Workers' Compensation

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Workers’ compensation refers to a system of laws outlining specific benefits to which injured employees are entitled, and the procedures for obtaining such benefits.

Every state has its own workers’ compensation laws, which are contained in statutes, and vary somewhat from state to state. In addition, there are special, federal workers’ compensation laws for employees of the federal government and other, specific types of industries.

Workers’ compensation is an important safety net for employees when they are injured on the job or as a result of their job.

Under the law in most states, every business must have some form of workers’ compensation insurance to cover injured employees. Filing a workers’ compensation claim is similar to filing an insurance claim; it isn’t a lawsuit against an employer, but rather a request for benefits.

Most workers’ compensation laws also provide employers and co-workers with a certain level of protection, by limiting the amount employees can recover from their employers, and prohibiting, in most cases, injured employees from suing their co-workers. In essence, workers’ compensation is a no-fault system, where an injured worker’s own negligence, or the negligence of his or her employer or co-workers, is not put at issue; rather, the injured employee is simply covered for his or her work-related injuries.

Thus, workers’ compensation is an injured worker’s “exclusive remedy” with respect to a work-related injury, unless he or she can point to a third party who contributed to his or her injuries. For example, because workers are often injured by products or machinery they use at work, they may, and often do, seek compensation from the manufacturers of such products. Employers are generally not directly involved in the third-party claims of their employees, and such claims take place in civil actions, rather than in the workers’ compensation system.

In most cases, however, an employer can recoup its workers’ compensation payments and obligations from the recovery an injured worker obtains from a lawsuit against a third-party. In some states, the workers’ compensation insurer and employer may enter into the lawsuit commenced by the employee and seek to protect their rights to recover the sums. In other states, the employer is given a lien against the employee’s recovery.

In those states, the employer and insurer must wait until the employee has made a recovery, at which point they assert the lien and the employee must then pay back monies which duplicate workers’ compensation benefits previously received or receivable.

Workers’ compensation is usually considered a substitute for a lawsuit against your employer. In exchange for not suing your employer in court, you are entitled to workers’ compensation benefits, regardless of who was at fault for your injuries. Prior to the creation of the workers’ compensation system, employees had no choice but to go to court to recover compensation for their work-related injuries. Now, most employees are automatically entitled to workers’ compensation, but at the same time, the employer is automatically protected from most employee lawsuits.

Keep in mind, however, that even if you file a workers’ compensation claim, you still may be able bring a lawsuit if your injury was caused by someone other than your employer, or by a defective product you used on the job, such as a piece of equipment that malfunctioned.

Workers’ Compensation FAQ’s

Report your injury immediately. By law, you have thirty (30) days to report your injury, or your claim may be denied for failure to notify your employer. However, there are exceptions to the notification requirement that can be found in §440.185. Fla. Stat.

Your employer should report your injury immediately, but no later than seven (7) days following the industrial accident. The insurance company must send you an informational brochure, explaining your rights and responsibilities, under workers’ compensation law, within three (3) days. If the insurance company fails to provide the brochure, it may be estopped from raising certain defenses in subsequent litigation.

You have the right to report the injury, and your employer is subject to a fine for failure to report the accident/injury. If you need assistance reporting your injury, contact a workers’ compensation attorney or the Employee Assistance Office of the State of Florida.

No, all authorized medical bills should be submitted to your employer, if self-insured, or your employer’s insurance company. If you are required to pay any medical bills out of pocket, you should submit your expenses to the above entities for reimbursement. If the employer or carrier has authorized medical treatment, do not submit to any unauthorized providers or treatment. Otherwise, you are not entitled to seek payment or reimbursement from the employer or carrier.

In most cases, you will receive 66 2/3 percent of your average weekly wage, which is calculated based upon your 13-week wage history immediately preceding your date of accident.

You should receive your first check within 8 to 21 days following your date of accident. You will not be paid for the first seven days following your date of accident unless your disability results in more than 21 days of lost time from work.

Currently, you can receive temporary total disability benefits, temporary partial disability benefits, or a combination of both for a maximum of 260 weeks. Thereafter, you may be entitled to permanent total disability benefits, which if eligible, you can receive until you are 75 years of age.

Your employer or its insurance carrier is responsible for arranging and paying for transportion for medical appointments.

While there is no black letter definition of “light duty” work, the term generally refers to work available with an employer that complies with physical restrictions placed on an injured worker by their authorized treating physicians, e.g., no lifting more than 15 pounds. “Modified duty” work refers to a position or job created by an employer to specifically comply with any physical limitations an authorized treating physician has placed on an injured worker.

You are entitled to temporary partial indemnity benefits until your employer can accommodate your work restrictions, or your doctor releases you to return to work, full duty.

No, your employer cannot fire you for filing a workers’ compensation claim. If it does, you may have a claim for coercion under §440.205 or a private cause of action for wrongful termination.

Unfortunately, there is no provision requiring your employer to hold your job until you return. Typically, employers have policies within your employment contract that state the amount of time you may miss prior to being properly terminated for an extended leave of absence.

The law provides reemployment services to help you return to gainful employment, for example, vocational counseling, transferable skills analysis, job-seeking skills, job placement, on-the-job training, and formal retraining.

Depending on the type of injury you have sustained, the statute of limitations for filing your claim is two years from the date of accident, or alternatively, two years from the date you knew or should have known that your injury or illness was related to your employment. Additionally, once a claim has been accepted and medical treatment has been authorized, you must treat once every 365 calendar days with an authorized treating physician. If a claim has previously been accepted and disability benefits were subsequently terminated, you must file a claim for reinstatement of the disability benefits within one year of the date of termination. Regardless, the statute of limitations, and its exceptions, is a very technical area of the law, and it his highly recommended that you seek the assistant of a workers’ compensation attorney.

Yes, there are two parts to every workers’ compensation claim: 1) the indemnity, or lost wages; and 2) future medical treatment. Each part can be settled separately, or you can globally settle both parts simultaneously. The latter is customary. However, settlement is completely voluntary for both parties.

Temporary partial disability benefits are available if you return to work making less than you were making prior to your injury.

You should seek the assistance of a workers’ compensation attorney, or you may explore the self-help options provided by the State of Florida.

You can, but neither you nor your personal doctor may seek payment or reimbursement for the treatment unless your claim has been controverted by the employer or carrier, and you later prevail in subsequent litigation.

No, you do not have to pay any co-payments, at least initially. Following the date your authorized treating physician places you at maximum medical improvement, you are required to pay a $10.00 co-pay per visit for additional medical treatment for your work-related injury.

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