Florida work comp death benefits

Florida Work Comp Death Benefits

Under the Florida Workers’ Compensation Act, if a worker dies as the result of a compensable injury, the worker’s dependents are entitled to certain benefits. The benefits are compensation up to be $150, 000, funeral expenses, and, under certain circumstances, educational benefits for the spouse. In order to be a compensable, death must result from the accident within one year. If death does not occur after one year, benefits are awarded only if follows continuous disability and occurs five years after the accident. In occupational disease cases, the window is slightly greater (within 350 weeks; roughly six and three quarter years after the date of last exposure).

If the death does not occur within one year, it must occur within five years (excluding exposure cases) of “continuous disability”. There has been litigation over the meaning of this term, and the Florida Supreme County has held that there must be continuous suffering from the injury. However, the Court has held that a statement from a doctor that a claimant was “never the same since the accident” was a sufficient showing. In re Lupola, 293 So.2d 354 (Fla. 1974).

Of course, the legislature’s cap of five years is completely arbitrary, and has been attacked. However, the Supreme Court has held the cap is not unconstitutional. To illustrate the impact of the cap, consider the case of Leslie Newton.  Mr. Newton sustained a compensable work comp accident on April 30, 1973, while in the employment of McCotter Motors, Inc. As a result of this accident, he underwent multiple back surgeries which required bed rest. Because of the bed rest, he developed thrombophlebitis of his legs for which condition he was treated with anticoagulation therapy to thin his blood and to prevent clotting. Resulting from this therapy, he sustained several episodes of internal bleeding. His condition was further complicated by back pain, depression, and reactive hypertension. He was continuously disabled from the date of his accident until his death on May 5, 1982, which resulted from cerebral hemorrhage. His wife applied for dependency death benefits under the Workers’ Compensation Act as his widow. The employer/carrier contested the claim on the basis that the death occurred more than five years following the accident and that her claim was therefore barred by section 440.16(1).

Refusing to enforce section 440.16 because he determined that application of this statute to this case would produce an unconstitutional result, the deputy commissioner awarded benefits to Betty Newton. The First District reversed and upheld the constitutionality of section 440.16(1) against challenges that it denied due process of the law, to-wit: access to the courts, and denied equal protection of the law. The Supreme Court agreed with the First DCA in this regard. Newton v. McCotter Motors, Inc., 475 So.2d 230 (Fla. 1985).

If you have questions about Florida work comp death benefits or have questions for a workers comp attorney in Tampa, Fl, please do not hesitate to contact us to speak with an experienced Tampa work comp lawyer today. We offer free consultations, and there is never a fee if we don’t recover benefits on your behalf.

Reporting Workers Compensation Injuries in Florida

Reporting Workers Compensation Injuries in Florida

Reporting Workers Compensation Injuries in Florida

An injured worker has an obligation to report a work – related accident within 30 days after he or she knew, or should have known, an injury in the course and scope of employment was sustained. Obviously, the sooner after the accident the reporting occurs, the better. If the employer does not immediately complete a notice of injury form, it is important to immediately consult with a qualified workers’ compensation attorney in Florida. The attorney can provide assistance in making certain a notice of injury form is completed and a claim established. Alternatively, the claimant can immediately contact the insurance company who provides workers’ compensation coverage for the employer to advise that an injury has occurred. By contacting the insurance carrier, the carrier will complete the notice of injury form even if the employer failed to timely do so.

reporting your florida workers compensation injuryAccurately Reporting Information to the Employer or Carrier

It is important that the notice of injury form contain an accurate and complete summary of all injuries sustained, as well as an accurate description of how the accident occurred. If the notice of injury does not contain an accurate list of all injuries sustained, it may become difficult, months later, to get coverage for a particular body part if it was not reflected on the original notice of injury.

Once the claimant reports the workers compensation injury, the employer has a period of seven days in which to notify its workers’ compensation insurance carrier. If you suspect your employer has failed to establish your claim with the insurance company, failed to accurately list all of the injuries sustained, or if you have not heard from an insurance company within seven days after you report your injury, please be sure to contact a workers’ compensation attorney in your area immediately.

If You Require Assistance Reporting Your Injury in Florida

If you have questions regarding reporting a workplace injury, or any other question involving workers’ compensation benefits in Florida, contact our office at 813-931-1145. The workers’ compensation lawyers of Christopher J. Smith, P.A. are prepared to explain the nature of benefits available to injured workers after successfully establishing a claim. We offer free in-home consultations, and there is never a fee unless we secure benefits on your behalf. Our attorneys assist injured employees with workers’ compensation cases in Tampa and surrounding areas.

Importance of Accurately Calculating the AWW

All indemnity (money) benefits paid to an injured worker throughout the life of their workers’ compensation case are dependent upon the calculation of the average weekly wage (AWW). If it is under calculated from the beginning, it will result in months or potentially years of under paid benefits. For this reason, careful examination of how the carrier arrived at the Average Weekly Wage and whether that calculation is correct are very important questions in most Florida workers’ compensation claims.

Under most circumstances, if the individual works substantially the whole of the 13 weeks before the accident, (defined as at least 75% of those 13 weeks), then the average weekly wage is calculated by taking the total earnings total money earned by the claimant during the 13 week period. There is a form used by the insurance carriers to calculate the average weekly wage, which is referred to as a wage statement (DWC Form 1a-pictured at right). The form is supposed to be completed within 14 days after the employer’s knowledge of any accident has caused the employee to be disabled for more than 7 calendar days.

In order to make certain that the average weekly wage relied upon by the insurance carrier is correct, it is important to consider the following questions:

  • Does the carrier have my correct hourly rate of pay?
  • Did I work any overtime during the 13 weeks before the accident?
  • If I perform work involving sales, does the money reflected on the 13 week wage statement accurately reflect my earnings during the 13 weeks, or merely the money I was paid during the 13 weeks?
  • Was I paid (or entitled to) any bonuses during the 13 weeks before the accident?
  • Was I provided with health insurance by the employer during the 13 weeks before the accident? If so, what amount of money on a weekly basis did the employer pay toward the premiums associated with that health insurance? If the employer paid any portion of the health insurance premiums, is my health insurance coverage still in force? Does the insurance carrier can does the employer continue to pay their portion of the health insurance premium?

If you have questions about calculating your average weekly wage or your Tampa workers’ compensation claim, please do not hesitate to contact us to speak with an experienced Tampa workers’ compensation attorney today. We offer free consultations, and there is never a fee if we don’t recover benefits on your behalf.

cash advances in Florida Work Comp Cases

Cash Advances in Florida Workers’ Compensation Cases

A work injury can impact many facets of an employee’s life: ability to work, routine daily tasks, relationships with friends/family, and a reduction in income. Temporary total and temporary partial disability benefits are roughly two-thirds of the gross wages an employee was earning prior to the accident. This reduction in income, particularly for one income households, creates a financial hole which may be difficult to overcome. There are situations following a Florida workers’ compensation accident where a claimant may need additional financial assistance to fund various items: medical treatment (such as an independent medical exam), past-due bills, or other financial needs arising from workplace injuries. One option available to an injured worker is to seek a cash advance on future benefits from the insurance company. If the carrier will not voluntarily agree to issue a cash advance to the injured worker, a Judge of Compensation Claims has the authority to order a carrier to advance a payment to a claimant. While there are situations where a claimant can request an advance beyond $2,000, this article will address requests of $2,000 or less.

florida-workers-compensation-motion-hearingThe Judge of Compensation Claims may order the advanced payment upon showing the claimant has suffered either a substantial loss of earning capacity or a physical impairment. For consideration of requests for advances up to $2000, a JCC must perform a two-step inquiry:

First, the JCC must determine whether the claimant falls into one of the three specified statutory categories:

(1) claimants who have not “returned to the same or equivalent employment with no substantial reduction in wages”;

(2) claimants who have “suffered a substantial loss of earning capacity”; or

(3) claimants who have suffered a “physical impairment. § 440.20(12)(c)(2)[1]

Second, a JCC must determine that the claimant (a) is a proper claimant and (b) has provided adequate justification for his or her request.

A claimant requesting an advance of $2,000 or less does not have to demonstrate he or she will achieve a permanent disability status, or that there will be a source of future benefits to repay the advanced monies.[2] However, the claimant must show there is a nexus between the need for the advance and the workers’ compensation injury. The need must be tethered to a justifiable medical or other need arising from and related to the workers’ compensation claim.[3]

If you have questions regarding cash advances in Florida workers’ compensation claims, or any other Tampa workers comp matter, please contact our office for a free consultation. Our office has represented injured workers in Florida since 1989.

[1] Lopez v. Allied Aerofoam, 48 So. 3d 888 (Fla 1st DCA 2010).

[2] Florida v. Williams, 743 So. 2d 609 (Fla. 1st DCA 1999).

two dismissal rule in Florida Workers' Compensation

First DCA Clarifies the Two Dismissal Rule

The First DCA issued an opinion recently clarifying the elements necessary for a claim to be subject to the two-dismissal rule applicable to Florida workers’ compensation claims. The two dismissal rule states “a second notice of voluntary dismissal shall operate as an adjudication of denial of any claim or petition for benefits previously the subject of a voluntary dismissal”.[1] This means that upon the second dismissal of a claim, that claim shall be forever barred as a matter of law pursuant to the principles of res judicata.

In Moreno v. Palm Beach County School Board, the claimant filed the following petitions for benefits: 9/14/10 seeking permanent total disability (PTD) from 3/1/08 and continuing based on the claimant’s compensable back injury; 7/28/11 seeking PTD benefits from 6/29/11 and continuing based on the claimant’s compensable back injury, and on 11/12/13 seeking PTD benefits from  4/2/13 (date of psychiatric maximum medical improvement) and continuing based on the combination of the  claimant’s compensable back and psychiatric injuries.[2] The first two claims were voluntarily dismissed. Upon filing of the third petition for PTD, the carrier filed a Motion for Summary Final Order pursuant to 60Q-6.116 (2), seeking to dismiss the 11/12/13PFB based on the two-dismissal rule. In its MSFO, the carrier took the position the claimant was forever barred from filing for PTD benefits based on the two prior dismissals of claims for PTD benefits. The judge agreed with the carrier, and granted the carrier’s motion to dismiss based on principles of res judicata. The First DCA took up the case and ultimately reversed.

The court found the JCC erred by focusing on the specific benefit claimed, and not giving due consideration to the principles of res judicata. Res judicata applies only when all elements are present; whether the facts and evidence necessary to maintain the suit are the same in both actions.[3] The court held that even where the class of benefit is the same, the question remains whether the evidence upon which the petition for benefits is filed is the same. The court held that in the instant case, the claimant’s third petition for PTD was based on his back injury and a compensable psychiatric injury which did not exist at the time of the prior claims. The court held because the facts and evidence required to prove permanent total disability were different in the third claim, the judge erred in concluding the principles of res judicata applied and thereby granting a motion for summary final order. The case was remanded back to the JCC for consideration of the merits of the 11/12/13 PFB seeking PTD benefits.

If you have questions regarding the two-dismissal rule, or any other workers’ compensation matter, please contact our office to speak with a Tampa workers’ compensation attorney immediately. We offer free consultations. Our firm has been representing injured workers in Florida for over 25 years.

[1] F.A.C. 60Q-6.116(2).

[2] Moreno v. Palm Beach County School Board, Case 1D14-1142 (Fla 1st DCA 9/11/14).

[3] See Caron v. Systematic Air Services, 576 So.2d 373 (Fla.1st DCA 1991).