workers compensation lien

Published on: October 27, 2021

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

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 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).

Continue reading →

Published on: January 14, 2021

Third party lien calculations differ in paying Federal vs State Workers’ Compensation Liens

By Jo Ann Hoffman & Associates, P.A.

The calculations for payment of the the workers compensation lien significantly differ if it is a State WC lien under FSA 440.39(3)(a) or under the Federal Employees’ Compensation Act (FECA). But what about when calculating Defense Base Act (DBA) liens – which is merely an extension of the Federal Worker’s Compensation program? Below is a precursory analysis of how liens are calculated and based on same, it’s clear Florida and DBA lien calculations are not nearly as complex as FECA calculations.

Florida Worker’s Compensation Lien Calculation:

Under Florida’s 3^rd party lien law, Worker’s Compensation (WC) carriers are entitled to recover 100% of past and future payments, but…. the same law reduces this recovery by the carrier’s proportionate share of the injured worker’s attorney fees/costs and any reductions considering the injured workers own negligence in the settlement. It is very important the injured person’s attorney argue the injured worker did not get the full value of the case because he was partly at fault.

When a WC carrier has provided benefits to the injured worker, the Carrier has a lien up to the full amount it has paid. The lien may be waived if the injured person gives up his right to future benefits. When it is not waived, the amount the injured worker must pay back is determined by the Manfredo Formula. See Manfredo v. Employer’s Casualty Insurance Company, 560 So.2d 1162 (Fla 1990). The formula, as set forth in the statute, can be difficult to understand. The formula has not changed since I posted on this in 2013. However, the easiest way to understand the “Manfredo Formula” is by example:

The case of Manfredo v. Employer’s Casualty Ins. Co., 560 So.2d 1162 (Fla. 1990) provides for the formula to use for the Florida state wc lien repayment. Assume the third party settlement of $275,000.00 is divided by our client’s net tort recovery, which is $127,124.80. This amount is arrived at by deducting our one-third for attorney’s fees and costs along with the outstanding medical bills as our client had surgeries outside of workers’ compensation. Divide $127,124.80. that he will receive over the full value of the case, $275,000.00, equals a 46% payback. That 46% payback times the wc lien of $20,359.38 calls for us to pay the lien holder $9,441.57.

Now is this formula used when calculating FECA liens or DBA liens? The short answer is NO

Continue reading →