Attorneys for a 42-year-old Connecticut man recently made the case for legal representation in a workers’ compensation matter when they obtained a $105,000 settlement for the food delivery employee, after an initial demand of $177,500 and a settlement offer of $95,000 from the insurance company.
Workers’ compensation was established to protect both the employer and the employee and to eliminate the need for litigation, but injured employees need to understand that a workers’ compensation attorney will not only protect their legal rights, but could also help them recover a more substantial settlement than what might be determined by the workers’ compensation system alone.
A worker who was injured on the job will typically file a workers’ compensation case without legal representation, particularly if their injuries are minor and temporary in nature, although there are times when it might be in the employee’s best interests to seek legal representation. But before they do so, it is important to understand the costs involved when retaining a workers’ compensation attorney.
Legal Fees in Workers’ Compensation Cases
When an injured worker hires an attorney to represent him in his workers’ compensation case, the lawyer will usually take the case on a contingency basis, meaning that the worker won’t be required to pay anything out of pocket at the onset of the case. Instead, the attorney will receive a percentage of the settlement, the amount depending upon state laws and the complexity of the case.
By eliminating the need to pay a large upfront retainer, such contingency fee arrangements allow all injured workers, including those with limited financial resources, to obtain legal representation. Contingency fee arrangements also provide an incentive for workers’ compensation attorneys to pursue maximum benefits for their clients. Generally, a workers’ compensation case that settles prior to an administrative hearing will require a lower percentage fee than one that requires a hearing or a trial in circuit court.
Workers’ Compensation Regulated by the States
State laws regulate the fees attorneys may charge in workers’ compensation cases, and these regulations vary from state to state. States often cap the amount an attorney can charge and also require that fees be approved by the workers compensation judge or appeals board before the attorney is paid. These laws vary substantially:
- A California workers’ compensation judge is free to approve a fee of between nine and 15 percent, depending on the complexity of the case.
- Florida workers’ compensation attorney fees are set at 20 percent of the first $5,000 of workers’ compensation benefits, 15 percent for the next $5,000, and five to 10 percent of the remainder, depending upon the time the attorney spent on the case.
- In Texas, an attorney is paid by the employer’s workers’ compensation insurance carrier, the percentage is are determined according to the attorney’s time and expenses and must be approved by the Division of Workers’ Compensation. Once the attorney’s fees are approved, the insurance carrier is ordered to deduct the fee amount from the injured worker’s benefits, up to 25 percent of the recovery amount.
Many states prohibit attorneys from charging fees for obtaining routine benefits for their clients, such as compensation for undisputed medical bills and lost wages, but may allow attorneys to petition the judge to order the employer or insurer to pay additional fees in certain circumstances, such as when benefits have been unnecessarily delayed or denied after they have been awarded. Percentage caps do not usually apply to these sanctions or penalties because they aren’t considered part of the injured worker’s compensation award.
Other Out-of-Pocket Costs
In addition to attorney fees, injured workers may be required to pay other out-of-pocket costs for:
- Court filing fees
- Copies of medical records and billings
- Fees for independent medical examinations
- Deposition costs
- Attorney travel expenses
- Postage and copying fees
These costs are typically not covered by the standard contingency fee agreement, and most law firms will cover these expenses as they arise, but the client will need to reimburse the firm for these costs if they are granted an award.
If you were injured on the job and have questions about retaining an attorney to represent you in a workers’ compensation claim, or need more details about the costs involved, contact DDB Law or call 888-648-5999 to schedule your free initial consultation today.
Many people do not understand the difference between a workers’ compensation case and a personal injury lawsuit. But a Florida employee who is injured on the job will need to be able to make the important distinctions that exist between the two.
Workers’ Compensation Basics
Workers compensation benefits are available to any worker who is hurt on the job, regardless of who, if anyone, was at fault for the injury. Florida workers’ compensation laws cover most but not all employees. Certain classes of employees are typically excluded, such as:
- Independent contractors
- Business owners
- Casual workers
- Employees of private homes, farmers and farmhands
- Railroad and maritime workers
- Those who are employed by companies with fewer than three to five employees
- Federal workers who are covered by federal workers’ compensation insurance
Workers’ compensation will typically pay for medical expenses, rehabilitation and some wage loss, but to obtain these benefits, your claim must be filed according to Florida workers’ compensation law:
- Report the accident to your employer as soon as possible, but no later than 30 days after it occurred.
- Your employer is required to report your injury as soon as possible, no later than seven days after their knowledge.
- The insurance carrier must send you an information brochure within three days of receiving notice from the employer.
- You will need to seek treatment from a medical provider that is authorized by your employer or the insurance company.
- Florida workers compensation coverage will replace part of your lost wages if the doctor says you must not work for a certain period of time due to the injury or illness.
In a workers’ compensation claim, most injured workers will recover benefits in a timely manner, but for some, it may be necessary to file the claim with the Florida Division of Workers’ Compensation.
Personal Injury 101
Compensation isn’t limited to employees injured on the job. Anyone who is injured due to the carelessness or negligence of another may be eligible to bring a personal injury lawsuit. But in order to recover damages, the injured party, or plaintiff, must prove that:
- The defendant acted in a negligent manner.
- Their negligence caused the plaintiff to be injured.
- The injury caused the plaintiff to suffer damages.
The plaintiff must also show proof of the amount of damages that resulted from the injury. These damages might include medical expenses, lost wages, property damage, the loss of future earning capacity and pain and suffering.
Although workers’ compensation provides financial and other benefits to an injured worker, the amount is relatively modest compared to the awards that can be obtained in a personal injury lawsuit. Personal injury cases sometimes produce awards in the thousands or even millions of dollars, but there is no guarantee what kind of award a case might bring, especially if it goes in front of a jury.
Personal injury cases may be initiated immediately after an injury, or any time up until the statute of limitations has expired. In Florida, this time period is within four years from the date of the accident. If the matter cannot be settled out of court, the plaintiff’s attorney will file the lawsuit in civil court.
Workers’ Compensation Claim or Personal Injury Lawsuit?
It is not necessary to establish proof of fault in workers’ compensation cases. However, once benefits are awarded, the injured worker gives up their legal right to sue the employer for personal injury or wrongful death, except in certain limited situations:
- The employer was required to carry workers’ compensation insurance, but failed to do so.
- The employer intentionally caused harm to the employee.
- The injury involved a defective product or a toxic substance.
- The worker was injured due to the negligent conduct of someone other than his or her employer or a co-worker.
Under those circumstances, an injured employee might be able to pursue a personal injury lawsuit against their employer or a negligent third party. Generally speaking, though, most workers are barred from suing an employer for a workplace injury, as long as they are covered by workers’ compensation insurance.
Workers often assume that they have workers’ comp coverage, and this is usually – but not always – the case.
Most Florida employees are covered by workers’ compensation insurance, with a few exceptions. Under Florida state law, if an employer in any industry (other than construction) has four or more employees, either full or part-time, they are required to carry workmen compensation insurance. Employers in the construction industry who have one or more employees must have insurance to cover each employee in need of workers compensation.
Construction industry employers in Florida must ensure that any subcontractor has workers’ compensation coverage for all their employees, and farmers with six or more regular employees and 12 or more seasonable employers who are employed over 30 days must provide workers’ compensation coverage for all employees. An out-of-state employer with employees working in Florida must have a Florida workers’ compensation insurance policy in force, or add an endorsement listing Florida to an out-of-state policy.
I’m Covered – Now What Should I Do?
The first thing you need to do is to report the injury to your employer, and ask them what doctor you can see. Florida workers’ compensation requires that injured workers see a doctor that is authorized by their employer or the insurance company. If it is an emergency and your employer is not immediately available, you should go to the nearest emergency room for treatment and advise your employer of the injury as soon as possible.
Your employer is required by Florida law to report the injury to the insurance company within seven days of when it was reported to them. After the injury is reported, many companies will have an insurance claims adjuster contact the injured employee within 24 hours to advise them of their rights and responsibilities.
Within three to five business days, you should receive an informational packet from the insurance company, which should contain:
- An informational brochure explaining the employee’s rights and obligations.
- A Notification Letter explaining the services provided.
- A copy of the accident report or “First Report of Injury or Illness” that you should review for accuracy.
- A fraud statement that you should read, sign, and return as soon as possible.
- A release of medical records to sign and return.
- Medical mileage reimbursement forms to fill out after seeking medical treatment.
Injured employees in Florida may be entitled to some or all of the following benefits under the state’s workers’ compensation system: indemnity benefits if they are unable to work for more than seven days; temporary total disability benefits if the doctor says they cannot work at all; temporary partial disability benefits if you can return to work but cannot earn the same wages that you did at the time you were injured; and impairment benefits once you reach Maximum Medical Improvement.
Your employer will be responsible for providing medical treatment to you, but do not go to your own private doctor for treatment. If you are unable to return to work because of permanent work restrictions, you may also be eligible for Reemployment Services assistance.
More Florida Workers’ Comp Facts
Here are some more basic facts about workers’ compensation in Florida:
- Florida employers are responsible for paying the entire premium for workers’ compensation coverage, and are not allowed to shift any of the cost to their employees.
- The law covers accidental injuries and occupational diseases arising in the course and scope of employment, including deaths within specific periods of time.
- Florida workers’ compensation does not cover mental or nervous injury due to stress, fright, or excitement, nor does it pay benefits for pain and suffering.
- If a minor child is injured while employed in violation of child labor laws in Florida, the employer might have to pay double compensation.
- If an employee fails to use safety equipment or observe safety rules, compensation may still be paid, but partial wage replacement could be decreased by 25 percent if the employee knew of the safety rules prior to the accident and failed to observe them, or refused to use safety equipment after the employer told him to do so.
Workers’ compensation insurance will compensate employees for occupation-related injuries regardless of fault, and makes employers immune from being sued by injured employees in civil court, unless the accident was caused by the employer’s or a co-worker’s intentional harmful conduct.