Florida Injury Attorneys Blog

Published on: January 14, 2021

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

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 →

Published on: December 16, 2020

Sue the Last Responsible Employer

By Jo Ann Hoffman & Associates, P.A.

In many instances, a psychological injury will occur over time as a result of working with multiple employers in a war zone. Which employer ends up liable will usually be the Last Employer even though there was minimal psychological trauma during that employment. Let’s look at how the courts have typically analyzed this issue.

Psychological claims that occur as a result of cumulative exposure to harsh and dangerous working conditions such as the hazards of working in a war zone are designated as an occupational disease. Specifically, courts have defined an “occupational disease” as a disease caused by hazardous conditions of employment, which are peculiar to the employee’s employment as opposed to other employment generally. Hazardous activity need not be exclusive to the particular employment, but it must be sufficiently distinct from hazardous conditions associated with other types of employment. Gencarelle v. Gen. Dynamics Corp., 892 F.2d 173, 23 BRBS 1 (CRT) (2d Cir. 1989), aff’d 22 BRBS 170 (1989).

employers-300x225 The last employer rule specifically applies in occupational disease cases. Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir. 1955), cert. denied, 350 U.S. 913 (1955). The title “last employer rule” is sometimes given to each of the different tests for determining liability among several employers in a LHWCA matter. See Foundation Constructors, Inc., 950 F.2d 621, 624 (9th Cir. 1991). “Whether it is characterized as two different rules, or different applications of the same rule,” courts use two tests, one for traumatic injury and one for occupational disease, when evaluating employer liability under the Act. Id. The Rule limits liability to “the employer during the last employment in which the claimant was exposed to injurious stimuli, prior to the date upon which the Claimant became aware of the fact he was suffering from an occupational disease arising out of his employment.” Travelers Ins. Co. v. Cardillo, 225 F.2d 137, 145 (2d Cir. 1955), cert. denied, 350 U.S. 913 (1955); see also Fulks v. Avondale Shipyards, Inc., 637 F.2d 1008, 1012 (5th Cir 1981); Newport News Shipbuilding & Dry Dock Co. v. Stilley, 243 F.3d 179, 181-82 (4th Cir. 2001). Put another way, the last employer to employ a claimant while she is exposed to the injurious stimuli prior to the claimant’s discovery of her disease is liable.

Continue reading →

Published on: December 8, 2020

Statute of Limitations Under the Defense Base Act

By Jo Ann Hoffman & Associates, P.A.

hourglass-2910948_1920-300x200 Did you know that there exists time period in which you must file your Defense Base Act claim in order to be eligible for compensation checks? Have you been told by an adjuster from one of the infamous insurance companies like Gallagher Bassett or AIG that your “statute has run”? In reality, your statute may not have expired at all! As an initial matter, there exists no time limit for medical treatment. This means that even if you had your injury 20 years ago, you are still eligible to file a claim for medical treatment! Medical treatment is never time barred (unless you settle your claim for a lump sum of money, then your medical claim usually closes forever).

There exists TWO statutes of limitations in the Defense Base Act: Sections 912 and 913.

Section 912 of the LHWCA/DBA provides that notice of an injury or death must be given within 30 days after injury or death, or within 30 days after the employee or beneficiary is aware of, or in the exercise of reasonable diligence or by reason of medical advice should have been aware of, a relationship between the injury or death and the employment. With respect to occupational diseases, such as mental injuries and PTSD, the statute provides for notice within one (1) year. PTSD is often classified as an occupational disease. Section 912 is the “nicer” statute, as there are several ways to get around it, including showing that the insurance company was not “prejudiced” (hurt) by the failure to timely file. We have won several cases by arguing that there was no harm! No harm, no foul as the saying goes.

Continue reading →

Published on: November 29, 2020

Covid During An Injury Claim? Get Help Now

By Jo Ann Hoffman & Associates, P.A.

It is not unusual for an auto accident or work injury to overlap with Covid. What I mean by this is we have had clients who have had Covid and were in an auto accident or recovering from an injury at work. We have had clients who are undergoing treatment following injuries in an auto accident and they developed Covid. We have also been contacted by employees of contractors working in Warzones who have come down with Covid. Because they are in very tight working and sleeping zones, it is especially important that they read this article. Thanks to all who have given me their feedback so I can accurately describe their symptoms and findings as to what helped them.

Covid can be a debilitating illness and most people experience fatigue, mental confusion, and some sort of flu or cold symptoms initially. They may test negative for Covid after 10 days but they still have a hard time getting treatment for their injury and getting proper information on how to recover from Covid-19 a/k/a Coronavirus. Your body having to recover from injuries and covid is no small feat. The body will kick in its immune system to fight off the covid and once that settles down, the pain from the injuries will return.

I’ve been blessed to be given insight into this terrible disease by my dear friends in London who had this disease and dealt with it long before it came to the United States where it is seeing a terrible surge in transmission. People in the UK have had an opportunity to read up on it and study it. In speaking with them I learned that there are important things we need to know.

First and foremost, your local PCP or internist may have no idea about this disease. They are seeing it for the first time. Do not despair. We have you covered.

Unknown-1-rotated-e1606636884336-300x225 Because London was hit early and hard with this disease, I am directing you to these youtube videos for people who have symptoms lingering after two weeks. The Medcram video can help you to understand how it can takes weeks to get over and suggest treatment. It states people have found the NAC vitamin supplement helped them feel better. Even after you test negative you can have residual symptoms. BMJ has a video on this so know you aren’t alone. Facebook has a group posting on their experience with Covid and what worked for their recovery. It’s called Survivor Corps.

Continue reading →

Published on: November 19, 2020

How to File a DBA Claim

By Jo Ann Hoffman & Associates, P.A.

Can you file a Defense Base Act Claim? How to do you file a DBA Claim in order to receive compensation?

We will give you a general explanation on how you can file a Defense Base Act (DBA) claim for Post-Traumatic Stress Disorder (PTSD) and how to receive compensation for the injuries you have suffered. Filing a DBA claim can be a long strenuous process that if not done correctly can have a significant impact on your ability to receive the proper care you deserve as well as compensation you are owed. The Federal law requires all U.S. Government contractors and subcontractors to have insurance for their employees working overseas which is designed to protect you and your ability to earn an IMG_9968-e1496774833618-1-225x300 while working overseas for a U.S. contractor/company and which can also provide you with compensation for medical treatment. The first step in filing a Defense Base Act claim is to seek and have proof of medical treatment for any work-related injuries you may have suffered on the job. The injuries you suffered can be physical or mental health injuries or both. Generally, there is a one-year filing deadline to make a claim for benefits after the work-related injury occurred. Filing a DBA claim for PTSD can be more complicated because the symptoms may not arise until after the 1-year deadline has passed. However, PTSD is generally considered an occupational disease which can extend the filing deadline to two-years after knowing of the injury. Here is the form you can use to file your DBA claim. It is called an LS-203.

The importance of seeking medical treatment is both to receive proper treatment for your injury and to validate your claim and injuries with documentation. After receiving treatment, the law requires you to report your injury or injuries to your employer to put them on notice. The form required to file a claim is LS-203 which can be faxed to the Division of Longshore and Harbor Workers’ Compensation (DLHWC). When your employer receives notice of your injury, they will notify the Department of Labor which will begin the timeline of events that if not adhered to can bar your right to receive compensation for your injury. Once your claim has been assigned to the Officer of Workers’ Compensation Programs (OWCP) you will provide the required documentation, details of your injury and medical diagnosis for your right to receive compensation. The amount of compensation varies from each case’s specific facts and the Claimant’s average weekly wage which we will help you calculate. Your DBA insurance will also compensate you with weekly compensation benefits in the event you’re unable to work. We understand that PTSD is a real mental health problem that will affect your daily life, family, relationships and even your ability to earn an income. Most likely, the insurance company will outright deny your right to receive any medical care which is why it is crucial you seek proper representation. If you were in a war zone and believe you may be suffering from PTSD we urge you seek treatment immediately and to contact us so that we may preserve your rights to file a claim.

Continue reading →

Published on: September 30, 2020

HEART ATTACKS AND CARDIOVASCULAR CLAIMS UNDER THE DEFENSE BASE ACT

By Jo Ann Hoffman & Associates, P.A.

heartache-1846050_1920-300x200
Our firm has seen a recent rise in the number of heart attack and other cardiovascular claims in the Defense Base Act whether it be a stroke, an aortic dissection (which is deadly), and heart attacks. These claims are very often denied by the insurance company, whether it be Starr or Gallagher Bassett, which seem to be handling many of the Defense Base Act claims in 2020. Our firm has handled numerous heart attack, stroke and aortic dissection claims from all over the world including South Korea, Iraq and Afghanistan. With respect to heart attack and cardiovascular injuries, these claims largely depend on good medical documentation from your doctors, so it is important to make sure you select a good doctor who will fight for you ( do not ever let the insurance company pick a doctor for you or even recommend a doctor to you).

Fortunately for the injured civilian contractor, the Defense Base Act provides numerous benefits and presumptions to help beat the insurance companies’ wrongful denial of benefits. All that we must show at the start of a claim is that the injured worker (1) sustained a harm and (2) that conditions existed or an incident occurred at work that could have caused the harm. Bath Iron Works Corp. v. Preston, 380 F.3d 597 (1st Cir. 2004). This is known as the section 20(a) presumption. Once an injured worker successfully raises the section 20(a) presumption, the burden shifts to the employer, who may rebut the presumption by producing substantial evidence that the injured workers condition was neither caused nor aggravated by his employment. It is at this point that the insurance company will send you to their doctor (who is usually “in their pocket”) to try and derail your claim.

For purposes of heart attack claims under the Defense Base Act, it does not matter that you had pre-existing conditions, such as high blood pressure or high cholesterol. “An employer is liable for employment conditions that cause an injury or aggravate or accelerate a pre-existing condition under the aggravation rule, which dictates that “the employer takes the employee as he finds him.” Hawaii Stevedores, Inc., 608 F.3d at 650.

Continue reading →

Published on: September 29, 2020

FLORIDA FRONTLINE WORKERS ARE COVERED FOR COVID

By Jo Ann Hoffman & Associates, P.A.

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-200x300 hazard 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: July 29, 2020

What you Need to Know for your Psychological/Psychiatric IME

By Jo Ann Hoffman & Associates, P.A.

After your attorney files your psychological claim for the injury you sustained during your employment as a DBA security guard, what happens next? The defense attorney will schedule you to be examined by a psychologist or psychiatrist of their choosing. You’re probably wondering what to expect during the examination and what’s the purpose? This is the insurance company’s opportunity to have you examined by a doctor that they have hand-selected to determine the extent of your psychological injuries. This doctor is going to evaluate you and then write a report summarizing the results of the examination. Obviously, this report will have an impact on your case because a Judge will consider their IME doctor’s opinion when making a ruling on your case at trial. There are a few things to aware of in order to be prepared for your examination, but first understand this important nugget of information:

An administrative law judge (“ALJ”) has “the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence.” Pietrunti v. Dir OWCP, 119 F.3d 1035 (2d Cir. 1997). Additionally, person-in-black-pants-and-black-shoes-sitting-on-brown-4101143-2-300x200 an ALJ is not bound to believe or disbelieve the entirety of a witness’s testimony but may choose to believe only certain portions of the testimony. Mijangos v. Avondale Shipyards, Inc., 948 F.2d 941 (5th Cir. 1991).

There are several items that can impact a Claimant’s credibility and so the injured worker must remember:

Testimony at trial or in deposition MUST BE consistent with past testimony or statements;
Claimant must have actually seen or heard the events about which the Claimant has testified (corroborating evidence helps);
Recalling events accurately (verify your dates before you speak);
Description of events seems likely; and
Don’t go into great detail about unrelated psychological issues such as “people say craziness runs in my family.”

Continue reading →

Published on: July 2, 2020

Psychological Injuries under the Defense Base Act

By Jo Ann Hoffman & Associates, P.A.

Attorneys Jo Ann Hoffman & Associates is often tasked with helping individuals involved in terrorist or other violent attacks in places like Afghanistan or Iraq under the Defense Base Act. Indeed, our firm represented numerous contractors injured in the Al-Asad airbase attack by Iran in January 2020 as retaliation for the killing of Soleimani. The insurance carriers are accepting the vast majority of these Al-Asad airbase attack claims due to the wide media coverage.

From experiencing car bombings (VBIED’s) to being a victim of mortar and rocket attacks, these traumatic experiences can cause serious negative effects throughout the rest of the victim’s life. It is important for your Defense Base Act claim to properly label your injuries so that you are not limited later on the case.

What is a Psychological Injury?

Continue reading →

Published on: April 30, 2020

Working as a Defense Contractor Overseas During the COVID-19 Pandemic

By Jo Ann Hoffman & Associates, P.A.

Getting COVID-19 (Coronavirus) While Working Overseas

Civilian contractors working overseas face exposure to Covid-19 and may not be able to obtain adequate medical care. The Defense Department is taking preventive measures to protect US military personnel and civilian contractors. The Defense Department has ordered everyone on DOD property to wear face masks. This includes civilian contractors.

Even if you use a mask, you may be asking yourself:

Continue reading →