Florida Law
Florida Workers' Compensation Defense Law
Workers' Compensation Defense Law
Workers' Compensation: The Basics
The notion of the employer, and eventually the public, paying for employee work-related injuries originated in Germany during the latter half of the 19th century. Among the chief proponents of a German workers' compensation program was Bertha von Krupp of the famed German manufacturer Krupp Works. Krupp had long believed that taking care of workers was in the best interest of business and in 1884, successfully persuaded Chancellor Otto von Bismark to support workers' compensation for all of Germany.
Workers' compensation did not come to the United States until about 1910, when New York and Massachusetts adopted programs. Florida adopted its workers' compensation program in 1935. This program is administered by the Florida Department of Labor and Employment Security, Division of Workers' Compensation.
The advent of workers' compensation relieved injured employees from having to sue their employers to collect any sort of damages. Before workers' compensation, an employee had to prove that the employer had negligently failed to provide a safe work environment. Under workers' compensation, however, employees usually collect benefits regardless of fault. That is, even if an employee is responsible for his or her own injury, the employee is covered by workers' compensation under most circumstances, as long as the injury occurred on the job. The main restriction to the program is that in most cases, workers' compensation benefits are the only form of remedy for workplace injuries. After receiving benefits, an injured employee may not sue his or her employer for further compensation.
Who Is Covered
Only employees are eligible for workers' compensation benefits. Broadly defined, an employee is anyone under oral or written appointment or contract for hire, working on a full- or part-time basis. This definition encompasses even aliens who are unlawfully employed, minors, and prisoners on work-release programs. Not included in this definition, however, are domestic servants in private homes, volunteers in non-governmental entities, professional athletes, casual laborers, and independent contractors or anyone who is not subject to the control and direction of the employer.
An employee's injury must arise "out of and in the course of employment" to be covered by workers' compensation. Basically, this means that the injury has to occur while the employee is involved in some activity directly related to his or her job. For example, an employee injured at the job site performing tasks at the direction of the employer is covered, as is an employee who is injured on a business trip, as long as the employee is engaged in employment duties. An employee also is covered during most work-related recreational events. Workers' compensation coverage even extends to an emergency during which an employee leaves work intending to save life or property. An employee is not covered while traveling to or from the place of employment, unless the employer asks the employee to perform a special duty on the way. Employees injured during work breaks when no work is being performed also may not be covered, depending on the circumstances.
Available Benefits
Workers' compensation entitles an employee to all reasonable and necessary medical care related to the injury. The benefits available to workers include permanent or temporary total disability, permanent or temporary partial disability, and medical and related expenses. Benefits include visits to an approved health care provider, surgery, hospital care, dental or orthodontic treatment, prescription drugs, and medical supplies ordered by an approved physician. An employer cannot be made to pay for emotional distress, such as pain and suffering.
An injured employee also may be entitled to payment for lost wages. An employee also is entitled to lost wages benefits if he or she is able to work, but has suffered a permanent loss of a bodily function as a result of the injury. Benefit amounts are determined by set state guidelines and can be as high as two-thirds of a worker's salary at the time of the injury.
Injured employees unable to return to work may be entitled to rehabilitation and training provided by the Division of Workers' Compensation, Bureau of Rehabilitation and Medical Services. The employer or insurance carrier also may provide these services voluntarily. In addition, the Bureau of Rehabilitation and Medical Services offers reemployment services to injured workers, such as help in finding a job, writing resumes, vocational testing, and counseling. As an incentive for employers to hire workers unable to return to regular work, the state's Preferred Worker Program reimburses employers the cost of a disabled employee's workers' compensation insurance premium for up to three years.
If an employee dies as result of a work-related injury, the employee's dependents--spouse, children, or dependent parents--are entitled to death benefits of up to $100,000, with certain limitations.
The Employer's Responsibilities
The trade-off for an employee's relatively easy route to compensation is a limit to the amount of money that can be awarded for a work-related injury. Employers who maintain workers' compensation insurance programs to cover on-the-job injuries are immune from liability unless they act intentionally to cause injury.
Any insurance broker or attorney should be able to help a business obtain workers' compensation insurance. An employer also may seek help by contacting the Division of Workers' Compensation.
Notice
If an employee is injured on the job, he or she must notify the employer within 30 days of the date of the injury, the date when the effects of the injury first become apparent, or the date when a medical expert first discovers the injury. Failure to meet this deadline may threaten the employee's right to benefits. In a large company, an employee gives notice by informing his or her supervisor of the injury. In cases in which the employer reasonably should have known that the injury occurred, the employer is said to have "constructive notice."
After an employer has been notified of an injury, the employer must notify the insurance carrier within seven days by filing a Notice of Injury form. If a death has occurred, the employer only has 24 hours to notify the carrier. The employer must provide a copy of the Notice of Injury to the employee or the decedent's family. The Notice of Injury includes information about the employee's rights under the workers' compensation program. The Division of Workers' Compensation also provides employees with benefits information.
Payment of Benefits
The employer or insurance carrier is obligated to provide necessary medical treatment. Treatment that is "medically necessary" is any medical treatment that assists the employee in recovering or helps to improve the employee's condition. Usually, this treatment ranges from diagnostic procedures to physical therapy, and may include psychiatric counseling, chiropractic care, plastic surgery, medicine, prostheses and other medical supplies, travel expenses (for travel to obtain medical treatment), and attendant or custodial care.
The employer or carrier has the right to authorize the treating health care provider, but may not coerce or threaten the employee in the selection of a physician. Any employer or carrier violating this rule is guilty of a second degree misdemeanor. If the employee is unhappy with the physician, a different physician may be requested, and the employer must direct the employee to a new health care provider. The employer is not obligated to approve a request for a particular physician.
Refusing to Pay Benefits
Under some circumstances, employers may refuse to pay workers' compensation benefits. An employer may refuse to pay a workers' compensation claim because he or she believes the injury was not work-related or the benefits demanded exceed those justified for the injury. An injured employee may lose the right to receive benefits if the employer has implemented a drug-free workplace program and the employee tests positive for drugs. Benefits also may be jeopardized if an employee fails to follow safety rules and consequently suffers injury.
If the employer and the employee dispute the payment of medical care or lost wages, the Division of Workers' Compensation will attempt to remedy the problem through an informal resolution process. However, if that does not work, the employee will have to file a claim for benefits. If both parties refuse to settle the dispute, a hearing will be held before a judge of compensation claims. At the hearing, both sides present their cases and the judge has 30 days to render a decision. The judge has the authority to require the losing party to pay the winner's court costs, including attorneys' fees. Appeal of the compensation judge's decision must be directed to the First District Court of Appeal in Tallahassee.
Other Employer Responsibilities
Employers are prohibited from discharging or threatening any employee for asserting a valid claim for workers' compensation benefits. However, an employer is not required to hold an injured employee's position until the employee can return to work. It is illegal for an employer to refuse to hire an individual because he or she has a disabling condition from a prior injury. However, if an employee suffers an injury that is made greater because of a pre-existing condition at the time of hiring, the employer's liability is limited. The purpose of this law is to encourage employers to hire people who may have disabilities resulting from a previous injury.
Resources
Employee/Employer Rights in Florida, Jason Vail, Self-Counsel Press, Bellingham, WA, 1993.