workers compensation

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: October 13, 2016

HEARING LOSS UNDER THE LONGSHORE AND DEFENSE BASE ACT

By Jo Ann Hoffman & Associates, P.A.

hearing-protection-1532036 Hearing loss under the Longshore and Harbor Workers’ Compensation Act, as extended by the Defense Base Act, is compensated under Section 8(c)(13) as a scheduled injury, resulting in a scheduled award. It is a traumatic injury in that the harm occurs immediately upon exposure.

Hearing loss is determined by the use of a professional audiologist who will perform an audiogram. The audiogram will show the percentage loss of hearing in each ear, and that can then be used to determine your overall hearing loss.

There are two types of hearing loss under Section 8(c)(13). The first is monaural hearing loss, which simply means a loss of hearing in one ear. A 100% loss of hearing in one ear results in 52 weeks of compensation at the appropriate compensation rate. For example, if you have a 30% loss of hearing in one ear only, you will be paid for 15.6 weeks of compensation at the appropriate compensation rate(30% of 52 weeks).

Continue reading →

Published on: March 14, 2014

Obtaining Permanent Total Disability (PTD) Benefits under Florida’s Workers’ Compensation System

By Jo Ann Hoffman & Associates, P.A.

Obtaining permanent total disability (PTD) benefits under Florida’s workers’ compensation system may not be as hard as previously thought. The First District Court of Appeals affirmed the Judge of Compensation Claims’ Final Compensation Order in the case of Hicks v. Redwine Properties, Inc., JCC Case No. 11-005849MRH. In that case, the claimant (injured worker) was a 58-year-old man with a high school education. He sustained a work-related injury to his right shoulder including a rotator cuff and bicep tear and impingement of the right shoulder. He underwent surgery and was placed on modified duty with permanent work restrictions of no repetitive reaching or lifting above the shoulder level and a 20 pound lifting limit below the shoulder level with the right arm. The claimant began his job search when he was released to return to work in January 2011. According to the Judge of Compensation Claims, the claimant performed an extensive job search and he applied for all the jobs referred to him by a vocational expert. Despite all this, the claimant was unable to find any sort of employment. Continue reading →

Published on: March 6, 2014

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

By Jo Ann Hoffman & Associates, P.A.

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 →