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

Articles Posted in workers compensation

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What happens in your Longshore or Defense Base Act (DBA) claim if you re-injure yourself working for a different employer after your initial accident?

The answer, like many legal questions, is “it depends.” If a Claimant’s disability results from the natural progression of a prior injury and would have occurred notwithstanding a subsequent injury, the prior injury is a compensable injury and the Claimant’s employer at the time of the prior injury is responsible. This was the holding in Wallace v. Cerris Marine Terminals. Consequently, if the subsequent injury is one that was natural and unavoidable as a result of your initial injury, the initial employer will be paying your benefits under the Longshore Harbor Workers’ Compensation Act and/or the Defense Base Act. If, however, the subsequent injury aggravates, accelerates or combines with the earlier injury to result in the Claimant’s disability, the subsequent injury is a compensable injury and the subsequent employer is responsible. This is what is commonly referred to as the “Aggravation Rule”, and it can cause numerous problems in obtaining benefits under the Longshore Act.

If you suffer an injury with one employer and begin working with another covered employer, the insurance carrier for the initial employer may thereafter stop benefits if they have reason to believe that you have aggravated your injury with the new employer. If the insurance ceases paying benefits based on this Aggravation Rule, the insurance carrier for your new employer will have to be notified of this claim, and a determination of which carrier is responsible will ultimately be made by an Administrative Law Judge. Continue reading →

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gavelsmallerThe answer to this question is – NO.  The 1st District Court of Appeals recently addressed this question and issued an opinion which can be found in Boley Centers, Inc./Comp Options v. William Vines, Case No. 1D14-5869 (November 16, 2015). Continue reading →

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According to Fla. Stat. 440.13(2)(f), “Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during his course of treatment for any one accident. Upon granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become de‑authorized upon written notification by the employer or carrier.  The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within five (5) days after receipt of the request.  If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.

As of late, there has been some controversy as to whether the physician must be in the same specialty as that of the treating physician. As you will note from the Statute, same does not contain any requirement whatsoever that the one-time change must be in the same specialty.  In fact, said issue was recently addressed in Edwards v. Miami-Dade County Public Schools, OJCC #15‑009693CMH.  In Edwards, Judge Hill ruled that Fla. Stat. 440.13(2)(f), does not require the Claimant to first prove as a condition precedent to the operation of this subsection, that all the proposed treatment be within the same medical specialty.

As you will note, in the most recent case, it is evident that the Statute is devoid with regard to specific language pertaining to whether the one-time change must be within the same specialty. As such, it is our position that once a one-time change has been made, the Claimant may be free to choose any specialty and may not compelled to change to the same specialty.

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Under  the Florida workers’ compensation statute, F.S.A. 440.205, a terminated employee can sue where an employer has fired the employee for exercising his valid claim for workers’ compensation benefits.  Fla. Stat. 440.205 states:

440.205 Coercion of Employees.  No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Worker’s Compensation Law.

IMG_1772A cause of action can be filed in the Florida Circuit Court based on the case of Smith v. Piezo Technology, 427 So.2d 182 (Fla. 1983).  The terminated employee must show that he made a workers’ compensation claim that was valid and that he was terminated due to making that claim.  This can generally be found by a termination  shortly after filing the claim. Continue reading →

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While there are no statutory or regulatory provisions requiring a Worker’s Compensation Medicare Set-Aside (WCMSA) proposal be submitted to CMS for review, in all cases, submission of a WCMSA proposal is a recommended process and in some cases a required process.

If you choose to submit a WCMSA for review, CMS requests that you comply with its established policies and procedures.  CMS will only review new WCMSA proposals that meet the following criteria: Continue reading →

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As a general rule, the Judge of Compensation Claims can only consider the testimony of authorized doctors. Likewise, the Judge is limited to determining if the injured worker is owed any benefits in the past for medical care and/or lost wages. Also if a claim was filed for medical treatment to be approved the Judge can decide if the insurance company should provide that requested treatment.

The Judge of Compensation Claims has no jurisdiction over fees charged by an authorized medical provider. Judge Almeyda noted in the case of Maqueira v. FrankCrum, OJCC 07‑009035ERA that AHCA has exclusive jurisdiction over that issue. Continue reading →

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back-injuryA represented employee can settle his workers’ compensation case by signing a release of his workers’ compensation claim in ANY third party litigation cases including:

  • An EEOC claim decided March 6, 2015 by Judge Sojourner: Bond v. Hilton Garden Inn/Travelers, OJCC 15-002240MES.
  • A general release in a separation agreement RELATED to the employment relationship with the employer. Risco USA Corp. v. Alexander, 91 So.3d 870, 872 (Fla. 1st DCA 2012).
  • A general release of the employer in a negligence action against a coworker who rearended him. Patco Transport, Inc. v. Estupian, 917 So.2d 922 (Fla. 1st DCA 2005). Continue reading →
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gavel-3-1236445Issues that are outside of FSA 440 and issues over which the JCC has no jurisdiction per case law and recent JCC decisions:

  1. The JCC lacks jurisdiction over all employment benefits between the employee and the employer including reinstatement of medical leave benefits, vacation, or sick leave as those issues are between the employee and the employer. Spinelli v Fla. Dept of Commerce, 490 So.2d 1294,1296 (Fla 1st DCA 1986)
  2. As 440.39 (3) (b) states the JCC has no jurisdiction to resolve a dispute over the worker’s compensation carrier’s lien and payback from the claimant’s settlement against the at fault party. Such jurisdiction rests with the Circuit Court per University of Central Florida v Gleaves, 586 So.2d 458, 459 (Fla 1st DCA 1991)
  3. Even if the employee agrees to execute a resignation or a general release of the Employer the JCC have ruled that they do not have jurisdiction over the same or the ability to enforce an Order compelling the claimant to execute a release or resignation. McIntrye v Silver Airways OJCC 12-024199DAL. “Moreover, General Releases and Resignations are outside the bounds of Chapter 440 subject matter jurisdiction. Therefore the Court finds and concludes that it does not have the power or jurisdiction to enforce any settlement provisions regarding execution of a general release or voluntary resignation agreement.” Galloway v Douglas Equipment, OJCC 05-009993WHR. Continue reading →
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back-injuryObtaining 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 →

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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 →

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