workers compensation

Published on: May 29, 2024

Settling vs. taking a case to trial in florida’s worker’s compensation system

When injured on the job, navigating the Worker’s Compensation system in Florida can be quite a daunting task. One of the most crucial decisions is whether to settle or take the case to trial (commonly referred to as a Final Merits Hearing). Keep in mind, if the case proceeds to trial, a Judge cannot award a monetary settlement rather medical or indemnity benefits. Regardless, either path has its own advantages and disadvantages, and understanding these can help one make an educated decision.

Understanding Worker’s Compensation in Florida

Florida’s Worker’s Compensation system is designed to provide benefits to employees who suffer work-related injuries or illnesses. These benefits include medical treatment, indemnity benefits, and last but not least compensation for permanent impairments. However, obtaining the aforementioned can be complex and sometimes contentious, leading to disputes between injured workers and their employers/insurance companies.

What is a Settlement?

A settlement is an agreement between the injured worker and the employer’s insurance company. When a settlement is entered into, one is essentially receiving a lump sum dollar amount, in exchange for closing the case, and waiving any rights to future claims related to the injury. Continue reading →

Published on: March 6, 2023

JoAnn Hoffman receives the Lifetime Achievement Award in Broward County

By Jo Ann Hoffman & Associates, P.A.

On February 24, 2023, JoAnn Hoffman received the Lifetime Achievement Award from the Broward County, Workers Compensation Division of the Florida Bar for her decades long work helping the injured in Florida.

IMG_1063-225x300 How far have we come and how far can we go to be Fair to all people? That is the question that still exists today. So I have these personal comments that brought me to this post:

I saw racism when I was a child… and sexism,…and oppression of the poor. My family did not have much money but we worked hard and slowly earned our way out of poverty.

My recognizing injustice began as a young child when I saw my mother injured in an accident. She lay in bed for months missing work. Her attorney called her and told her he settled her case for $350. I found that offensive and made it my life’s mission not to let that happen to other people. There was no internet then, no one to reach out to. Her case was just finished.

I went to law school because my high school English teacher told me I was

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Published on: October 27, 2021

Are Earnings from Concurrent Employment Included When Calculating a Claimant’s Average Weekly Wage?

By Jo Ann Hoffman & Associates, P.A.

When computing the claimant’s Average Weekly Wage, “AWW” one must include “concurrent employment” if applicable. Fla. Stat. § 440.02(27). “Concurrent” is a term left undefined by Florida Workers’ Compensation Law, but case law suggests it means a “second job” or “moonlighting” that is expected to continue. Cato Corp. v. Stuart, 711 So. 2d 1375 (Fla. 1st DCA 1998). “Employment” is statutorily defined to mean “any service performed by an employee for the person employing him or her” but statutorily excludes work in four areas:

(1) domestic servants in private homes,

(2) most seasonal farming involving five or fewer regular employees,

(3) professional athletes, and

(4) community service imposed by a criminal sentence.

See Fla. Stat. § 440.02(16)(a)-(c) (2015).

For purposes of concurrent earnings, the phrase “any service performed” in the definition of “employment” in section 440.02(15)(a) “is extremely broad.” Reaves v. United Parcel Service, 792 So. 2d 688, 689–691 (Fla. 1st DCA 2001). In addition to the four exceptions, also excluded is any area of work for which coverage under the Florida Workers Compensation Law does not apply – such as an independent contractor. Anna Maria Fire Control Dist. v. Angell, 528 So. 2d 456 (Fla. 1st DCA 1988). As such, wages earned in such excluded areas of work cannot be included in the AWW as “concurrent employment.” See Jay Livestock Market v. Hill, 247 So. 2d 291 (Fla. 1971). Continue reading →

Published on: April 29, 2021

Is a Non-FDA drug or service authorized under FS 440 et seq

By Jo Ann Hoffman & Associates, P.A.

Is a Non-FDA drug or service authorized under FS 440 et seq

My workers compensation authorized treating doctor (ATP) has recommended a non-FDA approved experimental drug; however this has been denied by Worker’s Compensation — is this par for the course? The response to most legal questions is “it depends” and in this situation it truly does depend on several factors.

Pursuant to FS 440 et seq, compensable medical care does not include services or medication that are experimental, investigative in nature or part of a research project. However, an exception arises if the Department of Financial Services (DFS) gives prior approval. The Department must decide each situation on a case-by case basis as no two cases are alike. Keep in mind, prior to January 1994, this was the responsibility of the DFS however effective October 2003, the legislature repealed the exception noting that experimental or investigative services are not compensable.

jar-2338584_1920-1-300x200 Now the term “experimental” includes medical services, procedures, drugs, equipment, or supplies. These are considered experimental if their efficacy has not been proven for a particular diagnosis, or if their safety and validity is unclear or unknown. Likewise, the term investigative includes these same services and devices when they are known to be safe but their efficacy is still under investigation. Before denying a claim for medical treatment on the argument that the treatment is experimental or investigative the carrier must first refer the request for treatment to the Department of Financial Services.

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Published on: April 14, 2021

Florida Workers Compensation Lien

By Jo Ann Hoffman & Associates, P.A.

Florida Workers Compensation Lien

The workers’ compensation system is designed to provide injured employees with medical and wage loss benefits. Jones v. Martin Elecs., Inc., 932 So.2d, 1104 (Fla.2006).

If you are injured on the job or in the scope of your employment you may have a worker’s compensation claim against your employer/insurance company and you may also have a claim any negligent third-parties.

The injured employee has one year from the date of accident/injury to file a lawsuit against the negligent third-party. The employer, the party paying the worker’ compensation benefits has two years to bring suit. “At the end of the second year, the rights of action revert to the employee, but are (as before) subject to the employer or insurer’s subrogation and lien rights.” Luscomb v. Liberty Mut. Ins. Co., 967 So. 2d 379, 381 (Fla. Dist. Ct. App. 2007).

Although, you may have a workers’ compensation claim against your employer and a claim against any negligent third-party you will not be able to double dip. Florida Statute 440.39 (2020); Jones v. Martin Elecs., Inc., 932 So.2d 1100, 1108 (Fla.2006).

posterwithcaption-1-300x248 Florida Statute 440.39 (2020) mandates that an employer who has provided benefits to an injured employee is entitled to place a lien on a settlement from a third-party for the amount that the employer has paid in benefits. The employer can also elect to waive the lien. An employer providing workers’ compensation benefits to an injured employee can place a lien on any monies paid out for medical, wage loss benefits as well as future medical benefits that are part of an employee’s settlement with a negligent third-party. City of Lakeland v. Stapleton, 875 So. 2d 784 (Fla. Dist. Ct. App. 2004).

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Published on: September 29, 2020

FLORIDA FRONTLINE WORKERS ARE COVERED FOR COVID

By Jo Ann Hoffman & Associates, P.A.

As we attempt to navigate through unchartered waters, the concern for most workers who return to work – whether you are a frontline worker or in the private sector and have no alternative but to work – is whether or not you will be covered under Florida Workers’ Compensation Laws if you contract Coronavirus (COVID-19). The good news is you are covered if you are a Florida frontline employee.

Are private sector workers covered for covid? It is not easy as the private worker must prove that Covid or Coronavirus which is considered an occupational disease, was contracted due to a unique risk or exposure pic-200x300 hazard at work; was contracted during employment; and that the nature of employment was the major contributing cause of the disease. Florida law 440.151. This burden is not an easy burden to satisfy, especially for private sector worker which includes, but not limited to, grocery employees, office employees, laborers, support staff workers, restaurant employees, etc. However, as of late, the burden for state frontline workers is no longer as stringent.

In April 2020, Florida Chief Financial Officer (CFO) and State Fire Marshal Jimmy Patronis directed the Division of Risk Management to provide workers’ compensation coverage to state frontline employees. The directive/special rules, found in the Chief Financial Officer (CFO) Directive 2020-05, apply only to state frontline employees and not to the private sector workers. Directive 2020-05 states that Florida is going to honor workers’ compensation claims for state frontline employees. Covered employees include state employees who work directly with the public such as police officers, healthcare workers, family protective services investigators and emergency responders. The rules dictate that the burden is on the state to prove that the source of the Coronavirus is a source other than the employee’s work. In summation, it is more likely than not that state frontline employees who contract Covid- 19 a/k/a Coronavirus can expect to receive workers’ compensation benefits without much of a fight. Continue reading →

Published on: February 14, 2020

Injured on a Construction Site?

By Jo Ann Hoffman & Associates, P.A.

Can you sue a Third Party?

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Photo by Nicolas J Leclercq on Unsplash

If you were a construction worker who has been injured on the job, you can apply for and receive workers compensation benefits.

But can you make a claim against a third party other than your Employer?

The workers compensation law in Florida under FSA 440.11(e) grants immunity from civil claims by these words:

(e) A subcontractor providing services in conjunction with a contractor on the same project or contract work is not liable for the payment of compensation to the employees of another subcontractor or the contractor on such contract work and is protected by the exclusiveness-of-liability provisions of s. 440.11 from any action at law or in admiralty on account of injury to an employee of another subcontractor, or of the contractor, provided that:

1. The subcontractor has secured workers’ compensation insurance for its employees or the contractor has secured such insurance on behalf of the subcontractor and its employees in accordance with paragraph (b); and

2. The subcontractor’s own gross negligence was not the major contributing cause of the injury.

No contract = No immunity

If your employer and third party were NOT under contract with each other or under contract with the contractor, you can sue. As the court stated in Derogatis v.Fawcett Memorial Hospital: In order for the (third party) to be considered a contractor pursuant to an immunity defense under FSA 440.11, its “primary obligation in performing a job or providing a service must arise out of a contract.”

CAUTION: Be sure you don’t sign a release of “all parties” in your Workers’ Compensation case. The Florida Second DCA ruled in Leonirez Heredia v. John Beach Associates, Inc., et al.: Case Number 2D18-4127 (Fla. 2d DCA July 24, 2019) that if a contractor acted as both the property owner and as a general contractor at the same time and there was no contract with a third party, there was no immunity when a subcontractor’s employee was injured.

Since he was acting for his own benefit as a private homeowner, he was not considered a contractor under Florida law in this situation. Therefore, the contractor in Heredia could not enjoy immunity under workers compensation.

Thus, an injured worker could sue the contractor as the property owner in civil court.

If you file a lawsuit for injuries in civil court outside of workers compensation, you may be able to seek additional compensation for your pain and suffering as well as loss of earning capacity in the future. In workers compensation cases, you are limited to medical treatment with workers’ compensation doctors and lost wages at 2/3rd of your weekly pay until re-employed. Continue reading →

Published on: January 16, 2019

Home Modification Victory for Our DBA Client

By Jo Ann Hoffman & Associates, P.A.

This January, an Administrative Law Judge approved a settlement reached by Javier Ruiz, Esq. relating to home modifications needed by a client (pictured below with his consent) in a Defense Base Act (DBA) case. The case involved litigation of complex legal issues requiring expert testimony as to the modifications needed to the client’s home. For instance, a wheelchair bound injured worker will need lower light switches, doors widened, ramps created, and lower sinks.

To accomplish these necessary modifications, this firm took the depositions of engineers and accessibility experts who testified as to the necessity and cost of home modifications. Mr. Ruiz travels the country in his pursuit of justice and fairness for our clients. Attorneys Jo Ann Hoffman & Associates are proud to be able to help injured workers like this who are often ignored by insurance companies.

Multitude of Benefits Available Under the Defense Base Act/Longshore Act

Do you know the types of benefits available to you if you are injured in an accident covered by the Defense Base Act/Longshore Act? Broadly speaking, there are two types of benefits available under the DBA: 1) compensation benefits and 2) medical benefits. Home modification falls under medical benefits.

Many injured workers incorrectly assume that medical benefits simply means doctors visits, surgeries, medication, and physical therapy. Fortunately, the definition of medical benefits under Section 907 of the Act is very broad, so broad that it not only includes purely medical benefits like doctors visits, surgeries, medication, and physical therapy, but the definition also includes medically necessary and reasonable apparatus. Continue reading →

Published on: March 22, 2018

Winning a death case for children in Guatemala

By Jo Ann Hoffman & Associates, P.A.

When our firm received a call that a worker pulling up plywood on a new townhouse construction project had died, we went to the scene. In St. Petersburg, FL we were able to canvas the site and find the building permits to identify the company to pursue for death benefits. Learning from the employer that he did not care about the death and would not pay benefits, only increased our desire to obtain benefits for the children of the deceased. Every life has benefit and every life deserves respect. This firm spoke with the owner of the project who agreed to contact the employer about the accident.

IMG_4410-e1521756625851-1-225x300 Javier Ruiz from our firm filed a claim for benefits in the State of Florida Workers Compensation Courts and after one year of litigation a settlement was reached which had to be approved through the Guardianship Court as the deceased was survived by three minor children. In the State of Florida, $150,000.00 is the maximum payment for an on the job death. After obtaining Court approvals these proceeds can be disburse to help raise 3 minor children who are forever without the aid and support of their father.

It is our unwavering commitment to those who have no voice that drives our passion to help. We travel and fight for those who would be left without a voice, left without a remedy. We are a better society for helping those that come here to help us perform our construction. These are people who work to have money to send home for their children. We will not ignore indigent children because they have to eat, grow and learn all without a father who worked until his death to support them.

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Published on: July 25, 2017

DBA Claims with Third Party Liability

By Jo Ann Hoffman & Associates, P.A.

While rare, an attorney should always consider the viability of pursuing a third-party claim where a DBA injury is due to the negligence of a third-party other than your employer. This is allowed under 33 U.S.C. Section 933 (a) but has a strict requirement of notification under subsection (g)Compromise obtained by person entitled to compensation:

“1. If the person entitled to compensation (or the person’s representative) enters into a settlement with a third person referred to in subsection (a) for an amount less than the compensation to which the person (or the person’s representative) would be entitled under this chapter, the employer shall be liable for compensation as determined under subsection (f) only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed, and by the person entitled to compensation (or the person’s representative). The approval shall be made on a form provided by the Secretary and shall be filed in the office of the deputy commissioner within thirty days after the settlement is entered into.

2. If no written approval of the settlement is obtained and filed as required by paragraph (1), or if the employee fails to notify the employer of any settlement obtained from or judgment rendered against a third person, all rights to compensation and medical benefits under this chapter shall be terminated, regardless of whether the employer or the employer’s insurer has made payments or acknowledged entitlement to benefits under this chapter.”Do not settle your third-party case without first obtaining written permission from both the employer and the DBA insurance company to settle the third party claim. If you settle the third-party claim without getting written consent you will lose all future compensation and medical treatment payable by the DBA insurance company. If you are settling your third-party case for less than the compensation you are entitled to under the DBA case, you must obtain written approval on Longshore DBA Form LS-33 which must be filed within 30 days of the settlement with the District Director.

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