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If I’m Injured on the Job in Florida, Should I File for Workers’ Compensation or Sue for Personal Injury?

Posted on Wednesday, November 1, 2017
Workers' Compensation

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
  • Volunteers
  • 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.

Are You Covered by Workers’ Compensation in Florida?

Posted on Wednesday, October 4, 2017
Blog, Workers' Compensation

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.

Why Following Doctor’s Orders is Vital for Your Workers’ Comp Case

Posted on Monday, August 28, 2017
Workers' Compensation

Florida workers’ compensation law provides workers who are injured on the job with the ability to obtain full compensation for medical bills, partial compensation for wage loss, and can also compensate workers for temporary or permanent disability and loss of earning capacity.

But workers’ compensation benefits aren’t automatic. To get your work accident-related medical care paid for by your company’s insurance carrier, you’ll need to play by their rules—or you might risk losing your benefits entirely.

Florida Workers’ Compensation Law

The first thing you’ll need to do following a work injury is report the incident to your employer or supervisor as quickly as possible.

Your employer could authorize a doctor for you at the time of your injury, but their insurance company must authorize any follow-up treatment that you receive.

If your injury is serious enough to necessitate a trip to the emergency room, make sure to alert the staff that you injured yourself while on the job, and provide them with contact information for your employer or workers’ compensation insurance carrier.

Under Florida workers’ compensation law, your employer is required to send an injured worker to an authorized primary doctor and specialist (if necessary) for all care that has been determined to be medically necessary.

Types of authorized care often include:

  • Doctor’s appointments
  • Hospital stays
  • Surgery
  • Home nursing services, when necessary
  • Physical therapy
  • Dental care
  • Diagnostic tests
  • Prescription medications
  • Medical equipment, including prostheses, braces and crutches
  • Mileage reimbursement for traveling to and from medical appointments

An employer’s insurance carrier is required to approve the physician who will provide treatment for a work injury.

If your employer or insurance company does not respond to your request for medical treatment or you are billed for work accident related medical care, you should contact the Florida Employee Assistance and Ombudsman Office for assistance.

You Might Lose Your Benefits If You Don’t Follow the Rules

In Florida, the employer or workers’ compensation insurance carrier typically has the right to direct the medical treatment of the injured worker, which includes choosing the treating physician.

It is extremely important that you are compliant with the recommendations given by your treating physician because if you don’t, you risk losing your medical benefits.

Skipping appointments may also cause your benefits to stop, as will going to your own private doctor instead of the one the workers’ compensation insurance company has chosen for you.

It is important to note that doctors authorized by the workers’ compensation carrier tend to be extremely employer-friendly and likely will do everything possible to get you back on the job as quickly as possible, at the lowest possible cost.

To save money, your employer’s insurer might urge your employer to put you back to work too soon.

If you feel this is happening to you, you should get a detailed description of your proposed job duties and have your doctor review it to ensure that you are capable of performing the work.

Don’t Go Back to Work Until Your Doctor Says You Should

You should never go back to work until your doctor releases you to do so.

But be aware that if your treating doctor releases you to return to work, you are mandated by law to make a good-faith effort to do so.

If you refuse to go back, you will give up your ability to collect lost wage benefits.

Your doctor’s diagnosis is crucial to the amount of medical benefits you will receive to treat your injury and it is imperative that you comply with their recommendations. If you disagree with the orders given by your assigned doctor, you should ask for permission to change treating physicians by notifying the insurance company of your request in writing.

Protect Your Interests by Hiring an Experienced Florida Workers’ Compensation Attorney

After an injury on the job, the decisions made by your employer, their insurer, and your treating physicians will have a great impact on not only your workers’ compensation claim but also your overall health.

For this reason, obtaining competent legal representation is just as important as following your treating physician’s advice. Hiring an experienced workers’ compensation attorney ensures that you’ll receive the best medical treatment possible, and that workers’ compensation will pay for it.

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