Tag: Workers’ Compensation

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.

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 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.