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THE 2003 FLORIDA WORKERS' COMPENSATION LAW
"The Good, the Bad, and the Ugly"

First, the good news! Death benefits available for survivors of an employee who dies as the result of accidental injury arising out of the employment have been increased from $100,000 in the aggregate to $150,000 and allowable funeral expenses have increased from $5,000 to $7,500. All the other news about this law is either "bad" or "ugly". Governor Bush and his supporters have seen to it that the only victims of industrial accidents who can be happy with this law are dead!

1. EMPLOYERS RESPONSIBLE FOR WC BENEFITS. Not all employers are responsible for providing WC benefits. Only employers with 4 or more employees are required to provide WC benefits; however, employers considered to be engaged in the construction industry are required to provide WC benefits if they employ 1 or more employees. Certain classes of "employees" are excluded from coverage, including independent contractors, domestic servants, professional athletes, certain classes of agricultural workers, truck drivers who are owner-operators, certain kinds of taxicab or limousine drivers, some musicians or theatrical performers, some real estate agents, and some classes of volunteers.

2. COMPENSABLE ACCIDENT OR INJURY. The WC Law is considered to be a "no-fault" law. It is not necessary to prove that the employer was negligent or otherwise "at fault" in causing your injury. Likewise, WC benefits may not be denied to you just because you were negligent or at fault in causing your own injury; however, benefits may be limited if your injury was the result of your failure to use prescribed safety equipment or your failure to follow prescribed safety rules. Because the WC law imposes liability for work-related injuries without regard to fault, the WC law protects the employer from any other liability that the employer may have to the injured employee. In other words, you may not sue your employer for damages because you can prove that the employer was at fault in causing your injury. A compensable injury is considered to be any injury that occurs by "accident arising out of and in the course of the employment". An "accident" means only "an unexpected or unusual event or result that happens suddenly". Under this definition it is not necessary to prove that the injury was the result of a slip, trip, or fall. For example, back injuries resulting from lifting activities are usually covered. An injury "arises out of the employment" if work performed in the course of the employment is the "major contributing cause" of the injury. The concept of "major contributing cause" is frequently used by employers and insurance carriers to deny benefits for injuries that involve aggravation of a pre-existing condition even when that pre-existing condition was not symptomatic prior to your accident and even if you were unaware that the condition existed. Although the courts had limited the application of the "major contributing cause" rule, the legislature has now attempted to reverse those decisions by making the "major contributing cause" rule even more restrictive. "Course of employment" refers to the time period within which you are considered to be "on the job" and generally excludes travel to and from work, certain employer-sponsored social and recreational activities, and limits the periods during which traveling employees are covered. WC benefits are denied to an injured employee whose accidents is the result of illicit use of drugs or alcohol and under some circumstances may be disallowed if the injured employee tests positive for drugs or alcohol following an accidental injury. WC benefits may also be denied if the injured employee has engaged in activities related to his or her claim that are considered to be "fraudulent" and include giving false information to the employer or its insurance carrier concerning any material matter concerning the injury or accident. Employees who have misrepresented their medical history or prior receipt of disability compensation on an employment application may be denied compensation for a subsequent injury.

3. DISABILITY COMPENSATION. Disability compensation is based a portion of you average weekly wages (AWW) at the time of your accident. It is important to understand that the WC Law is not intended to compensate you for 100% of your lost wages or earnings that may be the result of your accident. Your AWW is based on your earnings, including overtime and bonuses, earned over the 13 weeks preceding your accident. Earnings from a "second job" you held at the time of your accident (called "concurrent employment") may also be included in the calculation of your AWW if the concurrent employment was covered under the WC Law and your injury disables you from the concurrent employment. If you were not employed in the same employment during substantially the whole of the 13 week prior to your accident, then the wages of a similar employee who was employed during the 13 week period may be used. Special rules apply for seasonal and part-time workers. Disability compensation is paid based on the following classifications:

a. TEMPORARY TOTAL DISABILITY. An authorized physician must certify that you are unable to work, that you are under active medical care, and have not reached maximum medical improvement. Weekly compensation is based on 2/3rds of your AWW. Temporary total disability benefits are also paid while you are participating in a job retraining program sponsored by the Department of Education (see Rehabilitation Services, below).

b. TEMPORARY PARTIAL DISABILITY. An authorized physician must certify that you are under active medical care, have not reached maximum medical improvement, and are limited to some form of restricted or less than full-time, full-duty work. Weekly compensation is based on 80% of the difference between 80% of your AWW and the earnings you are able to make while in a limited work status. For example, if you earned $400 per week when injured and you returned to work earning $200 per week you would receive $96 per week ($400 X 80% = $320 minus $200 = $120 X 80% = $96). If your employer cannot provide limited duty work, you may be required to make good-faith efforts to locate suitable work to be eligible for benefits. BENEFITS FOR BOTH TEMPORARY TOTAL AND TEMPORARY PARTIAL DISABILITY ARE LIMITED TO 104 WEEKS IN THE AGGREGATE REGARDLESS OF WHETHER YOU HAVE RECOVERED FROM OR BEEN DISCHARGED FROM TREATMENT.

c. IMPAIRMENT BENEFITS. These benefits are payable if you have reached maximum medical improvement and your physician certifies that your accident has caused a permanent impairment that is ratable under the Florida Uniform Impairment Rating Schedule. Weekly impairment benefits are based on 75% of your AWW, but may be reduced to 50% of your AWW for each week in which your earned income equals or exceeds your AWW. The number of weeks impairment benefits are payable is limited to the following schedule:

i. 2 weeks of impairment benefits for each percentage point for ratings from 1% through 10%;

ii. 3 weeks for each percentage point for ratings from 11% through 15%;

iii. 4 weeks for each percentage point from 16% through 20%;

iv. 6 weeks for each percentage point of 21% or higher.

d. PERMANENT TOTAL DISABILITY. These benefits are payable only if you have reached maximum medical improvement and are permanently unable to engage in even sedentary work within a 50 mile radius of your residence. It is presumed that you are entitled to these benefits if you have suffered certain types of severe brain or spinal cord injuries, severe burns, or total or industrial blindness. Weekly PTD benefits are paid at 2/3rds of your AWW for as long you remain so disabled or until your reach age 75. These benefits are subject to an annual cost-of-living increase of 3% per year. These benefits may be forfeited if you fail to participate in periodic vocational evaluations to determine your ability to work or you fail to participate in recommended vocational retraining programs.

4. PAYMENT OF COMPENSATION. No weekly compensation is payable for the first 7 days of disability unless you are disabled for 21 days. The first payment of compensation is due 14 days after the employer has notice of the injury and thereafter on a biweekly basis. If payment is not made within 7 days after payment is due, a 20% penalty is added together with interest at 12% per annum. Penalties and interest cannot be collected if the late payment is due to circumstances over which the employer/carrier had no control.

5. MEDICAL TREATMENT. The employer/carrier has the obligation to provide all medically necessary treatment for your injuries. HOWEVER, YOUR RIGHT TO SELECT THE DOCTOR WHO TREATS YOU IS VERY LIMITED AND IS LARGELY CONTROLLED BY THE EMPLOYER OR ITS INSURANCE CARRIER. The only free choice you have is in the right to select the pharmacy from which your prescriptions are filled. You have the right to make ONE change of physician after an employer-authorized physician has initiated treatment. The employer/carrier has the right to transfer your care to another physician if an independent medical examination determines that you are not making appropriate progress in recuperation. An employer may elect to provide medical care through a "managed care arrangement" under which you may have other rights to obtain changes of physician or second opinions; however, managed care plans usually restrict you to physicians within the plan's provider network. You are not responsible for payment of authorized medical treatment prior to your date of maximum medical improvement. Your physician or other health care provider may not charge you the difference between the amount allowed for his services under the Worker's Compensation Fee Schedule and the amount of his customary charge for similar services. However, upon reaching maximum medical improvement you will be obligated to pay a co-payment of $10 per visit for medical services. The co-payment does not apply to emergency services.

6. REHABILITATION SERVICES. The Department of Education upon the application of the employee or employer shall conduct an investigation to determine whether the injured employee should be referred for vocational evaluation and, if appropriate, vocational retraining. Vocational retraining is generally limited to cases where retraining is necessary to allow the injured worker to earn the wages earned at the time he or she was injured. In other words, if you earned minimum wages digging ditches and now are limited to light duty work, you are still able to earn minimum wages and are not eligible for retraining. The ability of the Department to offer job retraining is often limited by the injured worker's ability to learn a new occupation. For example, persons who have only limited ability to read or write may not be able to participate in job retraining classes. If the Department does sponsor you in a retraining program, you are to be paid temporary total disability benefits while participating in the retraining program for up to, but not in excess of, 52 weeks. BEFORE OCTOBER 1, 2003, THESE ADDITIONAL TEMPORARY TOTAL BENEFITS WERE PAID IN ADDITION TO AND NOT PART OF THE 104 WEEK LIMITATION ON TEMPORARY BENEFITS. It is quite likely that many if not most injured employees who have been injured seriously enough to require job retraining may not be able to participate in job retraining because they will have exhausted their temporary benefits before they are discharged from treatment. The 2003 legislature has made job retraining a hollow promise! To request a vocational evaluation you should contact the Division of Vocational Rehabilitation at one of the following locations or in Tallahassee at (850) 245-3470:

Division of Vocational Rehabilitation Bureau of Rehabilitation and Reemployment Services Suite 203, Lake Bldg. 9400 Fourth Street North St. Petersburg, FL 33702 (727) 570-3052

Division of Vocational Rehabilitation Bureau of Rehabilitation and Reemployment Services 9215 North Florida Avenue, Suite 107 Tampa, FL 33612 (813) 930-7545




7. TIME LIMIT ON CLAIMS. If you have not been paid or provided benefits to which you believe you are entitled, you must file a claim (called a petition for benefits) within 2 years after the date on which you knew or should have known that the injury arose out of work performed in the course of your employment. A claim not filed within such period will be barred. The payment of benefits or receipt of authorized medical care and treatment tolls the 2 year period for 1 year from the date of such payment. This 1 year extension does not apply to issues of compensability, date of maximum medical improvement, or permanent impairment.

8. CLAIMS FOR COMPENSATION BENEFITS. An injured employee's only responsibility upon being injured is to promptly report the accidental injury to the employer. By law the accidental injury must be reported within 30 days of its occurrence. Practically speaking, the failure to immediately report an injury is likely to result in considerable suspicion of fraud that may serve to delay benefits. All disability and medical benefits are supposed to be provided without the necessity of taking legal action by filing a claim. It is only when benefits have not been provided as and when due that a claim (referred to as a Petition for Benefits) need be filed. You must sign your Petition for Benefits and the petition must describe the benefits that are claimed with great specificity. Your entitlement to the benefits claimed is determined by a non-jury trial before a Judge of Compensation Claims. The introduction of evidence is governed by formal rules of evidence and many additional restrictions imposed by the WC Law particularly with respect to the introduction of medical evidence and opinion. You are required to participate in a mediation conference before your claim goes to trial. The mediation conference is required to allow the parties an opportunity to resolve the claim without trial. The mediation conference is required to be held within 130 days after the petition is filed. If the petition is not resolved at mediation, the case must be scheduled for trial within 90 days after the mediation conference or 210 days after the petition is filed. Claims involving benefits of a value of $5,000 or less may be subject to an expedited hearing schedule. The sad fact is that due to the complexity of the WC Law and technical rules of evidence and procedure, it is virtually impossible for even a sophisticated employee to pursue a WC claim without the assistance of counsel. WARNING: EFFECTIVE OCTOBER 1, 2003, THE LOSING PARTY IN A WORKERS' COMPENSATION CLAIM WILL BE RESPONSIBLE FOR PAYING THE COURT COSTS INCURRED BY THE PREVAILING PARTY. This means that if you go to trial and lose, you may have to pay the employer or insurance company's court costs in defending the claim.

9. 9. ATTORNEY FEES. Prior to October 1, 2003, an injured worker had the right to employ an attorney to prosecute a claim (petition) for benefits. If your attorney was successful in obtaining the benefits claimed, the employer or its insurance carrier had to pay your attorney's fee rather than that fee being taken out of the benefits recovered. The amount of the fee was based on a guideline of 20% of the first $5,000 of benefits recovered, 15% of the next $5,000, and 10% of benefits recovered in excess of $10,000. Because there is often no direct relationship between the amount of benefits recovered and the amount of time and effort required by the attorney to recover those benefits, the WC law had provided that the amount of the fee could exceed the guideline when the guideline failed to produce a "reasonable fee" for the amount of time and effort required to recover those benefits. This provision made it possible for attorneys to handle smaller cases or cases that only involved medical care that could not otherwise produce sufficient fees to justify attorney involvement. The 2003 legislature has now eliminated the ability of your attorney to obtain fees in excess of the statutory guideline and has placed a further unreasonable limitation on the ability to obtain fees for "medical only" claims. The legislature's elimination of the "reasonable fee" provision from the current law means that your attorney may not be able to handle your case or obtain all benefits to which you may be entitled. When your attorney undertakes to pursue a WC claim he or she must usually advance the money necessary to pay for medical reports, court reporting fees, and other out-of-pocket expenses necessary to adequately present your claim. These expenses can often run several hundred if not thousands of dollars. No attorney can remain in practice unless he or she is able to obtain attorney fees that are sufficient to offset the risk assumed in advancing the funds for those expenses. Now as never before, your attorney must carefully consider whether he or she can afford to handle your case. There can be no doubt that under this law many justifiable claims simply will not be made because no attorney can afford the time, effort, and expense involved. WARNING: EFFECTIVE OCTOBER 1, 2003, YOU MAY BE RESPONSIBLE FOR PAYING YOUR OWN ATTORNEY'S FEE IF YOU FAIL TO ACCEPT THE EMPLOYER/CARRIER'S OFFER TO SETTLE THE ISSUE, INCLUDING ATTORNEY FEES, PRESENTED WITHION 30 DAYS OF TRIAL. IN SUCH CASES THE EMPLOYER/CARRIER WILL ONLY BE RESPONSIBLE FOR ATTORNEY FEES FOR THE AMOUNT OF BENEFITS RECOVERED IN EXCESS OF THE AMOUNT OFFERED IN SETTLEMENT.

10. SETTLEMENTS. If you are not represented by an attorney, a lump-sum settlement of your right to receive worker's compensation benefits may be made at any time if the employer/carrier has made a written denial of benefits within 120 days of the date of injury. If the employer/carrier has not denied benefits within 120 of the date of injury, a lump-sum settlement may not be made until you have reached maximum medical improvement. Neither party can force the other party to make a lump-sum settlement, nor does the Judge of Compensation Claims have the power to force either party to make such a settlement. The judge must approve any lump-sum settlement made. If you are represented by an attorney, a settlement may be made at any time without the approval of the judge of compensation claims, except that the judge must approve any attorney fees paid pursuant to the settlement. Some or all of the settlement funds may be required to satisfy any child support arrearage in any case where the employee has been ordered to pay child support through a court or other state agency.

This summary of your worker's compensation benefits under the 2003 Worker's Compensation Act is intended only as a general guide and should not be relied upon to determine your entitlement to specific benefits. You should contact the Division of Worker's Compensation at its toll-free number (1-800-342-1741) or consult our office if you have specific question or problem concerning your case. Additional information may be found online at www.fldfs.com/wc/.