workers compensation

Published on: March 6, 2014

UM Does Not Have to Pay a Work Comp Lien Per the Case of Volk v. Gallopo

This firm maintains that it is critical to know if you have to repay a worker’s compensation lien from uninsured or underinsured motorist proceeds. Per the case of Volk V. Gallopo, 585 So. 2d 1163.(Fla. 1st DCA 1991), a workers’ compensation lien is only payable from the liability proceeds, not the uninsured motorist proceeds. See also Florida Statutes, Sections 440.39 (3)(a) and 627.727(1). The only exception is where the UM paid its money to replace the liability proceeds so it can subrogate against the tortfeasor. See Metrix South v. Rose, 758 So. 2d 1259 (Fla. 1st DCA 2000). The applicable statutes presently in effect are included for ready reference. Continue reading →

Published on: February 11, 2014

Pain May Serve as the Basis of an Emergency Medical Condition and an Emergency Medical Doctor can Testify in Workers’ Compensation

By Jo Ann Hoffman & Associates, P.A.

In the case of Jose v. Goodwill Industries and Gallagher Bassett, decided January 23, 2014, the First District Court of Appeals in Florida held that a Goodwill worker who passed out and fell at work was not able to pursue a workers’ compensation case because the claimant failed to produce objective medical findings substantiating an injury resulting from his fall at work. However, the Appellate Court noted that none of the doctors had been asked about the hospital CT scan taken on the date of the claimant’s accident, which revealed a hematoma or some hemorrhage. Neither of the doctors had been asked whether that condition substantiated an objective medical finding substantiating an injury at work.

Pain may serve as the basis of an emergency medical condition if, in the absence of immediate medical attention, the claimant could reasonably be expected to suffer “serious dysfunction of any bodily organ or part.” In the case of Manuel Cespedes v. Yellow Transportation, the First District Court of Appeal decided on November 26, 2013, that in this case the claimant had a compensable injury on March 20, 2006 and was MMI’d by Dr. Chris Brown with a 6% impairment for an L5-S1 disk herniation. Thereafter, he treated intermittently with Dr. Brown. On March 19, 2011, he was admitted to Kendall Regional Medical Center under the care of Dr. Acebal, Claimant was found to have a massive herniated disk at L5-S1, severely compressing the nerve roots and Dr. Acebal did immediate surgery at L5-S1. Prior to surgery Dr. Acebal offered to transfer the Claimant’s surgery to Dr. Brown because he needed immediate surgery. Dr. Brown told Dr. Acebal to do the surgery. On March 22 Dr. Acebal performed surgery and the Employer/Carrier denied any further medical care. The Claimant tended to offer into evidence the opinion of Dr. Acebal, but the Employer/Carrier objected. The JCC erroneously sustained that objection. This case was eventually reversed with the Employer/Carrier being ordered to pay for the surgery. Continue reading →

Published on: January 23, 2014

Illegal Aliens Entitled to Workers’ Compensation Benefits

By Jo Ann Hoffman & Associates, P.A.

A Florida Court has held that an illegal alien who was injured on the job is entitled to workers’ compensation benefits. In the case of HDV Const. Systems, Inc. v. Aragon, 66 So. 3d 331 (Fla. 1st DCA 2011), the Claimant, Luis Aragon, was an illegal alien who was injured while working as a framer. As he was working, he fell from a height of 30 feet and sustained numerous fractures to his left foot and left forearm.

Mr. Aragon was severely injured and received extensive medical treatment, including the implantation of a spinal cord stimulator. The doctors determined that the fall left him with severe permanent injuries, which included complex regional pain syndrome in the left foot accompanied by constant pain, nerve injury, and discoloration. Because of his injuries, the doctors determined that Mr. Aragon had permanent restrictions which would limit him to sedentary work only, meaning that he would be unable to perform any of his pre-injury occupations, which included construction, farming, and manufacturing.

Luis Aragon did not have a valid Visa and was living in the United States illegally. In addition, he had no driver’s license, had a limited education, was unable to speak, read, or write in English, and had no transferrable skills which would assist him in obtaining the sedentary employment to which he had been restricted by his doctors. Continue reading →

Published on: November 27, 2013

Employer Arrested for Failure to Provide Workers’ Compensation Insurance after Death of Employee

By Jo Ann Hoffman & Associates, P.A.

On November 5th, 2013, Collier County Police arrested Joel Trujillo for not having workers’ compensation insurance available to the employees of his company, K.C. Tile and Marble. Failure to provide workers’ compensation insurance is a third degree felony under Chapter 440 of the Florida Statutes.

Back in June, two employees of K.C. Tile and Marble were working at a construction site when they were struck by lightning. One employee survived; the other did not.

Because of the employer’s failure to secure workers’ compensation coverage for its employees, the family of the worker who died was not able to collect death benefits which would have potentially been available to them under workers’ compensation. These benefits include funeral expenses up to $7,500.00, compensation to dependents, and benefits to the surviving spouse, up to a maximum of $150,000.00. The surviving employee would have been entitled to medical care and lost wage benefits. Although the details of the employee’s injury have not been released, lightning strikes have the potential to cause severe burns, cardiac arrest, and neurological impairment. Continue reading →

Published on: November 4, 2013

One-Time Change Required Within Five Days Under Florida’s Worker’s Compensation Law

By Jo Ann Hoffman & Associates, P.A.

In worker’s compensation cases, the Employer/ Carrier has the right to select the injured worker’s physician. Are there any circumstances in which an injured worker can pick his or her own physician? The answer to this question is “Yes.”

Under Section 440.13(2)(f), Florida Statutes (2011), the Claimant is allowed a one-time change of physician for the life of the case. The request for the one-time change made by an injured worker must be approved and the Claimant must be notified within five (5) days.

In the case of Bustamante v. Amber Construction Co. and American Interstate Ins. Co. (Fla. 1^st DCA 2013), the injured worker’s attorney emailed the request for a one-time change to the adjuster on September 25, 2012. The adjuster responded the following day, stating that he would contact another provider to see if one of their orthopedics would take over treatment. Thereafter, the adjuster faxed a letter to the new orthopedic advising them that they were authorized to “evaluate and treat claimant.”

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Published on: October 29, 2013

Formula for Payment of a Worker’s Compensation Lien Out of Third Party Settlement Funds

By Jo Ann Hoffman & Associates, P.A.

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Now that you have a third party settlement, how much do you pay the worker’s compensation carrier from your proceeds? Many times an injured person is entitled to both workers’ compensation benefits as well as a third party settlement. Since the workers’ compensation doctors are often conservative and will not recommend procedures, including surgery, those procedures and surgeries may be paid for under a letter of protection or out of the third party settlement.

Where the workers’ compensation carrier has provided benefits, they will have a lien for the amount they have paid. The amount the injured person has to pay back to the workers’ compensation carrier is determined by the formula set forth in the case of Manfredo v. Employer’s Casualty Ins. Co., 560 So.2d 1162 (Fla. 1990).

Following the Manfredo formula, the third party settlement is divided by the Claimant’s net tort recovery, which is arrived at by deducting attorney’s fees and costs and outstanding medical bills outside of workers’ compensation. In other words, the total amount the Claimant will receive (his net tort recovery) over the full value of the case equals a percentage payback to the workers’ compensation carrier. The example below illustrates this calculation.

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