidental compensable
injury or death arising out of work performed in the course and the scope of
employment.”
Even preexisting problems may be covered in whole or in part by workers’
compensation. If an injury arising out of and in the course of employment
combines with a preexisting disease or condition to cause or prolong disability
or need for treatment, the employer must pay compensation or benefits
required by this chapter only to the extent that the injury arising out of and in
the course of employment is and remains more than 50 percent responsible for
the injury as compared to all other causes combined and thereafter remains
the major contributing cause of the disability or need for treatment. Major
contributing cause must be demonstrated by medical evidence only.
The Act does not require any compensation or benefits for any subsequent
injury the employee suffers as a result of an original injury arising out of and in
the course of employment unless the original injury is the “major contributing
cause” of the subsequent injury. As defined in Florida’s workers’ compensation
Act, “major contributing cause” means the cause which is more than 50 percent
responsible for the injury as compared to all other causes combined for which
treatment or benefits are sought. Major contributing cause must be
demonstrated by medical evidence only.
Florida’s workers’ compensation Act addresses the circumstance of a mental or
nervous injury and draws a line between those injuries caused by a physical
injury versus those caused by stress, fright or excitement only. Nothing in
Florida’s workers’ compensation Act permits the payment of benefits for mental
or nervous injuries without an accompanying physical injury requiring medical
treatment. Therefore, a mental or nervous injury due to stress, fright, or
excitement only is not an injury by accident and generally is not compensable.
Likewise, a physical injury resulting from mental or nervous injuries
unaccompanied by physical trauma are not compensable under the Act. It
must be that the mental or nervous injury results from the physical injury in
order for the mental or nervous injury to be covered under the Florida Workers'
Compensation Law.
Mental or nervous injuries occurring as a manifestation of a compensable
physical injury must be proven by clear and convincing medical evidence from a
licensed psychiatrist meeting the criteria established in the most recent edition
of the diagnostic and statistical manual of mental disorders published by the
American Psychiatric Association. The compensable physical injury must be and
remain the major contributing cause of the mental or nervous condition and the
compensable physical injury as determined by reasonable medical certainty
must be at least 50 percent responsible for the mental or nervous condition as
compared to all other contributing causes combined.
Workers’ compensation is not payable in Florida for the mental, psychological,
or emotional injury arising out of depression from being out of work or losing
employment opportunities, resulting from a preexisting mental, psychological,
or emotional condition or due to pain or other subjective complaints that
cannot be substantiated by objective, relevant medical findings.
23. What Medical Benefits are Provided under Workers’ Compensation?
Florida’s workers’ compensation Act requires that the employer shall furnish to
the employee such medically necessary remedial treatment, care, and
attendance for such period as the nature of the injury or the process of
recovery may require, durable medical equipment, prostheses, and other
medically necessary apparatus. Remedial treatment, care, and attendance,
including work-hardening programs or pain-management programs accredited
by the Commission on Accreditation of Rehabilitation Facilities or Joint
Commission on the Accreditation of Health Organizations or pain-management
programs affiliated with medical schools, shall be considered as covered
treatment only when such care is given based on a referral by a physician.
Medically necessary treatment, care, and attendance does not include
chiropractic services in excess of 24 treatments or rendered 12 weeks beyond
the date of the initial chiropractic treatment, whichever comes first, unless the
carrier authorizes additional treatment or the employee is catastrophically
injured.
24. What Benefits are Provided under Workers’ Compensation When the
Accident Results in the Death of the Employee?
In the case of an employee’s death from an occupational disease, death
benefits are payable if the death occurs within 350 weeks of the last injurious
exposure to the occupational disease. In the case of an accident that is not an
occupational disease, benefits are payable if death results within 1 year
thereafter or follows continuous disability and results from the accident within
5 years thereafter.
Possible death benefits include funeral expenses, spousal re-education
benefits, and indemnity payment to dependents of the deceased employee.
The employer shall pay actual funeral expenses not to exceed $7,500.00 within
14 days after receiving the bill. The estate of a deceased worker is entitled to
collect wage-loss benefits (such as Temporary Total Disability and Temporary
Partial Disability) to which the deceased worker was entitled during his life.
The surviving spouse is entitled to payment of postsecondary student fees for
instruction at any career center established under Florida Statutes section
1001.44 for up to 1,800 classroom hours or payment of student fees at any
community college established under part III of Florida Statutes chapter 1004
for up to 80 semester hours. These spousal re-education benefits shall be in
addition to other benefits provided for in this section and shall terminate 7
years after the death of the deceased employee, or when $150,000.00 in
indemnity death benefits has been received. To qualify for the spousal re-
educational benefit, the spouse shall be required to meet and maintain the
regular admission requirements of, and be registered at, such career center or
community college, and make satisfactory academic progress as defined by the
educational institution in which the student is enrolled.
Additionally, those who were dependents of the deceased employee have
workers’ compensation claims of their own against the employer and will share
percentages of a lump sum of financial compensation that shall not exceed
$150,000.00 total per accident. The following individuals, if they can prove to
the Judge of Compensation Claims that they were dependent upon the
deceased employee for financial support, may have a claim to a percentage of
the $150,000.00 in death benefits:
1. A “child” of the deceased, which under the definitions in Florida’s workers’
compensation Act includes a posthumous child, a child legally adopted prior to
the injury of the employee, and a stepchild or acknowledged child born out of
wedlock dependent upon the deceased, but does not include married children
unless wholly dependent on the employee.
2. A “grandchild” of the deceased, which under the definitions in Florida’s
workers’ compensation Act means a child as above defined of a child as above
defined.
3. A “Brother” and “sister” of the deceased, which under the definitions in
Florida’s workers’ compensation Act includes stepbrothers and stepsisters, half
brothers and half sisters, and brothers and sisters by adoption, but does not
include married brothers or married sisters unless wholly dependent on the
employee.
Relationship to the deceased giving right to compensation under these
definitions must have existed at the time of the accident, save only in the case
of after-born children of the deceased. Note that a “child,” “grandchild,”
“brother,” and “sister” include only persons who at the time of the death of the
deceased employees are under 18 years of age, or under 22 years of age if a
full-time student in an accredited educational institution.
For those who meet the definitions above with regard to their relationship to
the deceased employee, and who additionally can prove financial dependence
upon the deceased employee at the time of the employee’s death, a maximum
of $150,000.00 is shared among them in the following order of preference, but
such compensation shall be a minimum of $20.00 per week and a maximum of
100% of the statewide average weekly wage, shall not exceed $150,000.00,
and may be less than, but shall not exceed, for all dependents or persons
entitled to compensation, 66 2/3 percent of the deceased employee’s average
wage:
1. To the spouse, if there is no child, 50 percent of the average weekly wage,
such compensation to cease upon the spouse's death.
2. To the spouse, if there is a child or children, 50 percent of the average
weekly wage (such compensation to cease upon the spouse's death) plus 16
2/3 percent on account of the child or children. However, when the deceased is
survived by a spouse and also a child or children, whether such child or children
are the product of the union existing at the time of death or of a former
marriage or marriages, the Judge of Compensation Claims may provide for the
payment of compensation in such manner as may appear to the Judge of
Compensation Claims just and proper and for the best interests of the
respective parties and, in so doing, may provide for the entire compensation to
be paid exclusively to the child or children; and, in the case of death of such
spouse, 33 1/3 percent for each child. However, upon the surviving spouse's
remarriage, the spouse shall be entitled to a lump-sum payment equal to 26
weeks of compensation at the rate of 50 percent of the statewide average
weekly wage, unless the $150,000.00 limit provided in this paragraph is
exceeded, in which case the surviving spouse shall receive a lump-sum
payment equal to the remaining available benefits in lieu of any further
indemnity benefits. In no case shall a surviving spouse's acceptance of a lump-
sum payment affect payment of death benefits to other dependents.
3. To the child or children, if there is no spouse, 33 1/3 percent for each child.
4. To the parents, 25 percent to each, such compensation to be paid during the
continuance of dependency.
5. To the brothers, sisters, and grandchildren, 15 percent for each brother,
sister, or grandchild.
Where a person or class of persons cannot receive the percentage of
compensation specified as payable to or on account of such person or class,
there shall be available to such person or class that proportion of such
percentage as, when added to the total percentage payable to all persons
having priority of preference, will not exceed a total of said 66 2/3 percent,
which proportion shall be paid:
(a) To such person; or
(b) To such class, share and share alike, unless the judge of compensation
claims determines otherwise.
If the judge of compensation claims determines that payments in accordance
with the scheme summarized above would provide no substantial benefit to
any person of such class, the judge of compensation claims may provide for the
payment of such compensation to the person or persons within such class who
the judge of compensation claims considers will be most benefited by such
payment. Upon the cessation of compensation to any person, the
compensation of the remaining persons entitled to compensation, for the
unexpired part of the period during which their compensation is payable, shall
be that which such persons would have received if they had been the only
persons entitled to compensation at the time of the decedent's death.
25. What Lost Wages and Indemnity Benefits are Provided under Workers’
Compensation?
Payment for lost wages under Florida’s workers’ compensation Act are called
either Temporary Total Disability, Temporary Partial Disability, Impairment
Benefits, or Permanent Total Disability, depending on when and why they are
paid. These benefits replace in whole or in part the payment of “wage loss
benefits” which were first deleted from the Act in part in 1993 and in whole in
2003.
When an employee’s injury takes him out of work completely but temporarily,
or stated somewhat differently, in a case of disability total in character but
temporary in quality, 66 2/3 percent of the employee’s average weekly wages
shall be paid to the employee during the continuance of that temporary total
disability, but not to exceed 104 weeks of benefits. Such benefits are called
“Temporary Total Disability” benefits. Once the employee reaches this
maximum number of weeks allowed, or if the employee reaches the date of
maximum medical improvement (whichever occurs earlier), temporary disability
benefits shall cease and the injured worker's permanent impairment shall be
determined.
When an employee’s injury temporarily takes him out of full duty work but not
completely out of work, or stated somewhat differently, in case of temporary
partial disability, compensation shall be equal to 80 percent of the difference
between 80 percent of the employee's average weekly wage and the salary,
wages, and other remuneration the employee is able to earn post-injury, as
compared weekly; however, weekly temporary partial disability benefits may
not exceed an amount equal to 66 2/3 percent of the employee's average
weekly wage at the time of accident. Such benefits are called “Temporary
Partial Disability” benefits. Note that the number of weeks of payment of
Temporary Partial Disability benefits, plus the number of weeks of payment of
Temporary Total Disability benefits, may not exceed a combined total of 104
weeks of benefits. Once the injured employee reaches the maximum number
of weeks, temporary disability benefits cease and the injured worker's
permanent impairment must be determined. The due date for the payment of
Temporary Partial Disability benefits differs depending on whether the
employee can return to that employer’s workplace within his temporary
restrictions. When an employee returns to work with the restrictions resulting
from the accident and is earning wages less than 80 percent of the pre-injury
average weekly wage, the first installment of temporary partial disability
benefits is due 7 days after the last date of the post-injury employer's first
biweekly work week; and thereafter, payment for temporary partial benefits
shall be paid biweekly no later than the 7th day following the last day of each
biweekly work week. If the employee is unable to return to work with the
restrictions resulting from the accident and is not earning wages, salary, or
other remuneration, temporary partial disability benefits shall be paid no later
than the last day of each biweekly period.
When an employee’s injury forever removes him from the workforce, or stated
somewhat differently, in a case of total disability adjudged to be permanent,
66 2/3 percent of the employee’s average weekly wages shall be paid to the
employee during the continuance of such permanent, total disability. Such
benefits are called “Permanent Total Disability” benefits. No compensation
shall be payable for Permanent Total Disability if the employee is engaged in,
or is physically capable of engaging in, at least sedentary employment. In the
following cases, an injured employee is presumed to be permanently and
totally disabled unless the employer or carrier establishes that the employee is
physically capable of engaging in at least sedentary employment within a 50-
mile radius of the employee's residence:
1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of
use of that appendage;
3. Severe brain or closed-head injury as evidenced by:
a. Severe sensory or motor disturbances;
b. Severe communication disturbances;
c. Severe complex integrated disturbances of cerebral function;
d. Severe episodic neurological disorders; or
e. Other severe brain and closed-head injury conditions at least as severe in
nature as any condition provided in sub-subparagraphs a.–d.;
4. Second-degree or third-degree burns of 25 percent or more of the total body
surface or third-degree burns of 5 percent or more to the face and hands; or
5. Total or industrial blindness.
In all other cases, in order to obtain permanent total disability benefits, the
employee must establish that he or she is not able to engage in at least
sedentary employment, within a 50-mile radius of the employee's residence,
due to his or her physical limitation. Entitlement to such benefits shall cease
when the employee reaches age 75, unless the employee is not eligible for
social security benefits under 42 U.S.C. section 402 or section 423 because the
employee's compensable injury has prevented the employee from working
sufficient quarters to be eligible for such benefits, notwithstanding any age
limits. If the accident occurred on or after the employee reaches age 70,
benefits shall be payable during the continuance of permanent total disability,
not to exceed 5 years following the determination of permanent total disability.
When an employee’s injury forever disables him but is not so disabling as to
forever remove him from the workplace, the employer or its carrier/servicing
agent shall pay the employee Impairment Benefits for a period based on the
employee’s impairment rating. All Impairment Benefits shall be based on an
impairment rating using the 1996 Florida Uniform Permanent Impairment Rating
Schedule which can be found reprinted in Appendix VII to Patrick John
McGinley, Florida Workers’ Compensation, 10 Florida Practice Series pages
1165-1311 (Thomson-West 2006 edition). Determination of the employee’s
permanent impairment must be made by a physician licensed under F.S.A.
chapter 458, a doctor of osteopathic medicine licensed under Florida Statutes
chapters 458 and 459, a chiropractic physician licensed under Florida Statutes
chapter 460, a podiatric physician licensed under Florida Statutes chapter 461,
an optometrist licensed under Florida Statutes chapter 463, or a dentist
licensed under Florida Statutes chapter 466, as appropriate considering the
nature of the injury. No other persons are authorized to render opinions
regarding the existence of or the extent of permanent impairment. The
employee's entitlement to Impairment Benefits begins the day after the
employee reaches maximum medical improvement or the expiration of
temporary benefits, whichever occurs earlier, and continues for the following
periods:
1. Two weeks of benefits are to be paid to the employee for each percentage
point of impairment from 1 percent up to and including 10 percent.
2. For each percentage point of impairment from 11 percent up to and including
15 percent, 3 weeks of benefits are to be paid.
3. For each percentage point of impairment from 16 percent up to and including
20 percent, 4 weeks of benefits are to be paid.
4. For each percentage point of impairment from 21 percent and higher, 6
weeks of benefits are to be paid.
Note that, despite the above, an employee's entitlement to Impairment
Benefits ends upon the death of the employee. Also note that Impairment
Benefits are payable only for impairment ratings for physical impairments. If
objective medical findings can substantiate a permanent psychiatric impairment
resulting from the accident, Impairment Benefits are limited for the permanent
psychiatric impairment to 1-percent permanent impairment.
When mental or nervous injuries are covered by Florida’s workers’
compensation Act, the indemnity benefits paid to the employee are subject to
additional caps beyond those maximums established for physical injuries. In
the instances when the mental or nervous injury results in lost wages, in no
event shall Temporary Total Disability and/or Temporary Partial Disability
benefits for the compensable mental or nervous injury be paid for more than 6
months after the date of maximum medical improvement for the injured
employee's physical injury, and this maximum of 6 months of payments shall be
included within and subject to the maximum payment period of 104 weeks as
provided in Florid Statutes section 440.15(2) and Florida Statutes section
440.15(4). When the mental or nervous injury itself results in a permanent
psychiatric impairment, Impairment Benefits payable for that permanent
impairment are limited to one percent impairment.
26. Will the Worker Still Receive Money from Workers’ Compensation If He
Receives or is Entitled to Receive Unemployment Compensation?
The employee’s unemployment benefits affect his workers’ compensation
indemnity payments as follows. No compensation benefits shall be payable for
Temporary Total Disability or Permanent Total Disability from workers’
compensation for any week in which the injured employee has received, or is
receiving, unemployment compensation benefits. If an employee is entitled to
Temporary Partial Disability benefits and is also entitled to unemployment
compensation benefits, then the unemployment compensation benefits shall be
primary, the Temporary Partial Disability benefits shall be supplemental only,
and the sum of the two benefits may not exceed the amount of Temporary
Partial Disability benefits which would otherwise be payable.
27. Will the Worker Still Receive Money from Workers’ Compensation If He
Refuses to Return to Work, is Fired, or Quits?
If an injured employee refuses employment that is suitable for him in his post-
injury capacity, and that is offered to or procured for him, then the employee
shall not be entitled to any compensation at any time during the continuance of
his refusal to return to work unless at any time in the opinion of the judge of
compensation claims such refusal is justifiable. Time during the continuance of
his refusal to return to work shall be counted toward the 104 week maximum
cap on the payment of benefits for Temporary Total Disability and Temporary
Partial Disability if the refusal happens before the employee reaches his
Maximum Medical Improvement (“MMI”) and counted toward the number of
weeks of Impairment Benefits for that portion of the refusal that happens after
the employee reaches MMI.
If an injured employee quits while receiving Temporary Partial Disability
benefits without just cause (as determined by the Judge of Compensation
Claims), Temporary Partial Disability benefits shall be payable based on the
deemed earnings of the employee as if she or he had remained employed.
If an injured employee quits or is fired when receiving Temporary Partial
Disability, the employee must give his former employer a written affidavit
containing the name of her or his new employer, the place of employment, and
the amount of wages being received; and, until she or he gives such affidavit,
the compensation for Temporary Partial Disability will cease. The former
employer may also at any time demand that the former employee provide an
additional written affidavit containing the name of her or his employer, the
place of her or his employment, and the amount of wages she or he is
receiving; and if the employee, upon such demand, fails or refuses to furnish
the written affidavit, then her or his right to compensation for Temporary
Partial Disability shall cease until the written affidavit is furnished.
28. Can the Employer Recover Workers’ Compensation Payments Made to
an Employee Who was Not Entitled to Receive that Compensation?
If an employee has received a sum as an indemnity benefit under any
classification or category of benefit under Florida’s workers’ compensation Act
to which she or he is not entitled, the employee is liable to repay that sum to
the employer or the carrier/servicing agent or to have that sum deducted from
the employee’s future benefits; however, a partial payment of the total
repayment may not exceed 20 percent of the amount of the biweekly payment.
When an employee is injured and the employer pays the employee's full wages
or any part thereof during the period of disability, or pays medical expenses for
such employee, and the case is contested by the employer’s insurance carrier
(or by both the carrier and employer) and thereafter the carrier, either
voluntarily or pursuant to an award, makes a payment of compensation or
medical benefits, the employer shall be entitled to reimbursement to the extent
of the compensation paid or awarded, plus medical benefits, if any, out of the
first proceeds paid by the carrier in compliance with such voluntary payment or
award, provided the employer furnishes satisfactory proof to the Judge of
Compensation Claims of such payment of compensation and medical benefits.
Likewise, an employer may recover from his insurance carrier payments made
by the employer to the injured employee upon proper proof of entitlement.
29. What Benefits Other than Medicals and Lost Wages are Provided by
Workers’ Compensation?
Additional benefits available under Florida’s workers’ compensation Act include
cash advances of future payments, penalties, interest, costs, attorney’s fees,
modification of past compensation orders, and lump-sum settlements.
Advances of future workers’ compensation payments may be voluntarily given
by an employer or demanded by an employee (and granted after approval by a
Judge of Compensation Claims). Liability of an employer for future payments
of compensation may not be discharged by advance payment unless prior
approval of a Judge of Compensation Claims or the Florida Department of
Financial Services has been obtained. If the employer has made advance
payments of compensation, she or he shall be entitled to be reimbursed out of
any unpaid installment or installments of compensation due.
Penalties may be owed when an indemnity payment is late. If any installment
of compensation for death or dependency benefits, or compensation for
disability benefits payable without an award is not paid within 7 days after it
becomes due, there shall be added to such unpaid installment a penalty of an
amount equal to 20 percent of the unpaid installment, which shall be paid at
the same time as, but in addition to, such installment of compensation. This
penalty shall not apply to late payments resulting from conditions over which
the employer or carrier had no control.
Interest may also be owed on late indemnity payments. In addition to any
other penalties for late payment, if any installment of compensation is not paid
when it becomes due, the employer, carrier, or servicing agent shall pay
interest thereon at the rate of 12 percent per year from the date the
installment becomes due until it is paid. The interest payment shall be the
greater of the amount of interest due or $5.00.
Costs and attorney’s fees are payable in certain circumstances. If the Judge of
Compensation Claims or any court having jurisdiction of proceedings in respect
of any claim or compensation order determines that the proceedings in respect
of such claim or order have been instituted or continued without reasonable
ground, the cost of such proceedings (including taxable costs plus attorney’s
fees) shall be assessed against the party who has so instituted or continued
the proceedings. Taxable costs of the proceedings are awarded to the
prevailing party (whether it be the employee or the employer and his insurance
carrier/servicing agent) in proceedings before a Judge of Compensation
Claims. The successful employee’s attorney’s fees are payable by the
unsuccessful employer and its insurance carrier/servicing agent in the amount
of a statutory percentage of benefits won as detailed below and in Patrick John
McGinley, Florida Workers’ Compensation, 10 Florida Practice Series sections 25:
1 through 25:47.
Modification of past compensation orders may be made by a Judge of
Compensation Claims, on the ground of a change in condition or because of a
mistake in a determination of fact, at any time prior to 2 years after the date of
the last payment of compensation pursuant to the compensation order the
party seeks to modify, or at any time prior to 2 years after the date that copies
of an order rejecting a claim are mailed to the parties. This right to
modification empowers a Judge of Compensation Claims to issue a new
compensation order that may terminate, continue, reinstate, increase, or
decrease such compensation or award compensation. The new order shall not
affect any compensation previously paid, except that an award increasing the
compensation rate may be made effective from the date of the injury, and, if
any part of the compensation due or to become due is unpaid, an award
decreasing the compensation rate may be made effective from the date of the
injury, and any payment made prior thereto in excess of such decreased rate
shall be deducted from any unpaid compensation, in such manner and by such
method as may be determined by the Judge of Compensation Claims.
A lump-sum settlement can be paid to the employee. The employee may waive
all rights to any and all benefits under Florida’s workers’ compensation Act by
entering into a settlement agreement releasing the employer and the carrier
from liability for workers' compensation benefits in exchange for a lump-sum
payment to the claimant.
30. What About the Worker’s Pain and Suffering, Mental Anguish, Loss of
Consortium, Loss of Enjoyment of Life and Similar Non-Economic Damages
under Workers’ Comp?
Such benefits are not available under Florida’s workers’ compensation Act.
31. What if Other Insurance Also Covers the Workers’ Compensation
Injury?
Florida workers’ compensation benefits are not payable in respect of the
disability or death of any employee covered by the Federal Employer's Liability
Act, the Longshoremen's and Harbor Worker's Compensation Act, the Defense
Base Act, or the Jones Act. On the contrary, workers covered by out-of-state
workers’ compensation laws may still be covered by Florida’s workers’
compensation Act under the Act’s following provision:
If an accident happens while the employee is employed elsewhere than in this
state, which would entitle the employee or his or her dependents to
compensation if it had happened in this state, the employee or his or her
dependents are entitled to compensation if the contract of employment was
made in this state, or the employment was principally localized in this state.
However, if an employee receives compensation or damages under the laws of
any other state, the total compensation for the injury may not be greater than
is provided in this chapter.
Generally, the above-quoted provision of the Act means that the worker if
otherwise covered under Florida’s workers’ compensation Act is not denied
benefits under the Act for the reason that he received benefits under another
state’s workers’ compensation program for that same accident, but the receipt
of such benefits may serve as an offset from and reduction of his Florida
benefits received for that same accident.
Sometimes automobile insurance and workers’ compensation insurance can
cover the same accident. The fact that the claimant was injured while in an
automobile can transform a simple worker's compensation case into a more
complex one. This is true due to the claimant's possible concurrent coverage
under the Florida’s workers' compensation Act in F.S.A. Chapter 440 and the
Florida Motor Vehicle No-Fault Law in F.S.A. Chapter 627. To use the common
vernacular, we call the Florida Motor Vehicle No-Fault Law the "PIP Statute"
(referring to Personal Injury Protection, or “PIP” coverage). For detailed advice
on the intricacies of Florida's PIP Statute, the best resource available is Russel
Lazega's book called Florida Motor Vehicle No-Fault Law: Personal Injury
Protection (P.I.P.), 7 Florida Practice Series (Thomson-West 2006 edition). For
advice on the concurrent coverage of PIP and workers’ comp, please see
Patrick John McGinley, Florida Workers’ Compensation, 10 Florida Practice
Series, Chapter 25B (Thomson-West 2006 edition). Therein we explain how
PIP coverage is primary over workers' compensation coverage. For this
reason, an employee whose accident yields coverage under both PIP and work
comp routinely seeks simultaneous payment from both his PIP and his work
comp carrier.
32. Is Workers’ Compensation Subject to Creditor Liens?
With regard to liens against the employee, no assignment, release, or
commutation of compensation or benefits due or payable under Florida’s
workers’ compensation Act shall be valid, and such compensation and benefits
shall be exempt from all claims of creditors, and from levy, execution and
attachments or other remedy for recovery or collection of a debt, which
exemption may not be waived. However, the exemption of workers'
compensation claims from creditors does not extend to claims based on an
award of child support or alimony.
With regard to liens against the employer, compensation shall have the same
preference of lien against the assets of the workers’ compensation insurance
carrier or the employer without limit as a claim for unpaid wages or otherwise.
33. Does an Employee Who is Injured on the Job Have a Right to an
Attorney?
A worker is not guaranteed the right to an attorney under Florida’s workers’
compensation Act. However, a worker that is without an attorney can request
the Employee Assistance and Ombudsman Office for assistance in obtaining
workers’ compensation benefits.
34. How is the Worker’s Attorney Paid and How Much is He Paid?
F.S.A. § 440.34 as amended eliminates hourly attorney fees to the worker's
attorney in most circumstances. In a disputed medical-only claim where “the
circumstances of the particular case warrant such action,” the Judge of
Compensation Claims “may approve an alternative attorney's fee not to
exceed $1,500.00 only once per accident based on a maximum hour rate of
$150.00 per hour, if the judge of compensation claims expressly finds that the
attorney's fee amount provided for. . . based on benefits secured fails to fairly
compensate the attorney for a disputed medical-only claim . . . .” Otherwise,
“any attorney's fees approved by a JCC for benefits secured on behalf of a
claimant must equal 20% of the first $5,000.00 of the amount of benefits
secured, 15% of the next $5,000.00 of the amount of the benefits secured,
10% of the remaining amount of the benefits secured to be provided during
the first 10 years after the date the claim is filed, and 5% of the benefits
secured after 10 years.” Also, “in the event an offer to settle an issue pending
before a judge of compensation claims, including attorney's fees as provided
for in this section, is communicated in writing to the claimant or the claimant's
attorney at least 30 days prior to the trial date on such issue, for purposes of
calculating the amount of attorney's fees to be taxed against the employer or
carrier, the term ‘benefits secured’ shall be deemed to include only that amount
awarded to the claimant the amount specified in the offer to settle. If multiple
issues are pending before the judge of compensation claims, said offer of
settlement shall address each issue pending and shall state explicitly whether
or not the offer on each issue is severable. The written offer shall also
unequivocally state whether or not it includes medical witness fees and
expenses and all other costs associated with the claim.” In any proceedings
before a JCC, the party who prevails will recover taxable costs from the non-
prevailing party.
35. How is the Employer’s Attorney Paid and How Much is He Paid?
Employer’s attorneys are typically paid by the hour by their clients. The hourly
rate charged by employer’s attorneys differ depending upon the region of the
state. Unlike the successful employee, the successful employer is not entitled
to attorney’s fees for successfully defending a workers’ compensation case
against an employee. An employer is entitled to reimbursement of their
taxable court costs from the employee if the employer wins.
36. How Can I Get Advice from a Lawyer Specializing in Florida Workers’
Compensation?
You would most likely find good advice from a lawyer who has substantial
experience in prosecuting and defending Florida workers’ compensation case.
Patrick John McGinley has more than 15 years of workers' compensation
experience and can be reached at 407-681-2700 or through the link provided
in this website.
37. Where Can I Find a Book Covering All of Florida’s Workers’
Compensation Statutes, Administrative Rules, Litigation Procedures and
Case Law Decisions?
Thomson West Publishing offers a detailed text called Florida Workers’
Compensation which appears as volumes 9 and 10 of West’s Florida Practice
Series and which is written by Patrick John McGinley. To purchase this text,
please visit www.west.thomson.com to order online. This text can also be
searched and read on the WestLaw subscription database available at www.
westlaw.com.
Workers’ Compensation is the no-fault statutory scheme by which most
employees working within the State of Florida are compensated for injuries
arising out of the workplace. Florida Statutes Chapter 440, which codifies this
statutory scheme, is called and may be cited in courts of law as the “Workers’
Compensation Law.” For the sake of brevity, we often refer to the Florida
Workers’ Compensation Law as “the Act.”
Workers' compensation is essentially an insurance plan provided by the
employer, self-executed by the employer's insurance carrier or servicing
agent, and monitored by the State of Florida Division of Administrative
Hearings Office of the Judges of Compensation Claims.
Employers obtain coverage either by purchasing a policy from a private
insurance company, by joining an authorized self-insurance fund, by purchasing
insurance from the State of Florida Joint Underwriting Association (“JUA”), by
qualifying as an individual self-insured, or by contracting with an employee
leasing company (which can be known also as a professional employer
organization or “PEO”.)
For an overview of the litigation procedures necessary for bringing or
defending against a workers’ compensation claim in Florida, please see Patrick
John McGinley, Florida Workers’ Compensation sections 3:1 through 4:34 (West
Publishing Co.).
2. What Employers Provide Workers’ Compensation Coverage in Florida?
It is unlawful in Florida for an employer who is required to carry workers’
compensation insurance coverage to fail to do so. Workers’ compensation
coverage is mandatory in all “public employment,” meaning employment by the
state of Florida and all political subdivisions thereof and all public and quasi-
public corporations therein, including officers elected at the polls. In all private
employment, workers’ compensation coverage must be provided to all
employees of any private employer for which four or more employees are
employed by the same employer or, with respect to the construction industry,
all private employment in which one or more employees are employed by the
same employer.
Employers who employ solely the following classifications of workers have no
legal obligation to provide workers’ compensation coverage in Florida because
these classifications do not meet the Florida Workers' Compensation Act’s
definition of “employment”:
1. Domestic servants in private homes.
2. Agricultural labor performed on a farm in the employ of a bona fide
farmer, or association of farmers, that employs 5 or fewer regular employees
and that employs fewer than 12 other employees at one time for seasonal
agricultural labor that is completed in less than 30 days, provided such
seasonal employment does not exceed 45 days in the same calendar year. The
term “farm” includes stock, dairy, poultry, fruit, fur-bearing animals, fish, and
truck farms, ranches, nurseries, and orchards. The term “agricultural labor”
includes field foremen, timekeepers, checkers, and other farm labor supervisory
personnel.
3. Professional athletes, such as professional boxers, wrestlers, baseball,
football, basketball, hockey, polo, tennis, jai alai, and similar players, and motor
sports teams competing in a motor racing event as defined in Florida Statutes
section 549.08.
4. Labor under a sentence of a court to perform community services as
provided in Florida Statutes section 316.193.
5. State prisoners or county inmates, except those performing services for
private employers or those enumerated in Florida Statutes section 948.036(1).
Of course, workers’ compensation could be provided by an employer who has
no legal obligation to provide coverage. In the author’s experience, this can
happen in the case of a collective bargaining agreement, a closely held
corporation, or in an industry where hiring is competitive and fringe benefits
become lucrative. In such instances, it would be wise to inquire of the
employer whether workers’ compensation coverage was provided regardless
of the lack of legal liability for so doing. When any policy or contract of
insurance specifically secures Florida workers’ compensation benefits for any
person not included in the definition of “employee” or whose services are not
included in the definition of “employment” or who is otherwise excluded or
exempted from Florida’s workers’ compensation Act, the acceptance of such
policy or contract of insurance by the insured and the writing of same by the
carrier shall constitute a waiver of such exclusion or exemption and an
acceptance of the provisions of this chapter with respect to such person,
notwithstanding the provision of Florida Statutes section 440.05 with respect
to notice.
Every employer who fails to secure the payment of workers’ compensation
coverage may not, in any suit brought against him or her by an employee to
recover damages for injury or death, defend such a suit on the grounds that
the injury was caused by the negligence of a fellow servant, that the employee
assumed the risk of his or her employment, or that the injury was due to the
comparative negligence of the employee. If an employer fails to secure
compensation as required by the Act, the State of Florida Department of
Financial Services shall assess against the employer a penalty not to exceed
$5,000 for each employee of that employer who is classified by the employer
as an independent contractor but who is found by the department to not meet
the criteria for an independent contractor. The issues involving independent
contractors are covered in greater detail below and in Patrick John McGinley,
Florida Workers’ Compensation sections 6:14 through 6:16 (Thomson-West
2006 edition).
In case a contractor sublets any part or parts of his or her contract work to a
subcontractor or subcontractors, all of the employees of such contractor and
subcontractor or subcontractors engaged on such contract work shall be
deemed to be employed in one and the same business or establishment, and
the contractor shall be liable for, and shall secure, the payment of
compensation to all such employees, except to employees of a subcontractor
who has secured such payment.
3. Which Workers are Covered by Florida Workers’ Compensation?
Generally, workers who meet the statutory definition of “employee” are
covered by the Florida Workers’ Compensation Act. The Act’s definition of
“employee” provides:
“Employee” means any person who receives remuneration from an employer
for the performance of any work or service while engaged in any employment
under any appointment or contract for hire or apprenticeship, express or
implied, oral or written, whether lawfully or unlawfully employed, and includes,
but is not limited to, aliens and minors.
The Act provides 4 explicit examples of workers who meet the definition of
“employee.” Under the Act, the term “employee” includes:
1. A sole proprietor or a partner who is not engaged in the construction
industry, devotes full time to the proprietorship or partnership, and elects to be
included in the definition of employee by filing notice thereof as provided in
Florida Statutes section 440.05.
2. All persons who are being paid by a construction contractor as a
subcontractor, unless the subcontractor has validly elected an exemption as
permitted by this chapter, or has otherwise secured the payment of
compensation coverage as a subcontractor, consistent with Florida Statutes
section 440.10, for work performed by or as a subcontractor.
3. An independent contractor working or performing services in the
construction industry.
4. A sole proprietor who engages in the construction industry and a partner or
partnership that is engaged in the construction industry.
The Act also provides specific instances of workers who do not meet the
definition of “employee.” Florida Statutes section 440.02(15) provides that the
term “employee” does not include:
1. An independent contractor who is not engaged in the construction industry.
2. A real estate licensee, if that person agrees, in writing, to perform for
remuneration solely by way of commission.
3. Bands, orchestras, and musical and theatrical performers, including disk
jockeys, performing in licensed premises as defined in Florida Statutes chapter
562, if a written contract evidencing an independent contractor relationship is
entered into before the commencement of such entertainment.
4. An owner-operator of a motor vehicle who transports property under a
written contract with a motor carrier which evidences a relationship by which
the owner-operator assumes the responsibility of an employer for the
performance of the contract, if the owner-operator is required to furnish the
necessary motor vehicle equipment and all costs incidental to the performance
of the contract, including, but not limited to, fuel, taxes, licenses, repairs, and
hired help; and the owner-operator is paid a commission for transportation
service and is not paid by the hour or on some other time-measured basis.
5. A person whose employment is both casual and not in the course of the
trade, business, profession, or occupation of the employer.
6. A volunteer, except a volunteer worker for the state or a county,
municipality, or other governmental entity. We discuss volunteers in their own
subsection below.
7. Any officer of a corporation who elects to be exempt from this chapter,
unless that officer was prohibited from filing that election. If not prohibited,
then such officer is not an employee for any reason under this chapter until a
notice of revocation of election filed pursuant to Florida Statutes section 440.05
is effective.
8. An officer of a corporation that is engaged in the construction industry who
elects to be exempt from the provisions of this chapter, as otherwise permitted
by this chapter. Such officer is not an employee for any reason until the notice
of revocation of election filed pursuant to Florida Statutes section 440.05 is
effective.
9. An exercise rider who does not work for a single horse farm or breeder, and
who is compensated for riding on a case-by-case basis, provided a written
contract is entered into prior to the commencement of such activity which
evidences that an employee/employer relationship does not exist.
10. A taxicab, limousine, or other passenger vehicle-for-hire driver who
operates said vehicles pursuant to a written agreement with a company which
provides any dispatch, marketing, insurance, communications, or other services
under which the driver and any fees or charges paid by the driver to the
company for such services are not conditioned upon, or expressed as a
proportion of, fare revenues.
11. A person who performs services as a sports official for an entity sponsoring
an interscholastic sports event or for a public entity or private, nonprofit
organization that sponsors an amateur sports event.
12. Medicaid-enrolled clients under Florida Statutes chapter 393 who are
excluded from the definition of employment under Florida Statutes section
443.1216(4)(d) and served by Adult Day Training Services under the Home and
Community-Based Medicaid Waiver program in a sheltered workshop setting
licensed by the United States Department of Labor for the purpose of training
and earning less than the federal hourly minimum wage.
Note that, in both the Act’s definition of who is an “employee” and who is not,
the Act makes reference to the idea of an “independent contractor.” This term
bears a specific definition in workers’ compensation. We explore that definition
in the next subsection.
Likewise, the term “volunteer” bears a specific definition under workers’
compensation, which we discuss in its own subsection below.
Many workers not covered by workers’ compensation are well aware of the
lack of coverage due to the Act’s notice requirements. When an employer does
not elect to provide workers’ compensation coverage and that employer is
permitted by law to do so, then that employer is obliged to “post clear written
notice in a conspicuous location at each work site . . . .”
4. Are Independent Contractors Covered under Florida Workers’
Compensation?
Generally speaking, independent contractors are not covered under the Florida
Workers’ Compensation Act unless the independent contractor works in the
construction industry. In order to meet the Act’s definition of “independent
contractor,” at least 4 of the following criteria must be met:
(I) The independent contractor maintains a separate business with his or her
own work facility, truck, equipment, materials, or similar accommodations;
(II) The independent contractor holds or has applied for a federal employer
identification number, unless the independent contractor is a sole proprietor
who is not required to obtain a federal employer identification number under
state or federal regulations;
(III) The independent contractor receives compensation for services rendered
or work performed and such compensation is paid to a business rather than to
an individual;
(IV) The independent contractor holds one or more bank accounts in the name
of the business entity for purposes of paying business expenses or other
expenses related to services rendered or work performed for compensation;
(V) The independent contractor performs work or is able to perform work for
any entity in addition to or besides the employer at his or her own election
without the necessity of completing an employment application or process; or
(VI) The independent contractor receives compensation for work or services
rendered on a competitive-bid basis or completion of a task or a set of tasks as
defined by a contractual agreement, unless such contractual agreement
expressly states that an employment relationship exists.
If four of the criteria listed in (I) through (VI) above do not exist, an individual
may still be presumed to be an independent contractor and not an employee
based on full consideration of the nature of the individual situation with regard
to satisfying any of the following conditions:
(i) The independent contractor performs or agrees to perform specific services
or work for a specific amount of money and controls the means of performing
the services or work.
(ii) The independent contractor incurs the principal expenses related to the
service or work that he or she performs or agrees to perform.
(iii) The independent contractor is responsible for the satisfactory completion of
the work or services that he or she performs or agrees to perform.
(iv) The independent contractor receives compensation for work or services
performed for a commission or on a per-job basis and not on any other basis.
(v) The independent contractor may realize a profit or suffer a loss in
connection with performing work or services.
(vi) The independent contractor has continuing or recurring business liabilities
or obligations.
(vii) The success or failure of the independent contractor's business depends
on the relationship of business receipts to expenditures.
5. Are Volunteers Covered under Florida Workers’ Compensation?
Florida Workers’ Compensation coverage does not extend to a volunteer
except a volunteer worker for the state or a county, municipality, or other
governmental entity. A person who does not receive monetary remuneration
for services is presumed to be a volunteer unless there is substantial evidence
that a valuable consideration was intended by both the employer and the
employee.
For purposes of workers’ compensation, the term “volunteer” includes, but is
not limited to:
a. Persons who serve in private nonprofit agencies and who receive no
compensation other than expenses in an amount less than or equivalent to the
standard mileage and per diem expenses provided to salaried employees in
the same agency or, if such agency does not have salaried employees who
receive mileage and per diem, then such volunteers who receive no
compensation other than expenses in an amount less than or equivalent to the
customary mileage and per diem paid to salaried workers in the community as
determined by the department; and
b. Volunteers participating in federal programs established under Florida Public
Law Number 93-113.
A specific provision in the Act provides coverage for volunteer firefighters
responding to or assisting with fire or medical emergencies whether or not the
firefighters are on duty.
6. Are Officers and Directors of Corporations Covered by Florida Workers’
Compensation?
Officers or directors of organizations are covered by workers’ compensation if
that officer or director is also an employee. Under a special provision of the
Florida Workers' Compensation Act, the term “employee” includes any person
who is an officer of a corporation and who performs services for remuneration
for such corporation within this state, whether or not such services are
continuous. Services are presumed to have been rendered to the corporation
if the officer is compensated by other than dividends upon shares of stock of
the corporation which the officer owns.
Any officer of a corporation may elect to be exempt from this chapter by filing a
written notice of the election with the State of Florida Department of Financial
Services as provided in Florida Statutes section 440.05. As to officers of a
corporation who are engaged in the construction industry, no more than three
officers of a corporation or of any group of “affiliated corporations” may elect
to be exempt. Officers must be shareholders, each owning at least 10 percent
of the stock of such corporation and listed as an officer of such corporation with
the Division of Corporations of the Florida Department of State, in order to
elect exemptions.
An officer of a corporation who elects properly to be exempt by filing the
written notice of the election is not an employee and therefore not covered by
Florida workers’ compensation. An officer of a corporation who is permitted to
elect an exemption under Florida’s workers’ compensation Act and who elects
to be exempt from the provisions of that Act may not recover benefits under
the Act. Every corporate officer who elects to reject the Act shall, in any action
to recover damages for injury or death brought against the corporate
employer, proceed as at common law, and the employer in such suit may avail
itself of all defenses that exist at common law.
7. Can the Employer Charge the Employees for Providing Florida Workers’
Compensation Coverage?
Any agreement by an employee is invalid and unenforceable if the employee
agrees to pay any portion of premium paid by her or his employer to a workers’
compensation insurance carrier or to contribute to a benefit fund or
department maintained by the employer for the purpose of providing workers’
compensation or medical services and supplies as required by Florida’s
workers’ compensation Act. Likewise, any pre-injury agreement by an
employee to waive her or his right to compensation under Florida’s workers’
compensation Act is invalid.
8. What Does Workers’ Compensation Immunity Mean as Applied to an
Employer?
Florida’s workers’ compensation Act provides that the liability of an employer
shall be exclusive and in place of all other liability, including vicarious liability, of
such employer to any third-party tortfeasor and to the employee, the legal
representative thereof, husband or wife, parents, dependents, next of kin, and
anyone otherwise entitled to recover damages from such employer at law or in
admiralty on account of such injury or death, except in the case of the
employer’s failure to carry workers’ compensation coverage, or in certain
instances involving an employer’s intentional tort. These two exceptions are
described below.
Under the first exception, if an employer fails to secure payment of
compensation as required by this chapter, an injured employee, or the legal
representative thereof in case death results from the injury, may elect to claim
compensation under this chapter or to maintain an action at law or in admiralty
for damages on account of such injury or death. In such action the defendant
may not plead as a defense that the injury was caused by negligence of a
fellow employee, that the employee assumed the risk of the employment, or
that the injury was due to the comparative negligence of the employee.
The second exception is when an employer commits an intentional tort that
causes the injury or death of the employee. For purposes of this exception, an
employer's actions shall be deemed to constitute an intentional tort and not an
accident only when the employee proves, by clear and convincing evidence,
that:
1. The employer deliberately intended to injure the employee; or
2. 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.
The immunity from liability provided to employers also extends to county
governments with respect to employees of county constitutional officers whose
offices are funded by the board of county commissioners.
Note that the employer’s immunity will not shield him from retaliatory discharge
claims. The Act specifically provides that “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.”
9. What Does Workers’ Compensation Immunity Mean as Applied to a Co-
Worker or Fellow Employee?
The same immunities from liability enjoyed by an employer shall extend as well
to each employee of the employer when such employee is acting in furtherance
of the employer's business. Such fellow-employee immunities shall not be
applicable to an employee who acts, with respect to a fellow employee, with
willful and wanton disregard or unprovoked physical aggression or with gross
negligence when such acts result in injury or death or such acts proximately
cause such injury or death, nor shall such immunities be applicable to
employees of the same employer when each is operating in the furtherance of
the employer's business but they are assigned primarily to unrelated works
within private or public employment.
10. What Does Workers’ Compensation Immunity Mean as Applied to
Managers, Officers or Directors?
The same immunity provisions enjoyed by an employer shall also apply to any
sole proprietor, partner, corporate officer or director, supervisor, or other
person who in the course and scope of his or her duties acts in a managerial or
policymaking capacity and the conduct which caused the alleged injury arose
within the course and scope of said managerial or policymaking duties and was
not a violation of a law, whether or not a violation was charged, for which the
maximum penalty which may be imposed does not exceed 60 days'
imprisonment as set forth in Florida Statutes section 775.082.
11. What Does Workers’ Compensation Immunity Mean as Applied to an
Employee Leasing Company, a Professional Employer Organization
(“PEO”), a Help Supply Services Company, or Any Organization Providing
Safety Inspections?
The immunity from liability for workers’ compensation employers shall extend to
an employer and to each employee of the employer which utilizes the services
of the employees of a help supply services company, as set forth in Standard
Industry Code Industry Number 7363, when such employees, whether
management or staff, are acting in furtherance of the employer's business. An
employee so engaged by the employer shall be considered a borrowed
employee of the employer, and, for the purposes of workers’ compensation
immunity, shall be treated as any other employee of the employer. The
employer shall be liable for and shall secure the payment of compensation to
all such borrowed employees, except when such payment has been secured by
the help supply services company.
An employer's workers' compensation carrier, servicing agent, or safety
consultant shall not be liable as a third-party tortfeasor to employees of the
employer or employees of its subcontractors for assisting the employer and its
subcontractors, if any, in carrying out the employer's rights and responsibilities
under Florida’s workers’ compensation Act by furnishing any safety inspection,
safety consultative service, or other safety service incidental to the workers'
compensation or employers' liability coverage or to the workers' compensation
or employer's liability servicing contract. Without limitation, a safety consultant
may include an owner, as defined in Florida Statutes chapter 713, or an
owner's related, affiliated, or subsidiary companies and the employees of
each. This immunity shall not apply in any case in which injury or death is
proximately caused by the willful and unprovoked physical aggression, or by
the negligent operation of a motor vehicle, by employees, officers, or directors
of the employer's workers' compensation carrier, service agent, or safety
consultant.
Notwithstanding the provisions of Florida Statutes section 624.155, the liability
of a carrier to an employee or to anyone entitled to bring suit in the name of
the employee shall be as provided in this chapter, which shall be exclusive and
in place of all other liability.
12. What Qualifies as a Compensable Accident and Injury under Florida
Workers’ Compensation?
The employer must pay compensation or furnish benefits required by the
Florida Workers’ Compensation Act if the employee suffers an accidental
compensable injury or death arising out of work performed in the course and
the scope of employment. The Act defines “injury,” in pertinent part, as
“personal injury ... by accident arising out of and in the course of
employment.” Under the Act, “[t]he concept of accidental injury is founded
upon unexpectedness in either cause or result. . . .” The Florida Workers'
Compensation Act defines the term “accident” as follows:
“Accident” means only an unexpected or unusual event or result that happens
suddenly. Disability or death due to the accidental acceleration or aggravation
of a venereal disease or of a disease due to the habitual use of alcohol or
controlled substances or narcotic drugs, or a disease that manifests itself in
the fear of or dislike for an individual because of the individual's race, color,
religion, sex, national origin, age, or handicap is not an injury by accident
arising out of the employment. Subject to s. 440.15(5), if a preexisting disease
or anomaly is accelerated or aggravated by an accident arising out of and in
the course of employment, only acceleration of death or acceleration or
aggravation of the preexisting condition reasonably attributable to the accident
is compensable, with respect to any compensation otherwise payable under
this chapter. An injury or disease caused by exposure to a toxic substance,
including, but not limited to, fungus or mold, is not an injury by accident arising
out of the employment unless there is clear and convincing evidence
establishing that exposure to the specific substance involved, at the levels to
which the employee was exposed, can cause the injury or disease sustained
by the employee.
The Act’s definition of “accident” has remained relatively stable and largely
unchanged over the years, with perhaps the most thorough alterations being
made only recently. Effective for all dates of accident on or after October 1,
2003, the definition of accident in 440.02(1) was amended. It struck from the
exclusions of things that are not an injury by accident an injury consisting of “a
mental or nervous injury due to stress, fright, or excitement only.” The
definition of the acceleration or aggravation of a pre-existing disease or
anomaly now specifically references F.S.A. § 440.15(5). The definition now
further provides that “an injury or disease caused by exposure to a toxic
substance, including, but not limited to, fungus or mold, is not an injury by
accident arising out of the employment unless there is clear and convincing
evidence establishing that exposure to the specific substance involved, at the
levels to the which the employee was exposed, can cause the injury or disease
sustained by the employee.”
13. What If the Workplace Caused Injury but There Was No Accident?
Due in part to the premise that “[t]he concept of accidental injury is founded
upon unexpectedness in either cause or result,” many injuries caused by the
workplace are compensable under Florida’s workers’ compensation Act despite
the lack of a finite, specific event that most observers would consider to be a
“literal accident.” Examples can include internal failures such as heart attacks
and strokes, repetitive traumas such as carpal tunnel and degeneration of
discs and bone, occupational diseases such as hepatitis and sinusitus, and
harmful exposures such as black lung and asbestosis. In order to avoid
transforming the workers’ compensation Act into a general health insurance
policy, the law imposes elements of proof for compensability of these
conditions. The burdens of proof for, and the defenses against, such
occupational diseases, repetitive traumas and exposures are covered in Patrick
John McGinley, Florida Workers’ Compensation, 9 Florida Practice Series
sections 8:1 through 8:15 (Thomson-West 2006 edition).
14. Does Workers’ Compensation Cover Internal Failures Such as Heart
Attacks, Strokes, Hernias, and Cardiovascular Problems?
For internal failures such as heart attacks, cardiovascular ailments, strokes,
hernias, and the like, the “Victor Wine test” provides the elements of proof
imposed upon the employee who suffers from a relevant pre-existing medical
condition, and the “Zundell standard” provides the elements of proof for the
claimant who did not have a pre-existing condition. Under the “Zundell
standard”, an internal failure is compensable upon the claimant’s proof that the
failure was “a physical injury arising from a workplace exertion and was not
attributable to any ascertainable preexisting condition.” For example, a
claimant in perfect health has proven a compensable internal failure by
showing that while doing routine lifting at work he suffered a hernia during a
lift. Similarly, a school teacher without evident prior cardiovascular problems
proved a compensable internal failure when his doctor testified that the stress
of an unruly student caused his brain hemorrhage. Both these examples, of
course, assume that the claimant met her initial burden under Zundell to
demonstrate the absence of any relevant preexisting condition. On the
contrary, the rule of law announced in Victor Wine was intended to deal with
the peculiar problem that arises when a worker's compensation claimant
suffers an internal failure on the job that appears at least partly to have been
caused by a relevant preexisting medical condition. Under Victor Wine, a
claimant whose injury may have been exacerbated by such a preexisting
condition bears the additional burden of proving that the injury occurred
because of a specifically identifiable job-related exertion over and above
normal working conditions. Note that the “Victor Wine Test” requirement of an
unusual stress or strain means the claimant will have to show a causal nexus
between her injury and some specifically identifiable physical activity, whereas
the “Zundell standard” may be met by stress alone. Examples under the
“Victor Wine test” of such specifically identifiable efforts not routine to a
claimant’s job that sufficiently proved the requisite “unusual stress or strain”
include falling from a flatbed truck, the employee’s fright from having a snake
thrown at him by a co-worker, climbing a 20-foot stack of plywood in lieu of a
ladder while installing wiring, and similar events. Examples of things held
insufficient under the “Victor Wine test” to create compensability of an internal
failure include emotional stress without physical exertion, proof that a
workday was particularly arduous but not that it involved an unusual stress or
strain, and similar events. For a thorough review of case law examples of
sufficient and insufficient factual scenarios, please see Patrick John McGinley,
Florida Workers’ Compensation, 9 Florida Practice Series, Chapter 7 (Thomson-
West’s Florida Practice Series 2006 edition).
15. What if the Worker Caused his Own Accident?
Workers’ compensation in Florida may be called a “no-fault” system. Florida’s
workers’ compensation Act provides that compensation shall be payable
irrespective of fault as a cause for the injury, except that no workers’
compensation benefits are payable if the employee’s injury was occasioned
primarily by the willful intention of the employee to injure or kill himself, herself,
or another; and no workers’ compensation benefits are payable if the
employee’s injury was occasioned primarily by the intoxication of the employee
or by the influence of any drugs, barbiturates, or other stimulants not
prescribed by a physician.
If injury is caused by the knowing refusal of the employee to use a safety
appliance or observe a safety rule required by statute or lawfully adopted by
the department, and brought prior to the accident to the employee's
knowledge, or if injury is caused by the knowing refusal of the employee to use
a safety appliance provided by the employer, the employee’s workers’
compensation benefits shall be reduced by 25 percent.
16. What if a Third Party Tortfeasor Caused the Employee’s Workplace
Accident?
If an employee is injured or killed in the course of his or her employment by the
negligence or wrongful act of a third-party tortfeasor, such injured employee
or, in the case of his or her death, the employee's dependents may accept
compensation benefits from his employer under the provisions of Florida’s
workers’ compensation Act, and at the same time such injured employee or his
or her dependents or personal representatives may pursue his or her remedy
by action at law or otherwise against the third-party tortfeasor.
If the employee or his or her dependents accept compensation or other
benefits under Florida’s workers’ compensation Act (or begin proceedings
seeking such benefits), the employer or, in the event the employer is insured
against liability hereunder, the employer’s insurer shall be subrogated to the
rights of the employee or his or her dependents against such third-party
tortfeasor. If the injured employee or his or her dependents recovers from a
third-party tortfeasor by judgment or settlement, either before or after the
filing of suit, before the employee has accepted compensation or other benefits
under this chapter or before the employee has filed a written claim for
compensation benefits, the amount recovered from the tortfeasor shall be set
off against any compensation benefits other than for remedial care, treatment
and attendance as well as rehabilitative services. The amount of such offset
shall be reduced by the amount of all court costs expended in the prosecution
of the third-party suit or claim, including reasonable attorney fees for the
plaintiff's attorney.
In all claims or actions at law against a third-party tortfeasor, the employee, or
his or her dependents or those entitled by law to sue in the event he or she is
deceased, shall sue for the employee individually and for the use and benefit of
the employer, if a self-insurer, or employer's insurance carrier, in the event
compensation benefits are claimed or paid; and such suit may be brought in
the name of the employee, or his or her dependents or those entitled by law to
sue in the event he or she is deceased, as plaintiff or, at the option of such
plaintiff, may be brought in the name of such plaintiff and for the use and
benefit of the employer or insurance carrier, as the case may be. Upon suit
being filed, the employer or the employer’s insurance carrier, as the case may
be, may file in the suit a notice of payment of compensation and medical
benefits to the employee or his or her dependents, which notice shall
constitute a lien upon any judgment or settlement recovered to the extent that
the court may determine to be their pro rata share for compensation and
medical benefits paid or to be paid under the provisions of this law, less their
pro rata share of all court costs expended by the plaintiff in the prosecution of
the suit including reasonable attorney's fees for the plaintiff's attorney. In
determining the employer's or carrier's pro rata share of those costs and
attorney's fees, the employer or carrier shall have deducted from its recovery a
percentage amount equal to the percentage of the judgment or settlement
which is for costs and attorney's fees. Subject to this deduction, the employer
or carrier shall recover from the judgment or settlement, after costs and
attorney's fees incurred by the employee or dependent in that suit have been
deducted, 100 percent of what it has paid and future benefits to be paid,
except, if the employee or dependent can demonstrate to the court that he or
she did not recover the full value of damages sustained, the employer or
carrier shall recover from the judgment or settlement, after costs and
attorney's fees incurred by the employee or dependent in that suit have been
deducted, a percentage of what it has paid and future benefits to be paid
equal to the percentage that the employee's net recovery is of the full value of
the employee's damages.
If the injured employee or his or her dependents, as the case may be, fail to
bring suit against such third-party tortfeasor within 1 year after the cause of
action thereof has accrued, the employer, if a self-insurer, and if not, the
insurance carrier, may, after giving 30 days' notice to the injured employee or
his or her dependents and the injured employee's attorney, if represented by
counsel, institute suit against such third-party tortfeasor, and, in the event suit
is so instituted, shall be subrogated to and entitled to retain from any
judgment recovered against, or settlement made with, such third party, the
following: All amounts paid as compensation and medical benefits under the
provisions of this law and the present value of all future compensation benefits
payable, to be reduced to its present value, and to be retained as a trust fund
from which future payments of compensation are to be made, together with all
court costs, including attorney's fees expended in the prosecution of such suit,
to be prorated as provided in the paragraph above. The remainder of the
moneys derived from such judgment or settlement shall be paid to the
employee or his or her dependents, as the case may be.
If the carrier or employer does not bring suit within 2 years following the
accrual of the cause of action against a third-party tortfeasor, the right of
action shall revert to the employee or, in the case of the employee's death,
those entitled by law to sue.
17. What if the Worker was Drunk on Alcohol or High on Drugs when He
Had His Accident?
No workers’ compensation benefits are payable if the employee’s injury was
occasioned primarily by the intoxication of the employee or by the influence of
any drugs, barbiturates, or other stimulants not prescribed by a physician.
To ensure that the workplace is a drug-free environment and to deter the use
of drugs and alcohol at the workplace, if the employer has reason to suspect
that the injury was occasioned primarily by the intoxication of the employee or
by the use of any drug, as defined in this chapter, which affected the employee
to the extent that the employee's normal faculties were impaired, and the
employer has not implemented a drug-free workplace pursuant to Florida
Statutes sections 440.101 and 440.102, the employer may require the
employee to submit to a test for the presence of any or all drugs or alcohol in
his or her system. If the injured worker refuses to submit to a drug test, it
shall be presumed in the absence of clear and convincing evidence to the
contrary that the injury was occasioned primarily by the influence of drugs.
Drug test results have the following legal effect under Florida’s workers’
compensation Act:
If the employee has, at the time of the injury, a blood alcohol level equal to or
greater than the level specified in Florida Statutes section 316.193, or if the
employee has a positive confirmation of a drug as defined in this Act, it is
presumed that the injury was occasioned primarily by the intoxication of, or by
the influence of the drug upon, the employee. If the employer has implemented
a drug-free workplace, this presumption may be rebutted only by evidence that
there is no reasonable hypothesis that the intoxication or drug influence
contributed to the injury. In the absence of a drug-free workplace program,
this presumption may be rebutted by clear and convincing evidence that the
intoxication or influence of the drug did not contribute to the injury. Percent by
weight of alcohol in the blood must be based upon grams of alcohol per 100
milliliters of blood. If the results are positive, the testing facility must maintain
the specimen for a minimum of 90 days. Blood serum may be used for testing
purposes under this chapter; however, if this test is used, the presumptions
under this section do not arise unless the blood alcohol level is proved to be
medically and scientifically equivalent to or greater than the comparable blood
alcohol level that would have been obtained if the test were based on percent
by weight of alcohol in the blood.
However, if, before the accident, the employer had actual knowledge of and
expressly acquiesced in the employee's presence at the workplace while under
the influence of such alcohol or drug, the presumptions specified in the above-
quoted subsection do not apply. As a part of rebutting any presumptions that
arise under the above-quoted subsection, the injured worker must prove the
actual quantitative amounts of the drug or its metabolites as measured on the
initial and confirmation post-accident drug tests of the injured worker's urine
sample and provide additional evidence regarding the absence of drug
influence other than the worker's denial of being under the influence of a drug.
No drug test conducted on a urine sample shall be rejected on the basis of the
urine being bodily fluid tested.
18. What if More than One Employer (or More than One Insurance
Company) Is Liable for the Employee’s Workplace Accident?
When there is any controversy as to which of two or more carriers is liable for
the discharge of the obligations and duties of one or more employers with
respect to a claim for compensation, remedial treatment, or other benefits
under Florida’s workers’ compensation Act, the Judge of Compensation Claims
shall have jurisdiction to adjudicate such controversy. If one of the insurance
carriers voluntarily or in compliance with a compensation order makes
payments in discharge of its alleged workers’ compensation liability and it is
finally determined that another carrier is liable for all or any part of such
obligations and duties with respect to that claim, then the carrier which has
made payments either voluntarily or in compliance with a compensation order
shall be entitled to reimbursement from the carrier finally determined liable,
and the judge of compensation claims shall have jurisdiction to order such
reimbursement. However, if the carrier finally determined liable can
demonstrate that it has been prejudiced by lack of knowledge or notice of its
potential liability, such reimbursement shall be only with respect to payments
made after it had knowledge or notice of its potential liability.
19. What Causation Requirements Apply in Workers’ Compensation?
The injury, its occupational cause, and any resulting manifestations or disability
must be established to a reasonable degree of medical certainty, based on
objective relevant medical findings, and the accidental compensable injury must
be the “major contributing cause” of any resulting injuries. As defined in
Florida’s workers’ compensation Act, “major contributing cause” means the
cause which is more than 50 percent responsible for the injury as compared to
all other causes combined for which treatment or benefits are sought. Major
contributing cause must be demonstrated by medical evidence only.
In cases involving occupational disease or repetitive exposure, both causation
and sufficient exposure to support causation must be proven by clear and
convincing evidence.
Pain or other subjective complaints alone, in the absence of objective relevant
medical findings, are not compensable. The Act defines “objective relevant
medical findings” are those objective findings that correlate to the subjective
complaints of the injured employee and are confirmed by physical examination
findings or diagnostic testing.
Establishment of the causal relationship between a compensable accident and
injuries for conditions that are not readily observable must be by medical
evidence only, as demonstrated by physical examination findings or diagnostic
testing.
Injuries caused by a subsequent intervening accident arising from an outside
agency which are the direct and natural consequence of the original injury are
not compensable unless suffered while traveling to or from a health care
provider for the purpose of receiving remedial treatment for the compensable
injury.
20. Where Must the Accident Take Place in Order to be Compensable?
Generally, the employer must pay compensation or furnish benefits if the
employee suffers an accidental compensable injury or death arising out of work
performed in the course and the scope of employment. As the following
explains, the accident need not be on the employer’s premises, or even within
the state of Florida, in order to be compensable under Florida’s Workers’
Compensation Act.
An injury suffered while going to or coming from work is not an injury arising
out of and in the course of employment (whether or not the employer provided
transportation) if such means of transportation was available for the exclusive
personal use by the employee, unless the employee was engaged in a special
errand or mission for the employer.
An employee who is injured while deviating from the course of employment,
including leaving the employer's premises, is not eligible for benefits unless
such deviation is expressly approved by the employer, or unless such deviation
or act is in response to an emergency and designed to save life or property.
An employee who is required to travel in connection with his or her
employment who suffers an injury while in travel status shall be eligible for
benefits under this chapter only if the injury arises out of and in the course of
employment while he or she is actively engaged in the duties of employment.
This applies to travel necessarily incident to performance of the employee's job
responsibility but does not include travel to and from work.
Recreational or social activities are not compensable unless such recreational
or social activities are an expressly required incident of employment and
produce a substantial direct benefit to the employer beyond improvement in
employee health and morale that is common to all kinds of recreation and
social life.
If an accident happens while the employee is employed elsewhere than in
Florida, which would entitle the employee or his or her dependents to
compensation if it had happened in Florida, then the employee or his or her
dependents are entitled to compensation if the contract of employment was
made in Florida, or the employment was principally localized in Florida.
However, if an employee receives compensation or damages under the laws of
any other state, the total compensation for the injury may not be greater than
is provided under the Florida workers’ compensation Act.
Special consideration is granted to firefighters, paramedics, EMT’s and law
enforcement officers that expand the time and place where they are covered
under Florida’s Workers’ Compensation Act. The Act provides:
(1) If an employee:
(a) Is elected, appointed, or employed full time by a municipality, the state, or
any political subdivision and is vested with authority to bear arms and make
arrests and the employee's primary responsibility is the prevention or detection
of crime or the enforcement of the penal, criminal, traffic, or highway laws of
the state;
(b) Was discharging that primary responsibility within the state in a place and
under circumstances reasonably consistent with that primary responsibility;
and
(c) Was not engaged in services for which he or she was paid by a private
employer, and the employee and his or her public employer had no agreement
providing for workers' compensation coverage for that private employment;
the employee is considered to have been acting within the course of
employment. The term “employee” as used in this subsection includes all
certified supervisory and command personnel whose duties include, in whole or
in part, responsibilities for the supervision, training, guidance, and
management of full-time law enforcement officers, part-time law enforcement
officers, or auxiliary law enforcement officers but does not include support
personnel employed by the employing agency.
(2) If a firefighter as defined by Florida Statutes section 112.191(1)(b) is
engaged in extinguishing a fire, or protecting and saving life or property due to
a fire in this state in an emergency, and such activities would be considered to
be within the course of his or her employment as a firefighter and covered by
the employer's workers' compensation coverage except for the fact that the
firefighter was off duty or that the location of the fire was outside the
employer's jurisdiction or area of responsibility, such activities are considered
to be within the course of employment. This subsection does not apply if the
firefighter is performing activities for which he or she is paid by another
employer or contractor.
(3) If an emergency medical technician or paramedic is appointed or employed
full time by a municipality, the state, or any political subdivision, is certified
under Florida Statutes chapter 401, is providing basic life support or advanced
life support services, as defined in Florida Statutes section 401.23, in an
emergency situation in this state, and such activities would be considered to
be within the course of his or her employment as an emergency medical
technician or paramedic and covered by the employer's workers' compensation
coverage except for the fact that the location of the emergency was outside of
the employer's jurisdiction or area of responsibility, such activities are
considered to be within the course of employment. The provisions of this
subsection do not apply if the emergency medical technician or paramedic is
performing activities for which he or she is paid by another employer or
contractor.
Obviously, the above-quoted statutes make law enforcement officers,
paramedics, EMT’s and firefighters covered as being within the course of their
employment even if they are suddenly called to perform their duty on a day off
or other situation where they did not first report to work. Another, separate
statute puts law enforcement officers “on the job” even while they drive to
work and it reads:
"Notwithstanding any other provisions of law to the contrary, an injury to a law
enforcement officer as defined in Florida Statutes section 943.10(1), during the
officer's work period or while going to or coming from work in an official law
enforcement vehicle, shall be presumed to be an injury arising out of and in the
course of employment unless the injury occurred during a distinct deviation for
a nonessential personal errand. If, however, the employer's policy or the
collective bargaining agreement that applies to the officer permits such
deviations for nonessential errands, the injury shall be presumed to arise out
of and in the course of employment."
21. Who Must the Worker Inform in Order to Preserve his Rights Under
Workers’ Compensation?
An employee must provide notice of his injury to his employer within 30 days of
his accident. However, there are a few exceptions: the employer or the
employer’s agent had actual knowledge of the accident, the injury could not be
identified without a medical opinion, an employer with four or fewer employees
did not inform the employee that no workers’ compensation benefits were
available, or exceptional circumstances. An employee must provide the
employer notice of an occupational disease within 90 days. An employee
provides adequate notice of his injury when he or she informs the person that
they reasonably believe to be their supervisor of the accident or injury.
22. What Injuries, Conditions and Ailments are Covered Under Florida
Workers’ Compensation?
Generally, Florida’s workers’ compensation Act provides coverage for all
injuries, conditions and ailments that result from “an accidental compensable
injury or death arising out of work performed in the course and the scope of
employment.”
Even preexisting problems may be covered in whole or in part by workers’
compensation. If an injury arising out of and in the course of employment
combines with a preexisting disease or condition to cause or prolong disability
or need for treatment, the employer must pay compensation or benefits
required by this chapter only to the extent that the injury arising out of and in
the course of employment is and remains more than 50 percent responsible for
the injury as compared to all other causes combined and thereafter remains
the major contributing cause of the disability or need for treatment. Major
contributing cause must be demonstrated by medical evidence only.
The Act does not require any compensation or benefits for any subsequent
injury the employee suffers as a result of an original injury arising out of and in
the course of employment unless the original injury is the “major contributing
cause” of the subsequent injury. As defined in Florida’s workers’ compensation
Act, “major contributing cause” means the cause which is more than 50 percent
responsible for the injury as compared to all other causes combined for which
treatment or benefits are sought. Major contributing cause must be
demonstrated by medical evidence only.
Florida’s workers’ compensation Act addresses the circumstance of a mental or
nervous injury and draws a line between those injuries caused by a physical
injury versus those caused by stress, fright or excitement only. Nothing in
Florida’s workers’ compensation Act permits the payment of benefits for mental
or nervous injuries without an accompanying physical injury requiring medical
treatment. Therefore, a mental or nervous injury due to stress, fright, or
excitement only is not an injury by accident and generally is not compensable.
Likewise, a physical injury resulting from mental or nervous injuries
unaccompanied by physical trauma are not compensable under the Act. It
must be that the mental or nervous injury results from the physical injury in
order for the mental or nervous injury to be covered under the Florida Workers'
Compensation Law.
Mental or nervous injuries occurring as a manifestation of a compensable
physical injury must be proven by clear and convincing medical evidence from a
licensed psychiatrist meeting the criteria established in the most recent edition
of the diagnostic and statistical manual of mental disorders published by the
American Psychiatric Association. The compensable physical injury must be and
remain the major contributing cause of the mental or nervous condition and the
compensable physical injury as determined by reasonable medical certainty
must be at least 50 percent responsible for the mental or nervous condition as
compared to all other contributing causes combined.
Workers’ compensation is not payable in Florida for the mental, psychological,
or emotional injury arising out of depression from being out of work or losing
employment opportunities, resulting from a preexisting mental, psychological,
or emotional condition or due to pain or other subjective complaints that
cannot be substantiated by objective, relevant medical findings.
23. What Medical Benefits are Provided under Workers’ Compensation?
Florida’s workers’ compensation Act requires that the employer shall furnish to
the employee such medically necessary remedial treatment, care, and
attendance for such period as the nature of the injury or the process of
recovery may require, durable medical equipment, prostheses, and other
medically necessary apparatus. Remedial treatment, care, and attendance,
including work-hardening programs or pain-management programs accredited
by the Commission on Accreditation of Rehabilitation Facilities or Joint
Commission on the Accreditation of Health Organizations or pain-management
programs affiliated with medical schools, shall be considered as covered
treatment only when such care is given based on a referral by a physician.
Medically necessary treatment, care, and attendance does not include
chiropractic services in excess of 24 treatments or rendered 12 weeks beyond
the date of the initial chiropractic treatment, whichever comes first, unless the
carrier authorizes additional treatment or the employee is catastrophically
injured.
24. What Benefits are Provided under Workers’ Compensation When the
Accident Results in the Death of the Employee?
In the case of an employee’s death from an occupational disease, death
benefits are payable if the death occurs within 350 weeks of the last injurious
exposure to the occupational disease. In the case of an accident that is not an
occupational disease, benefits are payable if death results within 1 year
thereafter or follows continuous disability and results from the accident within
5 years thereafter.
Possible death benefits include funeral expenses, spousal re-education
benefits, and indemnity payment to dependents of the deceased employee.
The employer shall pay actual funeral expenses not to exceed $7,500.00 within
14 days after receiving the bill. The estate of a deceased worker is entitled to
collect wage-loss benefits (such as Temporary Total Disability and Temporary
Partial Disability) to which the deceased worker was entitled during his life.
The surviving spouse is entitled to payment of postsecondary student fees for
instruction at any career center established under Florida Statutes section
1001.44 for up to 1,800 classroom hours or payment of student fees at any
community college established under part III of Florida Statutes chapter 1004
for up to 80 semester hours. These spousal re-education benefits shall be in
addition to other benefits provided for in this section and shall terminate 7
years after the death of the deceased employee, or when $150,000.00 in
indemnity death benefits has been received. To qualify for the spousal re-
educational benefit, the spouse shall be required to meet and maintain the
regular admission requirements of, and be registered at, such career center or
community college, and make satisfactory academic progress as defined by the
educational institution in which the student is enrolled.
Additionally, those who were dependents of the deceased employee have
workers’ compensation claims of their own against the employer and will share
percentages of a lump sum of financial compensation that shall not exceed
$150,000.00 total per accident. The following individuals, if they can prove to
the Judge of Compensation Claims that they were dependent upon the
deceased employee for financial support, may have a claim to a percentage of
the $150,000.00 in death benefits:
1. A “child” of the deceased, which under the definitions in Florida’s workers’
compensation Act includes a posthumous child, a child legally adopted prior to
the injury of the employee, and a stepchild or acknowledged child born out of
wedlock dependent upon the deceased, but does not include married children
unless wholly dependent on the employee.
2. A “grandchild” of the deceased, which under the definitions in Florida’s
workers’ compensation Act means a child as above defined of a child as above
defined.
3. A “Brother” and “sister” of the deceased, which under the definitions in
Florida’s workers’ compensation Act includes stepbrothers and stepsisters, half
brothers and half sisters, and brothers and sisters by adoption, but does not
include married brothers or married sisters unless wholly dependent on the
employee.
Relationship to the deceased giving right to compensation under these
definitions must have existed at the time of the accident, save only in the case
of after-born children of the deceased. Note that a “child,” “grandchild,”
“brother,” and “sister” include only persons who at the time of the death of the
deceased employees are under 18 years of age, or under 22 years of age if a
full-time student in an accredited educational institution.
For those who meet the definitions above with regard to their relationship to
the deceased employee, and who additionally can prove financial dependence
upon the deceased employee at the time of the employee’s death, a maximum
of $150,000.00 is shared among them in the following order of preference, but
such compensation shall be a minimum of $20.00 per week and a maximum of
100% of the statewide average weekly wage, shall not exceed $150,000.00,
and may be less than, but shall not exceed, for all dependents or persons
entitled to compensation, 66 2/3 percent of the deceased employee’s average
wage:
1. To the spouse, if there is no child, 50 percent of the average weekly wage,
such compensation to cease upon the spouse's death.
2. To the spouse, if there is a child or children, 50 percent of the average
weekly wage (such compensation to cease upon the spouse's death) plus 16
2/3 percent on account of the child or children. However, when the deceased is
survived by a spouse and also a child or children, whether such child or children
are the product of the union existing at the time of death or of a former
marriage or marriages, the Judge of Compensation Claims may provide for the
payment of compensation in such manner as may appear to the Judge of
Compensation Claims just and proper and for the best interests of the
respective parties and, in so doing, may provide for the entire compensation to
be paid exclusively to the child or children; and, in the case of death of such
spouse, 33 1/3 percent for each child. However, upon the surviving spouse's
remarriage, the spouse shall be entitled to a lump-sum payment equal to 26
weeks of compensation at the rate of 50 percent of the statewide average
weekly wage, unless the $150,000.00 limit provided in this paragraph is
exceeded, in which case the surviving spouse shall receive a lump-sum
payment equal to the remaining available benefits in lieu of any further
indemnity benefits. In no case shall a surviving spouse's acceptance of a lump-
sum payment affect payment of death benefits to other dependents.
3. To the child or children, if there is no spouse, 33 1/3 percent for each child.
4. To the parents, 25 percent to each, such compensation to be paid during the
continuance of dependency.
5. To the brothers, sisters, and grandchildren, 15 percent for each brother,
sister, or grandchild.
Where a person or class of persons cannot receive the percentage of
compensation specified as payable to or on account of such person or class,
there shall be available to such person or class that proportion of such
percentage as, when added to the total percentage payable to all persons
having priority of preference, will not exceed a total of said 66 2/3 percent,
which proportion shall be paid:
(a) To such person; or
(b) To such class, share and share alike, unless the judge of compensation
claims determines otherwise.
If the judge of compensation claims determines that payments in accordance
with the scheme summarized above would provide no substantial benefit to
any person of such class, the judge of compensation claims may provide for the
payment of such compensation to the person or persons within such class who
the judge of compensation claims considers will be most benefited by such
payment. Upon the cessation of compensation to any person, the
compensation of the remaining persons entitled to compensation, for the
unexpired part of the period during which their compensation is payable, shall
be that which such persons would have received if they had been the only
persons entitled to compensation at the time of the decedent's death.
25. What Lost Wages and Indemnity Benefits are Provided under Workers’
Compensation?
Payment for lost wages under Florida’s workers’ compensation Act are called
either Temporary Total Disability, Temporary Partial Disability, Impairment
Benefits, or Permanent Total Disability, depending on when and why they are
paid. These benefits replace in whole or in part the payment of “wage loss
benefits” which were first deleted from the Act in part in 1993 and in whole in
2003.
When an employee’s injury takes him out of work completely but temporarily,
or stated somewhat differently, in a case of disability total in character but
temporary in quality, 66 2/3 percent of the employee’s average weekly wages
shall be paid to the employee during the continuance of that temporary total
disability, but not to exceed 104 weeks of benefits. Such benefits are called
“Temporary Total Disability” benefits. Once the employee reaches this
maximum number of weeks allowed, or if the employee reaches the date of
maximum medical improvement (whichever occurs earlier), temporary disability
benefits shall cease and the injured worker's permanent impairment shall be
determined.
When an employee’s injury temporarily takes him out of full duty work but not
completely out of work, or stated somewhat differently, in case of temporary
partial disability, compensation shall be equal to 80 percent of the difference
between 80 percent of the employee's average weekly wage and the salary,
wages, and other remuneration the employee is able to earn post-injury, as
compared weekly; however, weekly temporary partial disability benefits may
not exceed an amount equal to 66 2/3 percent of the employee's average
weekly wage at the time of accident. Such benefits are called “Temporary
Partial Disability” benefits. Note that the number of weeks of payment of
Temporary Partial Disability benefits, plus the number of weeks of payment of
Temporary Total Disability benefits, may not exceed a combined total of 104
weeks of benefits. Once the injured employee reaches the maximum number
of weeks, temporary disability benefits cease and the injured worker's
permanent impairment must be determined. The due date for the payment of
Temporary Partial Disability benefits differs depending on whether the
employee can return to that employer’s workplace within his temporary
restrictions. When an employee returns to work with the restrictions resulting
from the accident and is earning wages less than 80 percent of the pre-injury
average weekly wage, the first installment of temporary partial disability
benefits is due 7 days after the last date of the post-injury employer's first
biweekly work week; and thereafter, payment for temporary partial benefits
shall be paid biweekly no later than the 7th day following the last day of each
biweekly work week. If the employee is unable to return to work with the
restrictions resulting from the accident and is not earning wages, salary, or
other remuneration, temporary partial disability benefits shall be paid no later
than the last day of each biweekly period.
When an employee’s injury forever removes him from the workforce, or stated
somewhat differently, in a case of total disability adjudged to be permanent,
66 2/3 percent of the employee’s average weekly wages shall be paid to the
employee during the continuance of such permanent, total disability. Such
benefits are called “Permanent Total Disability” benefits. No compensation
shall be payable for Permanent Total Disability if the employee is engaged in,
or is physically capable of engaging in, at least sedentary employment. In the
following cases, an injured employee is presumed to be permanently and
totally disabled unless the employer or carrier establishes that the employee is
physically capable of engaging in at least sedentary employment within a 50-
mile radius of the employee's residence:
1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of
use of that appendage;
3. Severe brain or closed-head injury as evidenced by:
a. Severe sensory or motor disturbances;
b. Severe communication disturbances;
c. Severe complex integrated disturbances of cerebral function;
d. Severe episodic neurological disorders; or
e. Other severe brain and closed-head injury conditions at least as severe in
nature as any condition provided in sub-subparagraphs a.–d.;
4. Second-degree or third-degree burns of 25 percent or more of the total body
surface or third-degree burns of 5 percent or more to the face and hands; or
5. Total or industrial blindness.
In all other cases, in order to obtain permanent total disability benefits, the
employee must establish that he or she is not able to engage in at least
sedentary employment, within a 50-mile radius of the employee's residence,
due to his or her physical limitation. Entitlement to such benefits shall cease
when the employee reaches age 75, unless the employee is not eligible for
social security benefits under 42 U.S.C. section 402 or section 423 because the
employee's compensable injury has prevented the employee from working
sufficient quarters to be eligible for such benefits, notwithstanding any age
limits. If the accident occurred on or after the employee reaches age 70,
benefits shall be payable during the continuance of permanent total disability,
not to exceed 5 years following the determination of permanent total disability.
When an employee’s injury forever disables him but is not so disabling as to
forever remove him from the workplace, the employer or its carrier/servicing
agent shall pay the employee Impairment Benefits for a period based on the
employee’s impairment rating. All Impairment Benefits shall be based on an
impairment rating using the 1996 Florida Uniform Permanent Impairment Rating
Schedule which can be found reprinted in Appendix VII to Patrick John
McGinley, Florida Workers’ Compensation, 10 Florida Practice Series pages
1165-1311 (Thomson-West 2006 edition). Determination of the employee’s
permanent impairment must be made by a physician licensed under F.S.A.
chapter 458, a doctor of osteopathic medicine licensed under Florida Statutes
chapters 458 and 459, a chiropractic physician licensed under Florida Statutes
chapter 460, a podiatric physician licensed under Florida Statutes chapter 461,
an optometrist licensed under Florida Statutes chapter 463, or a dentist
licensed under Florida Statutes chapter 466, as appropriate considering the
nature of the injury. No other persons are authorized to render opinions
regarding the existence of or the extent of permanent impairment. The
employee's entitlement to Impairment Benefits begins the day after the
employee reaches maximum medical improvement or the expiration of
temporary benefits, whichever occurs earlier, and continues for the following
periods:
1. Two weeks of benefits are to be paid to the employee for each percentage
point of impairment from 1 percent up to and including 10 percent.
2. For each percentage point of impairment from 11 percent up to and including
15 percent, 3 weeks of benefits are to be paid.
3. For each percentage point of impairment from 16 percent up to and including
20 percent, 4 weeks of benefits are to be paid.
4. For each percentage point of impairment from 21 percent and higher, 6
weeks of benefits are to be paid.
Note that, despite the above, an employee's entitlement to Impairment
Benefits ends upon the death of the employee. Also note that Impairment
Benefits are payable only for impairment ratings for physical impairments. If
objective medical findings can substantiate a permanent psychiatric impairment
resulting from the accident, Impairment Benefits are limited for the permanent
psychiatric impairment to 1-percent permanent impairment.
When mental or nervous injuries are covered by Florida’s workers’
compensation Act, the indemnity benefits paid to the employee are subject to
additional caps beyond those maximums established for physical injuries. In
the instances when the mental or nervous injury results in lost wages, in no
event shall Temporary Total Disability and/or Temporary Partial Disability
benefits for the compensable mental or nervous injury be paid for more than 6
months after the date of maximum medical improvement for the injured
employee's physical injury, and this maximum of 6 months of payments shall be
included within and subject to the maximum payment period of 104 weeks as
provided in Florid Statutes section 440.15(2) and Florida Statutes section
440.15(4). When the mental or nervous injury itself results in a permanent
psychiatric impairment, Impairment Benefits payable for that permanent
impairment are limited to one percent impairment.
26. Will the Worker Still Receive Money from Workers’ Compensation If He
Receives or is Entitled to Receive Unemployment Compensation?
The employee’s unemployment benefits affect his workers’ compensation
indemnity payments as follows. No compensation benefits shall be payable for
Temporary Total Disability or Permanent Total Disability from workers’
compensation for any week in which the injured employee has received, or is
receiving, unemployment compensation benefits. If an employee is entitled to
Temporary Partial Disability benefits and is also entitled to unemployment
compensation benefits, then the unemployment compensation benefits shall be
primary, the Temporary Partial Disability benefits shall be supplemental only,
and the sum of the two benefits may not exceed the amount of Temporary
Partial Disability benefits which would otherwise be payable.
27. Will the Worker Still Receive Money from Workers’ Compensation If He
Refuses to Return to Work, is Fired, or Quits?
If an injured employee refuses employment that is suitable for him in his post-
injury capacity, and that is offered to or procured for him, then the employee
shall not be entitled to any compensation at any time during the continuance of
his refusal to return to work unless at any time in the opinion of the judge of
compensation claims such refusal is justifiable. Time during the continuance of
his refusal to return to work shall be counted toward the 104 week maximum
cap on the payment of benefits for Temporary Total Disability and Temporary
Partial Disability if the refusal happens before the employee reaches his
Maximum Medical Improvement (“MMI”) and counted toward the number of
weeks of Impairment Benefits for that portion of the refusal that happens after
the employee reaches MMI.
If an injured employee quits while receiving Temporary Partial Disability
benefits without just cause (as determined by the Judge of Compensation
Claims), Temporary Partial Disability benefits shall be payable based on the
deemed earnings of the employee as if she or he had remained employed.
If an injured employee quits or is fired when receiving Temporary Partial
Disability, the employee must give his former employer a written affidavit
containing the name of her or his new employer, the place of employment, and
the amount of wages being received; and, until she or he gives such affidavit,
the compensation for Temporary Partial Disability will cease. The former
employer may also at any time demand that the former employee provide an
additional written affidavit containing the name of her or his employer, the
place of her or his employment, and the amount of wages she or he is
receiving; and if the employee, upon such demand, fails or refuses to furnish
the written affidavit, then her or his right to compensation for Temporary
Partial Disability shall cease until the written affidavit is furnished.
28. Can the Employer Recover Workers’ Compensation Payments Made to
an Employee Who was Not Entitled to Receive that Compensation?
If an employee has received a sum as an indemnity benefit under any
classification or category of benefit under Florida’s workers’ compensation Act
to which she or he is not entitled, the employee is liable to repay that sum to
the employer or the carrier/servicing agent or to have that sum deducted from
the employee’s future benefits; however, a partial payment of the total
repayment may not exceed 20 percent of the amount of the biweekly payment.
When an employee is injured and the employer pays the employee's full wages
or any part thereof during the period of disability, or pays medical expenses for
such employee, and the case is contested by the employer’s insurance carrier
(or by both the carrier and employer) and thereafter the carrier, either
voluntarily or pursuant to an award, makes a payment of compensation or
medical benefits, the employer shall be entitled to reimbursement to the extent
of the compensation paid or awarded, plus medical benefits, if any, out of the
first proceeds paid by the carrier in compliance with such voluntary payment or
award, provided the employer furnishes satisfactory proof to the Judge of
Compensation Claims of such payment of compensation and medical benefits.
Likewise, an employer may recover from his insurance carrier payments made
by the employer to the injured employee upon proper proof of entitlement.
29. What Benefits Other than Medicals and Lost Wages are Provided by
Workers’ Compensation?
Additional benefits available under Florida’s workers’ compensation Act include
cash advances of future payments, penalties, interest, costs, attorney’s fees,
modification of past compensation orders, and lump-sum settlements.
Advances of future workers’ compensation payments may be voluntarily given
by an employer or demanded by an employee (and granted after approval by a
Judge of Compensation Claims). Liability of an employer for future payments
of compensation may not be discharged by advance payment unless prior
approval of a Judge of Compensation Claims or the Florida Department of
Financial Services has been obtained. If the employer has made advance
payments of compensation, she or he shall be entitled to be reimbursed out of
any unpaid installment or installments of compensation due.
Penalties may be owed when an indemnity payment is late. If any installment
of compensation for death or dependency benefits, or compensation for
disability benefits payable without an award is not paid within 7 days after it
becomes due, there shall be added to such unpaid installment a penalty of an
amount equal to 20 percent of the unpaid installment, which shall be paid at
the same time as, but in addition to, such installment of compensation. This
penalty shall not apply to late payments resulting from conditions over which
the employer or carrier had no control.
Interest may also be owed on late indemnity payments. In addition to any
other penalties for late payment, if any installment of compensation is not paid
when it becomes due, the employer, carrier, or servicing agent shall pay
interest thereon at the rate of 12 percent per year from the date the
installment becomes due until it is paid. The interest payment shall be the
greater of the amount of interest due or $5.00.
Costs and attorney’s fees are payable in certain circumstances. If the Judge of
Compensation Claims or any court having jurisdiction of proceedings in respect
of any claim or compensation order determines that the proceedings in respect
of such claim or order have been instituted or continued without reasonable
ground, the cost of such proceedings (including taxable costs plus attorney’s
fees) shall be assessed against the party who has so instituted or continued
the proceedings. Taxable costs of the proceedings are awarded to the
prevailing party (whether it be the employee or the employer and his insurance
carrier/servicing agent) in proceedings before a Judge of Compensation
Claims. The successful employee’s attorney’s fees are payable by the
unsuccessful employer and its insurance carrier/servicing agent in the amount
of a statutory percentage of benefits won as detailed below and in Patrick John
McGinley, Florida Workers’ Compensation, 10 Florida Practice Series sections 25:
1 through 25:47.
Modification of past compensation orders may be made by a Judge of
Compensation Claims, on the ground of a change in condition or because of a
mistake in a determination of fact, at any time prior to 2 years after the date of
the last payment of compensation pursuant to the compensation order the
party seeks to modify, or at any time prior to 2 years after the date that copies
of an order rejecting a claim are mailed to the parties. This right to
modification empowers a Judge of Compensation Claims to issue a new
compensation order that may terminate, continue, reinstate, increase, or
decrease such compensation or award compensation. The new order shall not
affect any compensation previously paid, except that an award increasing the
compensation rate may be made effective from the date of the injury, and, if
any part of the compensation due or to become due is unpaid, an award
decreasing the compensation rate may be made effective from the date of the
injury, and any payment made prior thereto in excess of such decreased rate
shall be deducted from any unpaid compensation, in such manner and by such
method as may be determined by the Judge of Compensation Claims.
A lump-sum settlement can be paid to the employee. The employee may waive
all rights to any and all benefits under Florida’s workers’ compensation Act by
entering into a settlement agreement releasing the employer and the carrier
from liability for workers' compensation benefits in exchange for a lump-sum
payment to the claimant.
30. What About the Worker’s Pain and Suffering, Mental Anguish, Loss of
Consortium, Loss of Enjoyment of Life and Similar Non-Economic Damages
under Workers’ Comp?
Such benefits are not available under Florida’s workers’ compensation Act.
31. What if Other Insurance Also Covers the Workers’ Compensation
Injury?
Florida workers’ compensation benefits are not payable in respect of the
disability or death of any employee covered by the Federal Employer's Liability
Act, the Longshoremen's and Harbor Worker's Compensation Act, the Defense
Base Act, or the Jones Act. On the contrary, workers covered by out-of-state
workers’ compensation laws may still be covered by Florida’s workers’
compensation Act under the Act’s following provision:
If an accident happens while the employee is employed elsewhere than in this
state, which would entitle the employee or his or her dependents to
compensation if it had happened in this state, the employee or his or her
dependents are entitled to compensation if the contract of employment was
made in this state, or the employment was principally localized in this state.
However, if an employee receives compensation or damages under the laws of
any other state, the total compensation for the injury may not be greater than
is provided in this chapter.
Generally, the above-quoted provision of the Act means that the worker if
otherwise covered under Florida’s workers’ compensation Act is not denied
benefits under the Act for the reason that he received benefits under another
state’s workers’ compensation program for that same accident, but the receipt
of such benefits may serve as an offset from and reduction of his Florida
benefits received for that same accident.
Sometimes automobile insurance and workers’ compensation insurance can
cover the same accident. The fact that the claimant was injured while in an
automobile can transform a simple worker's compensation case into a more
complex one. This is true due to the claimant's possible concurrent coverage
under the Florida’s workers' compensation Act in F.S.A. Chapter 440 and the
Florida Motor Vehicle No-Fault Law in F.S.A. Chapter 627. To use the common
vernacular, we call the Florida Motor Vehicle No-Fault Law the "PIP Statute"
(referring to Personal Injury Protection, or “PIP” coverage). For detailed advice
on the intricacies of Florida's PIP Statute, the best resource available is Russel
Lazega's book called Florida Motor Vehicle No-Fault Law: Personal Injury
Protection (P.I.P.), 7 Florida Practice Series (Thomson-West 2006 edition). For
advice on the concurrent coverage of PIP and workers’ comp, please see
Patrick John McGinley, Florida Workers’ Compensation, 10 Florida Practice
Series, Chapter 25B (Thomson-West 2006 edition). Therein we explain how
PIP coverage is primary over workers' compensation coverage. For this
reason, an employee whose accident yields coverage under both PIP and work
comp routinely seeks simultaneous payment from both his PIP and his work
comp carrier.
32. Is Workers’ Compensation Subject to Creditor Liens?
With regard to liens against the employee, no assignment, release, or
commutation of compensation or benefits due or payable under Florida’s
workers’ compensation Act shall be valid, and such compensation and benefits
shall be exempt from all claims of creditors, and from levy, execution and
attachments or other remedy for recovery or collection of a debt, which
exemption may not be waived. However, the exemption of workers'
compensation claims from creditors does not extend to claims based on an
award of child support or alimony.
With regard to liens against the employer, compensation shall have the same
preference of lien against the assets of the workers’ compensation insurance
carrier or the employer without limit as a claim for unpaid wages or otherwise.
33. Does an Employee Who is Injured on the Job Have a Right to an
Attorney?
A worker is not guaranteed the right to an attorney under Florida’s workers’
compensation Act. However, a worker that is without an attorney can request
the Employee Assistance and Ombudsman Office for assistance in obtaining
workers’ compensation benefits.
34. How is the Worker’s Attorney Paid and How Much is He Paid?
F.S.A. § 440.34 as amended eliminates hourly attorney fees to the worker's
attorney in most circumstances. In a disputed medical-only claim where “the
circumstances of the particular case warrant such action,” the Judge of
Compensation Claims “may approve an alternative attorney's fee not to
exceed $1,500.00 only once per accident based on a maximum hour rate of
$150.00 per hour, if the judge of compensation claims expressly finds that the
attorney's fee amount provided for. . . based on benefits secured fails to fairly
compensate the attorney for a disputed medical-only claim . . . .” Otherwise,
“any attorney's fees approved by a JCC for benefits secured on behalf of a
claimant must equal 20% of the first $5,000.00 of the amount of benefits
secured, 15% of the next $5,000.00 of the amount of the benefits secured,
10% of the remaining amount of the benefits secured to be provided during
the first 10 years after the date the claim is filed, and 5% of the benefits
secured after 10 years.” Also, “in the event an offer to settle an issue pending
before a judge of compensation claims, including attorney's fees as provided
for in this section, is communicated in writing to the claimant or the claimant's
attorney at least 30 days prior to the trial date on such issue, for purposes of
calculating the amount of attorney's fees to be taxed against the employer or
carrier, the term ‘benefits secured’ shall be deemed to include only that amount
awarded to the claimant the amount specified in the offer to settle. If multiple
issues are pending before the judge of compensation claims, said offer of
settlement shall address each issue pending and shall state explicitly whether
or not the offer on each issue is severable. The written offer shall also
unequivocally state whether or not it includes medical witness fees and
expenses and all other costs associated with the claim.” In any proceedings
before a JCC, the party who prevails will recover taxable costs from the non-
prevailing party.
35. How is the Employer’s Attorney Paid and How Much is He Paid?
Employer’s attorneys are typically paid by the hour by their clients. The hourly
rate charged by employer’s attorneys differ depending upon the region of the
state. Unlike the successful employee, the successful employer is not entitled
to attorney’s fees for successfully defending a workers’ compensation case
against an employee. An employer is entitled to reimbursement of their
taxable court costs from the employee if the employer wins.
36. How Can I Get Advice from a Lawyer Specializing in Florida Workers’
Compensation?
You would most likely find good advice from a lawyer who has substantial
experience in prosecuting and defending Florida workers’ compensation case.
Patrick John McGinley has more than 15 years of workers' compensation
experience and can be reached at 407-681-2700 or through the link provided
in this website.
37. Where Can I Find a Book Covering All of Florida’s Workers’
Compensation Statutes, Administrative Rules, Litigation Procedures and
Case Law Decisions?
Thomson West Publishing offers a detailed text called Florida Workers’
Compensation which appears as volumes 9 and 10 of West’s Florida Practice
Series and which is written by Patrick John McGinley. To purchase this text,
please visit www.west.thomson.com to order online. This text can also be
searched and read on the WestLaw subscription database available at www.
westlaw.com.
Workers' Compensation Frequently Asked Questions
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Do you have questions about
Florida's Workers'
Compensation Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based
solely upon advertising. Before you
decide, ask us to send you free written
information about our qualifications and
experience. Call 407-681-2700.
Do you have questions about
Florida's Workers'
Compensation Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based solely
upon advertising. Before you decide, ask
us to send you free written information
about our qualifications and experience.
Call 407-681-2700.
Do you have questions about
Florida's Workers'
Compensation Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based solely
upon advertising. Before you decide,
ask us to send you free written
information about our qualifications and
experience. Call 407-681-2700.
Do you have questions about
Florida's Workers'
Compensation Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based solely
upon advertising. Before you decide, ask
us to send you free written information
about our qualifications and experience.
Call 407-681-2700.
Do you have questions about
Florida's Workers'
Compensation Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based solely
upon advertising. Before you decide, ask
us to send you free written information
about our qualifications and experience.
Call 407-681-2700.
Do you have questions about
Florida's Workers'
Compensation Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based solely
upon advertising. Before you decide, ask
us to send you free written information
about our qualifications and experience.
Call 407-681-2700.
Do you have questions about
Florida's Workers'
Compensation Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based solely
upon advertising. Before you decide, ask
us to send you free written information
about our qualifications and experience.
Call 407-681-2700.
Do you have questions about
Florida's Workers' Compensation
Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based solely
upon advertising. Before you decide, ask us
to send you free written information about our
qualifications and experience. Call
407-681-2700.
Do you have questions about
Florida's Workers'
Compensation Law?
CONTACT US TODAY:
(407) 681-2700
Law Office of Patrick John McGinley, P.A.
2265 Lee Road Suite 100
Winter Park, FL 32789
The hiring of a lawyer is an important
decision that should not be based solely
upon advertising. Before you decide, ask
us to send you free written information
about our qualifications and experience.
Call 407-681-2700.
| Call us today at (407) 681-2700 |