Month: January 2016

Job Security and Being Out on Workers Comp

Job Security While Being Out on Workers CompThis is a question we get quite frequently: Can my employer terminate my position while I am out on workers comp? The scenario would be set up something like this: a roofer has an injury and is out for several months according to the opinion expressed by his or her authorized workers’ compensation physician. After two months, his employer informs him he is terminated for economic business reasons. He or she is upset and would like to seek recourse. Unfortunately, there is no provision in the Florida Workers’ Compensation Act that obligates an employer to hold a position open for an injured employee who is out on workers comp. However, the employer/carrier in most situations will have a continuing obligation to pay lost wage benefits while the injured worker is totally or temporarily disabled. Of course, if the employee is terminated FOR exercising his or her rights under the act, he or she may have a claim for coercion under §440.205 or a private cause of action for wrongful termination. However, that is outside the scope of this article. This question deals specifically with the employer’s obligation (or lack of obligation) to hold a job open for an injured worker while he or she is out on workers comp.

Specifically, being “out on workers comp” means being either in a temporary total disability capacity (completely off work) or in a temporary partial disability capacity (having physical restrictions or commonly referred to as “light duty”, and the employer’s inability to accommodate those restrictions).  An employer does not have to keep a job open for an injured worker simply because he or she is out on workers’ compensation. This question can get infinitely more complex when dealing with light duty, and whether the wage loss is attributable to the work injury.

The obvious question is: If I get terminated, will I still be entitled to wage loss benefits from the insurance company? In the vast majority of cases, the answer will be yes, the insurance company will continue to pay either temporary partial disability or temporary total disability benefits until the injured worker achieves a level of overall maximum medical improvement. However, these cases can be very fact specific and vary based on many factors. Therefore, if you have questions regarding entitlement to ongoing benefits while being out on workers comp, or have been terminated, feel free to contact our office to speak with one of our workers comp attorneys in Tampa regarding the facts and circumstances of your workers’ compensation case. We offer free consultations, and have been protecting the rights of Florida’s injured workers since 1989. 

Statute of Limitations in Florida Workers’ Comp Cases

The statute of limitations in Florida workers’ comp cases applies to all workers’ compensation claims involving injuries after 1/1/94.

Under the Florida Workers’ Compensation Act, there is an initial two-year statute of limitations, followed by a one year statute of limitations. The initial two-year statute of limitations requires the injured worker to either receive authorized medical or indemnity benefits, or file a Petition for Benefits seeking appropriate benefits, within two years of the date of their work comp accident. Thereafter, the statute of limitations in Florida workers’ comp cases is converted to a one-year statute of limitations. This means the individual must never allow a year or more to pass without receiving treatment from an authorized provider. A provider is only authorized if he or she has been specifically approved by the workers’ compensation insurance company to provide treatment for the injured worker in the context of a particular case. An individual is not permitted to receive treatment from a provider who is not authorized. If the individual allows a year or more to pass without receiving treatment from an authorized provider, the case will be closed through the Statute of Limitations. This means that any right to future money benefits or medical treatment would be extinguished, and the claimant would be left with no further workers’ compensation rights or benefits.

It is for this reason that it is best for an injured worker to make certain he/she does now allow even six months to pass without receiving treatment from an authorized provider. In that way, there would be no risk of having the Statute of Limitations run. Authorized medical treatment can mean authorized prescription medications. For a more thorough discussion of prescription medications and the statute of limitations, please see our prior blog post here.

If you are an injured worker, and have a question about the statute of limitations in Florida, contact us for a free consultation. While the information above lays out the general rule, there can be countless variations on facts that impact different situations. Therefore, it is advisable to seek an opinion from a work comp attorney in Tampa to discuss your particular case.

Statute of Limitations in Florida Workers’ Comp Cases

Statute of Limitations in Florida Workers' Comp CasesThe Florida Statute addressing the Statute of Limitations in Florida Workers’ Comp Cases is below:

440.19 Time bars to filing petitions for benefits.—
(1) Except to the extent provided elsewhere in this section, all employee petitions for benefits under this chapter shall be barred unless the employee, or the employee’s estate if the employee is deceased, has advised the employer of the injury or death pursuant to s. 440.185(1) and the petition is filed within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.
(2) Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment. This tolling period does not apply to the issues of compensability, date of maximum medical improvement, or permanent impairment.
(3) The filing of a petition for benefits does not toll the limitations period set forth in this section unless the petition meets the specificity requirements set forth in s. 440.192.
(4) Notwithstanding the provisions of this section, the failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits. If a claimant contends that an employer or its carrier is estopped from raising a statute of limitations defense and the carrier demonstrates that it has provided notice to the employee in accordance with s. 440.185 and that the employer has posted notice in accordance with s. 440.055, the employee must demonstrate estoppel by clear and convincing evidence.
(5) If a person who is entitled to compensation under this chapter is mentally incompetent or a minor, the limitations period is tolled while that person has no guardian or other authorized representative, but the period shall begin to run from the date of appointment of such guardian or other representative, or in the case of a minor, if no guardian is appointed before the minor becomes of age, from the date the minor becomes of age.
(6) When recovery is denied to any person in a suit brought at law or in admiralty to recover damages for injury or death on the ground that such person was an employee, that the defendant was an employer within the meaning of this chapter, and that such employer had secured compensation of such employee under this chapter, the limitations period set forth in this section shall begin to run from the date of termination of such suit; however, in such an event, the employer is allowed a credit of his or her actual cost of defending such suit in an amount not to exceed $250, which amount must be deducted from any compensation allowed or awarded to the employee under this chapter.

The above statute can be found here.