Category: Workers’ Compensation

Concurrent Employment: The Injured Worker With Two Jobs

Concurrent employment is something that comes up quite frequently in Florida workers’ compensation cases. As people have to work two jobs in order to make ends meet, this creates an unfortunate situation when an injury on one job prevents the injured worker from working at the second job.

Correctly calculating the average weekly wage in a Florida workers’ compensation case is extremely important, as it determines the injured worker’s lost wage benefit. When an injured worker has concurrent employment, i.e. two or more jobs in the thirteen weeks leading up to the accident, the wages earned at both jobs may be included in calculating the injured worker’s average weekly wage.

As we have discussed in prior blog posts covering average weekly wage: 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.

This post will focus on how concurrent employment impacts the calculation of an average weekly wage in a Florida workers’ compensation case.

The first issue is whether the second job is considered “covered employment”. Most concurrent employment will be considered covered employment if it is the type of job that subjects the employer to cover employees with workers’ compensation coverage. For example, if the second employer has four or more employees, it is likely covered employment. What is not “covered” concurrent employment are jobs such as hobby businesses, work for small employers (less than 3 employees), side businesses/sole proprietorship by the injured worker, or work as an independent contractor.

Whether the second job is “covered employment” is an extremely important question—if it’s covered employment, the concurrent employment wages go into calculating the average weekly wage. If it’s not covered employment, they do not serve to increase the average weekly wage.

This consequence-either including the concurrent employment wages or not-is extremely important. Most people who work two jobs are doing so because they absolutely have to in order to make ends meet. If that worker is now receiving lost wage benefits only based on the wages for the employer involved in the accident, it can be devastating. Given what’s at stake here, either making ends meet or not, the absolute only silver lining for an injured worker who engaged in non covered concurrent employment is that post injury wages from the non covered employment will not count against the injured worker when offsetting temporary partial disability benefits. The Florida Supreme Court held that where non covered, concurrent earnings are excluded from the determination of the average weekly wage, those same earnings must be excluded in the determination of post recovery earning capacity. (Christian v. Carolina Freigh, 571 So.2d 524 (Fla. 1st DCA 1991) citing Parrott v. City of Ft Lauderdale, 190 So.2d 326 (Fla. 1966). This is a complex idea to get across, so the following hypothetical will demonstrate how the scenario plays out in a situation:

Tampa Work Comp Attorney Concurrent EmploymentBob works for a large company as his first job and works for a screen repair company (with two employees) on nights and weekends. Bob has an injury at his first job. The money he earns repairing screens in the full thirteen weeks before the accident will not be counted towards calculating his average weekly wage.

Bob is given light duty restrictions by his workers’ compensation doctor, with no lifting over 20 pounds. Bob’s first job tells him they cannot accommodate his restrictions, so he is to receive Temporary Partial Disability benefits.

Repairing screens are within his weight lifting restriction, so Bob continues to do that at the same rate he did prior to the accident: on nights and weekends.

In this situation, Bob’s post injury wages will not be offset against his Temporary Partial Disability benefits. Therefore, he will receive the full Temporary Partial Disability benefit and receive his pay from repairing screens.

Now, if we change the hypothetical to reflect the second job was in fact covered employment, the scenario would play out differently. In that scenario, the wages from the second job would be included in calculating his average weekly wage. In this scenario, the average weekly wage would be higher, but Bob’s earnings from the second job would offset his Temporary Partial Disability benefits.

The questions of what is covered employment or whether concurrent employment earnings effect workers’ compensation benefits can be highly complex and are extremely fact-specific. Therefore, you should not rely on the hypothetical above in your case, but rather speak with a workers comp attorney in Tampa regarding your work injury case. If you have a question about concurrent employment or any other workers’ compensation question, contact our office to speak with one of our work injury attorneys for a free consultation.

Late Work Comp Checks and Penalties / Interest

This is a recurring issue in a large number of cases: late work comp checks. The first thing to understand is at what point is it “late”? Also, is it late because of delivery or mail issues? The general rule is the insurance company should have compensation checks postmarked by the last day of the pay period. This does not mean the employer’s pay period, but the pay period of disability benefits set by the insurance company. Once it leaves the hands of the insurance company, the insurance company has fulfilled its obligation. The pay period is generally every two weeks, and most carriers pay on that schedule. There are instances where weekly checks will be sent, or one check for three/four weeks of disability benefits, but that is the exception. Another issue we see with some regularity is when one check will be paid near the beginning of the pay period and the next towards the end, creating a period of about three weeks or so in between checks. In this situation, if it’s within the pay period, it may seem late, but it not legally late. This post will discuss when penalties and interest attach to late work comp checks.

Penalties

Penalties for Late Work Comp Checks

The second thing to understand is just because the work comp checks are late (postmarked after the close of the pay period), doesn’t mean that penalties attach. Penalties attach when a carrier fails to pay any installment of compensation seven days after it becomes due. Fla. Stat. 440.20(6)(a) states as follows:

late work comp checks - Florida workers compensation(6)(a) 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, as provided in subsection (2), subsection (3), or subsection (4), 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 for late payments resulting from conditions over which the employer or carrier had no control.

Interest

Interest for Late Work Comp Checks

Interest attaches whenever a payment is not paid when due (no seven day provision). Fla Stat. 440.20(8)(a) states as follows:

late work comp checks - Florida workers compensation(8)(a) In addition to any other penalties provided by this chapter 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, whether such installment is payable without an order or under the terms of an order. The interest payment shall be the greater of the amount of interest due or $5.

Mail or Delivery Issues

Mail Related Issues for Late Work Comp Checks

As noted in Fla. Stat 440.20(6)(a), penalties shall not apply for late payments resulting from conditions over which the employer or carrier had no control. This means if it gets “lost in the mail”, penalties are not due. Another situation which we have seen is when an injured worker moves and does not inform the insurance company. In situations like that, it’s clear the delay was beyond the control of the insurance company. Another issue that takes late payments outside the control of the insurance company is it does not have knowledge it owes benefits. For example, a doctor takes an injured worker completely out of work, but fails to notify the insurance company. Two months go by and benefits are not paid. If the employer or carrier did not have knowledge it owed benefits, the failure to make payment would result from conditions over which it had no control.

While the employer/carrier is excused from paying penalties on late payments resulting from conditions over which it had no control, there is no such excusal for interest on late payments. This is because the two statutes discussed above do not contain the same provisions.  The First DCA has held that because the Legislature has chosen not to provide a mechanism for excusing an employer or carrier from paying interest on late payments of compensation and because interest is not punitive, a JCC may not deny a claim for interest because late payment resulted from conditions over which the employer or carrier had no control. Jones v. City of Petersburg (1st DCA 2010); 1D10-1043.

If you have questions regarding late work comp checks, or any other related question, contact our office to speak with one of our Tampa workers comp attorneys regarding your case. Our firm has been protecting the rights of Florida’s injured workers since 1989. We offer free consultations.

 

 

 

The Claimant’s Burden of Proof; The Causal Connection

A case was decided by the First DCA yesterday that highlights a fundamental concept in Florida workers’ compensation claims: a claimant bears the burden of proof to establish entitlement to benefits and a claimant has the burden to present expert medical evidence establishing a causal connection between the requested benefits and the compensable accident.

florida-work-comp-lawyers-statuteFlorida Statute 440.09(1) sets forth the following: “The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and scope of employment. 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.”

The underlined portions of the statute above highlight a claimant’s burden of proof when seeking benefits—and the claimant will fail to carry his or her burden of proof if there is no expert testimony regarding the connection between the work injury and the requested benefit.

In MBM Corp/Sedgwick CMS v. Archer Wilson, the claimant sustained an accident in October of 2010. The claimant was injured when he fell backwards out of the truck he was unloading, landing on asphalt and striking his head and right shoulder. Only a right shoulder injury was diagnosed, and treatment was authorized by the insurance company for that injury.[1] Four years after the accident, the claimant filed a claim for evaluation of his head/neck. The insurance company denied the request, as it felt that only the shoulder was injured in the accident and it felt the accident was not the major contributing cause of the head or neck condition.

In response to the employer/carrier’s denial of the claim, the injured worker presented testimony from the authorized treating physician. The doctor testified it would be reasonable, assuming that Claimant’s neck had been symptomatic since the date of the accident, for Claimant to have an evaluation to obtain a diagnosis for his neck condition.[2] The doctor was not questioned as to whether there was any possible causal relationship between the compensable shoulder injury and the cervical spine complaints.[3] The judge accepted the doctor and claimant’s testimony regarding the neck, and ordered the evaluation. The insurance company appealed the decision and the 1st DCA reversed the judge’s decision yesterday. The First DCA held that the claimant failed to carry his burden of proof by not establishing the head or neck condition is causally related to the accident.

If you have questions regarding work injuries, or the rights of an injured worker in Florida, contact our office to speak with one of our Tampa work injury attorneys. We offer free consultations, and have been protecting the rights of Florida’s injured workers since 1989. 

[1] MBM Corp./Sedgwick CMS v. Archer Wilson (Fla. 1st DCA) 1D15-2398.

[2] Id.

[3] Id.

The full MBM Corp/Sedgwick CMS v. Archer Wilson decision can be found here.

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.

Florida Workers’ Compensation Mileage Reimbursement Rate

Florida Workers’ Compensation Mileage Reimbursement Rate

Injured workers in Florida who receive authorized medical services through their Workers Compensation carrier are entitled to be compensated for mileage incurred going to and from hospital, therapy center, authorized medical appointments and to pharmacies. A common question we receive is: what is the Florida Workers’ Compensation Mileage Reimbursement Rate ? The answer is there is no reimbursement amount set in stone, but the typical Florida Workers’ Compensation Mileage Reimbursement Rate utilized by most carriers is .445 cents per mile. Prior to 2006, the typical rate utilized was 29 cents per mile. Effective July 2006, the rate utilized by most workers’ compensation insurers changed to .445 cents per mile, which was driven by the amendment of Florida Statute 112.061(7)(d) and the informational bulletin below. The informational bulletin addressing this matter can be found here, but the relevant text is below:

“Pursuant to Bulletin #163A issued by the Florida Department of Labor and Employment Security, Division of Workers’ Compensation on September 1, 1994, medical mileage reimbursement for workers’ compensation claimants was tied to the state travel provisions of section 112.061(7)(d), Florida Statutes.

Florida Workers' Compensation Mileage ReimbursementIn 1964, the Florida Supreme Court held in Mobley v. Jack & Son Plumbing, 170 So.2d 41 (Fla. 1964) that section 440.13, Florida Statutes, which requires the employer to furnish the claimant with “remedial treatment, care, and attendance” for as long as the injury requires, included costs of transportation for medical treatment. In 1977, through Chapter 77-290, Laws of Florida, the legislature added a provision to section 440.13, Florida Statutes, expressly authorizing medical
mileage. In 1993 the legislature through Chapter 93-415, Laws of Florida, deleted that provision. In 1996, the Florida First District Court of Appeal in Sam’s Club v. Bair, 678 So.2d 902 (Fla. 1st DCA 1996) concluded that the omission did not abrogate the judicial construction in Mobley and its progeny that section 440.13(2)(a), Florida Statutes, implicitly authorizes such costs. Effective July 1, 2006, section 112.061(7)(d), Florida Statutes, was amended to increase the
reimbursement rate for state travel to forty-four and one-half cents per mile. For employer/carriers that utilize the statutory reimbursement provisions of section 112.061(7)(d), Florida Statutes, as a basis for the amount of medical mileage reimbursement, you are hereby notified of the amended statutory reimbursement amount of forty-four and one-half cents per mile.”

There have been cases where a claimant has alleged he/she is entitled to reimbursement at the prevailing IRS rate, and a Judge of Compensation Claims has accepted that claim and ordered a higher reimbursement rate. However, there has been no appellate direction from the District Court of Appeal in this regard.

Florida Workers' Compensation Lawyers

If you have questions regarding workers’ compensation, please do not hesitate to reach out to one our workers’ compensation attorneys in Tampa, Florida. Our firm represents injured workers in Hillsborough and surrounding counties in West Central Florida. The firm has been fighting for the rights of injured workers since 1989; put our experience to work for you by calling for a free consultation at 813-931-1145.

Florida Workers’ Compensation; State Mediation

After an injured worker has filed a Petition for Benefits (seeking some medical or indemnity benefit that is due not being provided by the insurance company), a state mediation is scheduled. The judge assigned to the case issues a Notice of Mediation order within 40 days of filing the Petition for Benefits. The mediation conference must take place within 130 days after the date of filing the Petition for Benefits. The judge may grant a continuance if the requesting party can demonstrate the continuance is required for reasons beyond the requesting party’s control. How quickly after a Petition the mediation is scheduled usually depends on the District. Most are set within 90 days and are held at the District office of the OJCC. For example, mediation for injuries sustained in Hillsborough, Hernando, Citrus and Sumter Counties are held at the Tampa office:

Office of the Judges of Compensations Claims – Tampa District
6302 E. Dr. Martin Luther King Jr. Blvd.
Suite 460
Tampa, FL  33619

The complete list of Florida districts can be found here.

State Mediation is a required step in the dispute resolution process. The topic of the mediation is the outstanding benefit(s) claimed in the Petition for Benefits. For example, if surgery was recommended by a treating physician and not authorized, an injured worker would file a Petition seeking authorization of the surgery. At the state mediation in this example, the issue discussed would be authorization for the surgery.

The state mediation is an opportunity for the claimant to fully inform the employer/carrier of his/her position. Similarly, the employer/carrier will have an opportunity to fully inform the claimant of why it will not pay or authorize the benefit.

Settlement Discussions at a State Mediation

No matter what the issue(s), settlement of the entire case typically comes up at mediation. In this situation, the employer/carrier would rather discuss a settlement of the case in its entirety versus just a discussion of the pending issue(s). In this situation, an injured worker and his/her attorney would consult regarding whether this option would be in the best interests of the claimant.

What Happens When Nothing is Resolved At Mediation?

When the parties are unable to resolve the pending issue(s), the mediation has reached an impasse. This means that there are still issues outstanding that will need to be addressed by a Judge of Compensation Claims at a Final Merits Hearing. Given the complex nature of disputes in Florida workers’ compensation cases, it is not uncommon to resolve some issues and not others at mediation. If some issues are resolved, those issues will not need to be addressed at a hearing.

Whether a workers’ compensation case has 15 state mediations or never goes to state mediation is entirely case specific.  An employer/carrier can deny medical and indemnity benefits continually in a case. Therefore, only if disputes need to be resolved does a case proceed to state mediation.

This post does not cover all the possible scenarios under which a state mediation can take place or what is discussed at mediation, but is simply meant to demonstrate that state mediation in Florida workers’ compensation cases is typically mandatory and is typically confined to discussing the pending issues and/or settlement. If you have question for a work comp attorney in Tampa, FL, contact our office for a free consultation. Our experienced Tampa injury attorneys are here to help.

Work Comp Made an Overpayment. Now What?

Circumstances sometimes present where a Florida workers’ compensation insurance company overpays an injured worker for one reason or another. Maybe they were unaware an injured worker began working and overpaid temporary partial disability benefits, or maybe they incorrectly over calculated the average weekly wage and paid benefits at a rate higher than obligated. In this situation, the injured worker will essentially owe the money back to the insurance company. The obvious question is: What happens if the injured worker doesn’t have the money to pay them back? Can the workers comp insurance company take the money they owe from future benefits?

Prior to 1993, overpayments made without a reasonable basis were considered gratuity. Essentially, if the error was on the part of the insurance company and there was no basis for it (just plain error), there was no right to recoup the overpayment.

Effective January 1, 1994, insurance companies can recover all overpayments, regardless as to why they were made. The law gives the carrier the right to recover overpaid amounts directly from the injured worker, or by deducting them from the injured worker’s compensation benefits. This applies only to indemnity benefits-not to medical benefits. Benefit deductions, however, are limited to 20 percent, The section provides [440.15(12), Fla. Stat. 2015]:

florida-work-comp-lawyers-statuteREPAYMENT.—If an employee has received a sum as an indemnity benefit under any classification or category of benefit under this chapter to which she or he is not entitled, the employee is liable to repay that sum to the employer or the carrier or to have that sum deducted from future benefits, regardless of the classification of benefits, payable to the employee under this chapter; however, a partial payment of the total repayment may not exceed 20 percent of the amount of the biweekly payment.

Christopher Smith, P.A. has represented injured workers throughout Florida since 1989.

The workers’ compensation laws have changed frequently over the last few decades, eroding the workers’ compensation benefits available to individuals hurt on-the-job. There is no obligation when you call us for a consultation, but it is important you discuss your workers’ compensation rights with a qualified lawyer immediately. Our attorneys have never represented any workers’ compensation insurance company. At our firm, an experienced Tampa workers’ compensation attorney will handle your case from start to finish.

Independent Contractors and Florida Workers’ Compensation

We start with the general proposition: most Florida employers are required to carry workers’ compensation insurance coverage for employees. Workers’ compensation benefits are designed to help cover the costs of lost wages and medical expenses for work-related injuries sustained by employees. The Florida Workers’ Compensation Act specifically excludes the obligation of an employer to provide coverage for independent contractors. Independent contractors, except those in the construction industry, are not employees. There are also several types of jobs which are (generally) independent contractors by statute: real estate agents, entertainers, truck owner-operators, horse exercise riders, and drivers for hire, among others. However, there are other positions where it may be a “close call”, and could mean the difference between having coverage and entitlement to benefits or not. Therefore, correctly determining whether an individual is truly an independent contractor not eligible for coverage or an employee eligible for coverage is a vitally important matter.

florida-work-comp-lawyers-statuteThe law provides that independent contractors are employees unless they meet the following conditions 440.02 (15)(d)(1), Fla. Stat (2015):

a. In order to meet the definition of independent contractor, at least four 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.

[alert type=”info” close=”true”]Even if four of the above are not met, 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:[/alert]

(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.

[hr style=”1″ margin=”40px 0px 40px 0px”]

Employment arrangements can be complex and varied. Therefore, whether or not a person is an independent contractor will be based on the specific facts and circumstances between the individual and the employer/business. Classification as an independent contractor may not always be a bad thing, if there was negligence on the part of the business that caused the injury. This is because an employer not covered by the act may not enjoy the benefit of workers’ compensation immunity. If you have questions regarding workers’ compensation, or about the topic of this blog post, Independent Contractors and Florida Workers’ Compensation, please do not hesitate to contact our office for a free consultation.

 

Florida Work Comp; Unmanned Surveillance

As part of every initial consultation with an injured worker, our workers’ compensation attorneys discuss the fact that many insurance carriers hire private investigators to perform surveillance on injured workers. While it would not be cost effective to perform surveillance on every person who has a Florida workers’ compensation claim, the insurers spend enormous amounts of money on surveillance. It is therefore imperative that every injured worker be entirely candid regarding the extent of their injury, medical history, and any income/earnings.

Why and How is Surveillance Used?

In a recent case, Leggett v. Barnett Marine, Inc., surveillance revealed that the claimant was capable of performing physical tasks consistent with his pre injury job. The physical exertion shown in the surveillance was not consistent with representations made by the claimant, which led to a finding of fraud. The JCC held the claimant had made misrepresentations, and thereby forfeited all benefits under the Workers’ Compensation Act pursuant to Section 440.09 and Section 440.105, Florida Statutes. In summary, when a person commits fraud under the Workers’ Compensation Act, he/she forfeits any and all benefits.

The basic Florida work comp fraud rule: to establish the “fraud” defense, the employer/carrier must prove by a preponderance of the evidence that the Claimant knowingly or intentionally engaged in one of the acts provided in section 440.105, Florida Statutes, for the purpose of securing workers’ compensation benefits.[1] This concept was discussed in greater detail in our prior blog post, which you can view here.

Surveillance is one tool insurance companies use to demonstrate a claimant has made misrepresentations. In our ever evolving technological world, an interesting form of surveillance came to our attention: unmanned surveillance.

Below is a video demonstrating unmanned surveillance. It is advertised as “fully automated” and “hidden in plain sight in objects seen every day by everyone”.

As always, we encourage every person to be candid with their work injuries. Often, the bad apples ruin it for those truly injured, but it’s important to be aware of the lengths insurers go to in attempt to combat fraud. Sustaining an injury at work in Florida opens a person up to all sorts of things, being surveilled is just one of them.

If you have questions regarding workers’ compensation, call our office to speak with one of our work comp attorneys in Tampa, FL for a free consultation.

[1] Smith v. Target; OJCC Case #: 13-029085MRH (Decision issued March 2, 2015)