Group photo
A Personal Injury, Workers' Compensation and Defense Base Act Law Firm Fighting for the Injured.

Articles Posted in workers compensation

Published on:

Is a Non-FDA drug or service authorized under FS 440 et seq

My workers compensation authorized treating doctor (ATP) has recommended a non-FDA approved experimental drug; however this has been denied by Worker’s Compensation —  is this par for the course?  The response to most legal questions is “it depends” and in this situation it truly does depend on several factors.

Pursuant to FS 440 et seq, compensable medical care does not include services or medication that are experimental, investigative in nature or part of a research project.    However, an exception arises if the Department of Financial Services (DFS) gives prior approval.  The Department must decide each situation on a case-by case basis as no two cases are alike.  Keep in mind, prior to January 1994, this was the responsibility of the DFS however effective October 2003, the legislature repealed the exception noting that experimental or investigative services are not compensable.

jar-2338584_1920-1-300x200Now the term “experimental” includes medical services, procedures, drugs, equipment, or supplies. These are considered experimental if their efficacy has not been proven for a particular diagnosis, or if their safety and validity is unclear or unknown.  Likewise, the term investigative includes these same services and devices when they are known to be safe but their efficacy is still under investigation. Before denying a claim for medical treatment on the argument that the treatment is experimental or investigative the carrier must first refer the request for treatment to the Department of Financial Services.

Continue reading →

Published on:

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:

As we attempt to navigate through unchartered waters, the concern for most workers who return to work – whether you are a frontline worker or in the private sector and have no alternative but to work – is whether or not you will be covered under Florida Workers’ Compensation Laws if you contract Coronavirus (COVID-19).  The good news is you are covered if you are a Florida frontline employee.

Are private sector workers covered for covid? It is not easy as the private worker must prove that Covid or Coronavirus which is considered an occupational disease, was contracted due to a unique risk or exposure pic-200x300hazard at work; was contracted during employment; and that the nature of employment was the major contributing cause of the disease. Florida law 440.151.  This burden is not an easy burden to satisfy, especially for private sector worker which includes, but not limited to, grocery employees, office employees, laborers, support staff workers, restaurant employees, etc.  However, as of late, the burden for state frontline workers is no longer as stringent.

In April 2020, Florida Chief Financial Officer (CFO) and State Fire Marshal Jimmy Patronis directed the Division of Risk Management to provide workers’ compensation coverage to state frontline employees.  The directive/special rules, found in the Chief Financial Officer (CFO) Directive 2020-05,  apply only to state frontline employees and not to the private sector workers.  Directive 2020-05 states that Florida is going to honor workers’ compensation claims for state frontline employees.  Covered employees include state employees who work directly with the public such as police officers, healthcare workers, family protective services investigators and emergency responders.  The rules dictate that the burden is on the state to prove that the source of the Coronavirus is a source other than the employee’s work.  In summation, it is more likely than not that state frontline employees who contract Covid- 19 a/k/a Coronavirus can expect to receive workers’ compensation benefits without much of a fight. Continue reading →

Published on:

Can you sue a Third Party?

nicolas-j-leclercq-WJg2bynUWOk-unsplash-1024x683

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:

This January, an Administrative Law Judge approved a settlement reached by Javier Ruiz, Esq. relating to home modifications needed by a client (pictured below with his consent) in a Defense Base Act (DBA) case. The case involved litigation of complex legal issues requiring expert testimony as to the modifications needed to the client’s home. For instance, a wheelchair bound injured worker will need lower light switches, doors widened, ramps created, and lower sinks.

To accomplish these necessary modifications, this firm took the depositions of engineers and accessibility experts who testified as to the necessity and cost of home modifications.  Mr. Ruiz travels the country  in his pursuit of justice and fairness for our clients. Attorneys Jo Ann Hoffman & Associates are proud to be able to help injured workers like this who are often ignored by insurance companies.

IMG_4432-e1547587191152-225x300IMG_4434-e1547587408604-225x300

Multitude of Benefits Available Under the Defense Base Act/Longshore Act

Do you know the types of benefits available to you if you are injured in an accident covered by the Defense Base Act/Longshore Act? Broadly speaking, there are two types of benefits available under the DBA: 1) compensation benefits and 2) medical benefits. Home modification falls under medical benefits.

Many injured workers incorrectly assume that medical benefits simply means doctors visits, surgeries, medication, and physical therapy. Fortunately, the definition of medical benefits under Section 907 of the Act is very broad, so broad that it not only includes purely medical benefits like doctors visits, surgeries, medication, and physical therapy, but the definition also includes medically necessary and reasonable apparatus. Continue reading →

Published on:

We welcome our new clients in Puerto Rico as we are now open for business at 1519 Juan Ponce de Leon Ave. #510, San Juan PR 00909-1715 only 12 minutes from the Airport. I’ll explain why we opened to help those working there.

IMG_5406-e1526405710868-1-225x300In 2004, a very bad hurricane hit Florida. We had windows blown out of our office and we were without power for nine days at our house. An electrical pole had fallen across our street so no service vehicles could get to us. We would be nine days without power. During that time we got to know all the neighbors as we shared food and grilled outside. One neighbor siphoned gas from a boat to run the generators for homes on the street. It was a camping out experience where you learned to treasure a hot shower at a friend’s, were amazed by all the stars in the sky at night visible without electricity, and where you worked diligently to board up broken glass. You danced for joy at seeing a power truck on your street. We learned to share, be grateful, and have patience.
In 2017, my single largest donation was to the Red Cross after seeing the devastation caused by Hurricane Maria in Puerto Rico. I chose that charitable organization after my cousin Amy described her experience with the Red Cross. You see Cousin Amy was on the United Airlines crash in Sioux City where 1/3 of the people perished. The plane had broken into three parts. She ended up in a section that came to rest upside down in a corn field. “When we walked away from the crash with only the clothes on our back, having the Red Cross there with warm clothes, and blankets is something you’ll never forget.” Continue reading →

Published on:

When our firm received a call that a worker pulling up plywood on a new townhouse construction project had died, we went to the scene. In St. Petersburg, FL we were able to canvas the site and find the building permits to identify the company to pursue for death benefits.  Learning from the employer that he did not care about the death and would not pay benefits, only increased our desire to obtain benefits for the children of the deceased.  Every life has benefit and every life deserves respect.  This firm spoke with the owner of the project who agreed to contact the employer about the accident.

IMG_4410-e1521756625851-1-225x300Javier Ruiz from our firm filed a claim for benefits in the State of Florida Workers Compensation Courts and after one year of litigation a settlement was reached which had to be approved through the Guardianship Court as the deceased was survived by three minor children. In the State of Florida, $150,000.00 is the maximum payment for an on the job death. After obtaining Court approvals these proceeds can be disburse to help raise 3 minor children who are forever without the aid and support of their father.

It is our unwavering commitment to those who have no voice that drives our passion to help.  We travel and fight for those who would be left without a voice, left without a remedy.  We are a better society for helping those that come here to help us perform our construction.  These are people who work to have money to send home for their children. We will not ignore indigent children because they have to eat, grow and learn all without a father who worked until his death to support them.

Published on:

While rare, an attorney should always consider the viability of pursuing a third-party claim where a DBA injury is due to the negligence of a third-party other than your employer. This is allowed under 33 U.S.C. Section 933 (a) but has a strict requirement of notification under subsection (g)Compromise obtained by person entitled to compensation:

IMG_9967-e1496774041913-1-225x300“1.  If the person entitled to compensation (or the person’s representative) enters into a settlement with a third person referred to in subsection (a) for an amount less than the compensation to which the person (or the person’s representative) would be entitled under this chapter, the employer shall be liable for compensation as determined under subsection (f) only if written approval of the settlement is obtained from the employer and the employer’s carrier, before the settlement is executed, and by the person entitled to compensation (or the person’s representative). The approval shall be made on a form provided by the Secretary and shall be filed in the office of the deputy commissioner within thirty days after the settlement is entered into.

2.  If no written approval of the settlement is obtained and filed as required by paragraph (1), or if the employee fails to notify the employer of any settlement obtained from or judgment rendered against a third person, all rights to compensation and medical benefits under this chapter shall be terminated, regardless of whether the employer or the employer’s insurer has made payments or acknowledged entitlement to benefits under this chapter.”Do not settle your third-party case without first obtaining written permission from both the employer and the DBA insurance company to settle the third party claim.  If you settle the third-party claim without getting written consent you will lose all future compensation and medical treatment payable by the DBA insurance company. If you are settling your third-party case for less than the compensation you are entitled to under the DBA case, you must obtain written approval on Longshore DBA Form LS-33 which must be filed within 30 days of the settlement with the District Director.
Published on:

hearing-protection-1532036Hearing 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).

Published on:

Far too many times I hear, “it hurts and I need to stop”.  DO NOT … I REPEAT … DO NOT STOP.  Physical therapy is a necessary evil and YES it hurts but as they say, NO PAIN NO GAIN.

Physical therapy, also known as physical rehabilitation, requires a lot of time, a lot of hard work, and of course a knowledgeable physical therapist. Physical therapists are highly educated and are licensed health care professionals, licensed under Florida Statutes, Ch. 486.  Their job is to examine, evaluate, and treat patients whose conditions limit their ability to move and function in daily life.  A therapist’s overall goal is to maintain, restore, and/or improve mobility and help reduce pain.  In some cases, physical therapists are instrumental in helping a patient avoid surgery or the long-term use of prescription medications and associated side effects. IMG_0284 Continue reading →

Contact Information