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Real Questions from Real People,
and Clear Answers from an Expert

Below are questions posted to an internet bulletin board by real people with real issues and real concerns.  The questions are not made up by the attorney, and the "More Info" was also provided as is by the questioner.  All answers were written by Ken Schwartz, a Board-Certified Specialist in Florida Workers' Compensation Law, and posted publically in response.

For expert answers to your own workers' compensation questions, call 561-478-5056.
MORE INFO: "i work for a ambulance company. i am a patient transporter. i usually have a regular stretcher to transport. the day of the accident, they switched out the stretcher for a bariatric stretcher. much heavier and had a patient about 400 pounds. i have never been trained to use the bariatric stretcher. i pulled patient over and hurt my back. i spoke with a supervisor they drug tested and advised me to goto any hospital or clinic but protocol as my boss says should of been the company they use. i went to the hospital of my choice and they said after 3 days i could return to work. i did and by the end of the shift i was in pain. advised a supervisor and they said i would have to be out on worker’s compensation. it’s been almost 2 weeks and i just received paper work from them. i just want to know if i’m able to sue in anyway?"

KEN'S ANSWER:

You asked whether you would be "able to sue in anyway." You definitely have a valid claim for workers' compensation benefits. Seeking benefits under that system -- which is supposed to be "self-executing," meaning that it works to provide benefits without the need for litigation -- is not exactly filing a suit. If you don't get the benefits you are entitled to receive, you can file a formal claim (a "Petition for Benefits"), which some people consider filing a suit. From the facts you alleged, it doesn't sound like you have any other claims, though, and pursuing workers' comp benefits from the employer's insurance company would be your "exclusive remedy" for the workplace injuries. There is no almost certainly separate suit available to you for, for example, the two-week delay you described or for the lack of adequate training on the use of the bariatric stretcher. Your best bet right now is to consult with a Board Certified workers' compensation attorney as soon as possible to discuss your facts in detail and get a better understanding of whether the insurance company is providing you with all the benefits that the system allows.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "My job is a store Manager with major retailer. Was out on workers comp for knee injury. Had knee replacement. Put me on a TAD for the same job. I am expected to get the same work done when working only 22 hours a week for a job that is over 60 hours a week normally. Same responsibilities same standards as if I was working normally."

KEN'S ANSWER:

Sounds to me very much like you work for WalMart. I know their practices very well, having defended their claims for more than three years. I know the ins and outs of how they use TAD to avoid paying TPD benefits and claiming that they have work for you within your medical restrictions but then they offer it on only a limited schedule. If you need the assistance of an experienced attorney to see that your hours are properly protected or your lost wages are recovered, find one who has been through these battles before and has gone to trial for his/her clients, like those of us who are Board Certified as Experts in the area of Workers' Compensation Law. Regardless of whom you decide to call, you should reach out to a lawyer as soon as possible to discuss your situation promptly and privately.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "I reached into a wall cabinet at my employer and it came off the wall and hit me due to improper fastening leaving my with a questionable concussion and bruised arm"

KEN'S ANSWER:

Anyone injured on the job should promptly inform his/her employer that an incident happened and request that medical care be provided, if needed. It's often advisable to do this in writing, so that there is no dispute later on that the employer was timely notified of the incident and what exactly was said when notice was given. The employer is obligated to report the incident to their workers' comp insurance carrier, and the carrier is obligated to contact the injured employee to advise him/her of his/her rights and obligations under the w/c system. Ideally, the adjuster would offer the injured employee the opportunity to see a primary care physician at that time to evaluate the injuries and refer the injured employee to a specialist, if necessary. (Persistent symptoms after a blow to the head should be looked at by a neurologist.) If there are visible injuries of any kind, including bruising, I advise my clients that they should be taking pictures of the affected area(s) on a daily basis.

Notably, you said that the cabinet came off the wall due to improper fastening. If that can be proved, you might have a claim under premises liability (outside of the w/c system) against whoever installed the cabinets and/or the building owner. There are different damages potentially available in civil court, so this could be worth pursuing. Another attorney suggested also taking pictures of the wall cabinet. I agree with that. It might also be wise to take pictures of any similar cabinets in the area, documenting any visible signs of damage, fatigue, or other issues that might support your suspicion about the cabinet being poorly installed.

If your employer refuses to contact their w/c carrier about your incident, or if the carrier refuses to provide you with medical care promptly, you should contact a w/c attorney. If you do, bring up the "improper fastening" allegation.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "I just had my fce yesterday and I have a Ortho appointment Friday and I was wondering what happens after a fce the physical therapist did say that I can not return to work with my back injury but I'm really nervous on what happens from this point on I'm 27 with a 4yr old daughter and a fiancee, anyone have a idea if they would offer a settlement or something would it be enough to support my family? How do they calculate what they offer me? What happens if the doctor MMI me on Friday how long after do I receive offers if I even get one? Please help"

KEN'S ANSWER:

I often don't agree with lawyer posts on these boards that advise "Get a lawyer!" In this case, though, I wholeheartedly agree that you need to talk to someone before you take any further steps in your case. The circumstances you describe suggest a realistic possibility of entitlement to "permanent total disability" (PTD) benefits, and you also seem interested in trying to settle your case. Entitlement to PTDs, especially for a person as young as you, almost certainly would make a six-figure difference in what an injured worker recovers, whether short-term by settlement or long-term by keeping the case open. So, the insurance company is not likely to agree that you're PTD without a struggle.

Importantly, though, there is far more involved in settlement than just agreeing with the insurance company on a "fair" number for them to pay you, whether PTD is on the table or not. You should immediately contact a Board Certified Specialist in Workers' Compensation Law to discuss such things as whether a Medicare Set-Aside (MSA) will be necessary in your case, whether an independent medical examiner (IME) might be needed to help build your PTD case, and whether you have any other opportunities to obtain additional medical opinions, so you can make a fully-informed decision whether settling your case would be in your best interests.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "Employee wants to come back to work after being out sick at the doctor's and claiming a workmans comp claim which was denied stating not work related. We have hired a replacement employee already and no longer have a open position for this employee. Can employee claim this as wrongful termination? We are a small business of 20 employees."

KEN'S ANSWER:

You asked two questions. My answers are: yes, it is possible to terminate an employee without repercussion even though that person filed a workers' comp claim; and yes, that person can allege that the termination was wrongful.

Nothing in Florida's laws says that workers cannot be discharged from the jobs they had when they (allegedly) got injured. But, they cannot be lawfully discharged BECAUSE they alleged that they were injured on the job. Section 440.205, Florida Statutes, states that 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 Workers’ Compensation Law. If an employer violates this section, the employer can be sued in civil court for damages above and beyond anything that the injured worker might get in the form of workers' comp benefits from the employer's insurance company. These damages could include punitive damages, which don't exist in the w/c system.

An important note in your situation is that a "valid claim" is not limited to one that is accepted as compensable (i.e., not denied) or where benefits are awarded by the judge. The claim just has to be one that puts the employer on notice that a claim for workers' comp benefits is being made against it.

Based on the above, I would strongly recommend that you talk to a lawyer about your situation before you decide to terminate (or otherwise take any action against) this employee. Make sure you ask what "pretext" means in this context and have the lawyer explain what might constitute an "adverse employment action."

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "I was assaulted at work by a co-worker right in front of my supervisor. I was punched in the eye/nose really hard at work. I didn't react, I decided to call the police instead. And everybody ran to their cars. I was surprised the supervisor didn't seek medical services for me or why he failed to provide me with workman's comp information. The police did a report, saw the video and arrested the co-worker. I got a fracture on my nose, a black eye with lacerations, and I don't know how it's going to affect my vision in the future. What type of law do I need to seek legal advices from ? Thank you"

KEN'S ANSWER:

You need to find out who the workers' comp insurance carrier is for your company and call the reporting hotline immediately. (Look for the "broken arm" informational poster that's usually kept in break rooms, as it is supposed to have the carrier's contact number on it.) They will take your claim information and promptly send you information by mail. Hopefully, they will also immediately direct you to a medical facility for an examination at no charge to you. It's not clear yet, but you might need a workers' comp attorney to guide you through the process of getting all the benefits that the system allows.

Note that you seem to have a pretty good case against the co-worker for civil battery, and -- because you're in Palm Beach County, where the 4th DCA is -- you might even be able to bring a suit against the employer for negligent hiring or negligent supervision, if the facts bear out that they shouldn't have had the guy who hit you on the job site. If you don't get a w/c attorney, you could talk to a personal injury lawyer about this.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "I’d gotten cut by a glass case door when it shattered after only opening the door and when the managers arrived they only said “again? This is like the 3rd or 4th time” yet I had not been notified that this was a possible problem when using the case."

KEN'S ANSWER:

Your employer is likely immune from suit for negligence, because the test is whether there was a "virtual certainty" of injury or death, which makes the injured worker's burden of persuasion extremely high. Whether the employer deliberately concealed the problem from you or misrepresented the danger is an important bit of info. Even if you can't sue the employer for workplace negligence, though, you still appear to have more than one possible claim here.

First, you got hurt on the job, so there is the probability of workers' compensation benefits.

Second, whoever owns the property that repeatedly installed the faulty glass case door might be responsible under a premises liability theory, even if that owner also happens to be your employer.

And, third, you might have a product liability claim against the manufacturer of the glass case. Why does it keep breaking? Is it because of a faulty design?

You should definitely discuss all of the above with an attorney with proven trial experience. Board Certification is a good indicator.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "I injured my lower back at work, and after a month of going to dr's and therapy, they just denied the claim and canceled all coming appointments. I have been paid for lost wages so far, was diagnosed with degenerative disc disease and some other stuff, my work is very physical 20 years lifting heavy stuff all the time. so far meds and PT have not work well, therefore going to work is nearly impossible at this point. I had a recorded statement and I answered questions to the best of my knowledge at least as far as I remember. I told them about a car accident 12 years ago which I barely remember, I had a very simple knee surgery, I dont even remember which knee and can't even find scars. Im sure I may have missed some info, but still gave all I remember. They asked if I was ever diagnosed or treated for back/neck injuries, I said no, I was never given any of those, I don't even have any paperwork from that time. Anyway, It would make no sense for me to misled or lie to the adjuster because, all they need is to run my SS and they will find all my medical records, thats why I signed the release form for. is it worth to get an attorney to fight it?"

KEN'S ANSWER:

You specifically asked whether you can fight a workers' comp claim that has been denied under section 440.105, Florida Statutes. Based on your question, I'm going to assume that you mean 440.105(4)(b), which the carrier would invoke if they thought you made material misrepresentations to try to get w/c benefits. Yes, you can fight that.

You then asked whether it'd be "worth it" to get an attorney to fight for you. If you want to win that fight, you'd better get an experienced attorney who has actually gone to trial on this type of case. I recommend looking for someone who is Board Certified in w/c. Avoid large settlement farms (where the attorneys often have quotas, making you a means to an end, not a priority). When you go to hire an attorney, I wouldn't sign anything until you've actually talked to the attorney who would personally defend you at trial. Don't waste your time with a paralegal or someone who calls him-/herself an "intake specialist" or some other such thing, as that person's job is to sign up clients, not offer true consultation on how the complicated workers' comp system works or an honest opinion as to whether the attorney can help you. Ask that attorney for a copy of at least one "final order" showing that s/he has done this before. That will screen out a lot of hacks.

Most w/c attorneys have negotiated settlements where the so-called "fraud defense" has been floated; but, the game changes once the case reaches a point where it's become clear that compromise is not possible. So, you need someone on your side who you know isn't advising you to settle just because that might be too risky and/or too challenging for the attorney.

Anyway, you also raised several issues that merit discussion with the attorney, including whether your claim was ever actually picked up as compensable (i.e., the carrier accepted liability) then issued a denial versus having picked it up under the 120 Day Rule to "pay and investigate" before denying the claim without prejudice to its right to deny, whether an authorized doctor gave an opinion on the DDD as the major contributing cause of your need for care, whether you need further remedial medical care, whether additional indemnity (disability for lost earning capacity) benefits might be owed, whether you have group health insurance, and whether the carrier alleges that you made material misrepresentations about your medical history. Mentioning Social Security brings up several other issues, including why you were on it and whether you are a Medicare beneficiary. Regardless of whether the fraud/misrep defense that was raised has merit, a good attorney will want to know more about these other issues before deciding to take the case. The carrier might actually have solid defenses that suggest to the attorney that your best interests would not be served by fighting the 440.105 issue just to preserve a case that won't get you anywhere anyway.

So, long story short, you should go talk to an attorney as soon as possible. When you do, make sure you bring every scrap of paper you've got that relates to your case.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "Also was talked about to another employee and they laughed at me"

KEN'S ANSWER:

You appear to have raised two different issues, both related to privacy of your medical issues.

First, you ask whether you can sue a doctor or doctor's office "for saying I’m faking my injury" to get workers' compensation benefits and for talking about your injuries. Depending on who the doctor('s staff) talked to, you are probably out of luck there. A section of the Florida Workers' Comp Law states that an employee who reports an injury or illness alleged to be work-related waives any physician-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation. And, upon the request of the employer, the carrier, an authorized qualified rehabilitation provider, or the attorney for the employer or carrier, the medical records, reports, and information of an injured employee relevant to the particular injury or illness for which compensation is sought must be furnished to those persons and the medical condition of the injured employee must be discussed with those persons, if the records and the discussions are restricted to conditions relating to the workplace injury. Release of medical information by the health care provider or other physician does not require the authorization of the injured employee. Any such discussions or release of information may be held before or after the filing of a claim for w/c benefits without the knowledge, consent, or presence of any other party or the injured employee's agent or representative.

On the other hand, if the doctor('s staff) talked to anyone not authorized by the aforementioned statute to learn about your medical conditions, or they disclosed any medical records to unauthorized parties without your consent, the doctor('s office) could have a very large problem. Florida law allows for civil suits for breach of fiduciary duty and negligence in the form of a breach of the duty to exercise reasonable and ordinary care to keep your medical records confidential. To be successful, you would have to show that the negligence caused damages, not just that the records were disclosed.

Second, you stated that: "Also was talked about to another employee and they laughed at me[.]" You didn't say there who did the talking or whether the other employee had any right to learn the protected health information. Some employees, such as certain HR people (e.g., those handling benefits administration or conducting internal investigations), are authorized to learn about your medical condition. Those people still have an obligation to keep your medical information private and not have a laugh with our co-workers about it, though. If an unauthorized disclosure took place at your employment, you might have grounds to sue for it.

Lastly, you didn't mention this, but I could see where being laughed at in the workplace is followed by some sort of adverse employment action by management, especially if the word being spread is that you're faking injury to obtain w/c benefits. Note, though, that another section of the w/c law permits suit to remedy retaliation by the employer. Specifically, it states that 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 Workers’ Compensation Law.

Long story short, you should go to an experienced employment lawyer to discuss all of what I mentioned above. If you are also having trouble getting what you feel is the appropriate medical care for your workplace injuries, then you should separately go see an experienced w/c lawyer.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "I just reached my MMI today with a permanent impairment rating of 25% due to the presence of a total hip arthroplasty with moderate results of the lower extremity which equates to 10% whole person impairment. So what will I be paid out on? "

KEN'S ANSWER:

By statute, the date of maximum medical improvement is the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability. At MMI, the authorized physician must assign a “permanent impairment” rating (PIR), which purports to measure the amount of any anatomic or functional abnormality or loss, determined as a percentage of the body as a whole that results from the injury that exists after the date of maximum medical improvement. So, theoretically, a 10% whole-body PIR means that you are 90% as good now (at MMI) as you were before the accident.

Most injured workers don't agree that the PIR paints an accurate picture of their post-MMI physical abilities, though, or of their ability to find work again. If you don't agree, either, and you think that there is a possibility that the accident has left you unable to engage in at least sedentary employment due to a physical limitation caused either by the accident or the treatment for it, then you are a candidate for permanent total disability (PTD) benefits (which is an alternate category from what's paid based on your PIR). If so, then you should go see an experienced attorney immediately.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "Can I resign my job and sue the company for my workers comp injury seeing they took 5 days to send me to the Doctor when I got injured, only to find out that I have to get surgery, which took forever for them to schedule it. Now that surgery is done and it's now 4 weeks out of the cast and I am in in ridiculous pain in my feet where they put pins, plates and screws. If I have to get a SECOND surgery can I resign and sue the company? Also can I switch the surgeon?"

KEN'S ANSWER:

You asked: "Can I resign my job and sue the company for my workers comp injury...?" Those are two unrelated questions. Nothing about having had a work accident compels you to stay with the employer a the time of the accident. Indeed, in most cases, the employer is glad to see an injured worker leave. As for suing, you'd need a better reason than "mere delay" in the claim handling process, as the Supreme Court has already stated that that is not a basis to turn a workers' comp claim into a lawsuit.

You also asked: "Also can I switch the surgeon?" The law allows for one change of physicians during the course of treatment, but you didn't tell us whether you've already made use of that option. Whether you *should* make use of that option is probably something you should talk over with an attorney. There's strategy involved is whether/when to use the one-time change.

You should really go see a Board Certified workers' comp attorney as soon as possible to discuss your situation in detail in confidence, hear all your options, and get educated recommendations based on that person's years of experience handling claims like yours. Time is your enemy in these situations, so don't delay any further getting an advocate on your side.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "I was out for more than 12 weeks on medical leave in my return I was demoted and pay was cut. Due that my manager didnt report the accident I wasnt on workers comp"

KEN'S ANSWER:

If the accident was in the course and scope of your employment, and your need for medical care from it was reported to your manager within 30 days of the accident happening, then you would have a strong case for entitlement to benefits through the workers' compensation system, including medical care and back pay for time missed due to your injury. Depending on the circumstances of the demotion and pay cut, you might also have cases for retaliation and/or violation of FMLA rights. You should go see an experienced workers' comp attorney immediately. Find one with a verifiable track record for taking cases to trial, not one that brags about settlements. Don't delay any further.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "Several months ago I suffered a repeated stress injury at work as the result of 80+ hour work weeks and immediately informed my company's HR department. My HR representative was very slow to respond and ghosted me when I specifically asked for information about filing for worker's comp, and what doctors I could see. When I learned independently that my company has a designated worker's comp department, I went there, and was examined by a nurse/caseworker who tried to convince me my injury was pre-existing (it wasn't). They never provided me with a claim number or the name of a doctor to visit, and my doctor's office said they couldn't process my visits under worker's comp without a claim number. I have already spent thousands of dollars out of pocket on medical expenses related to this injury, and I will likely require an expensive surgery in the coming months to completely recover from my injury. Do I have any recourse? Will I be able to recoup payment from my company's insurance to cover these medical bills, or am I out of luck because the doctor's visits weren't processed as worker's comp up front? Is legal action needed to resolve this?"

KEN'S ANSWER:

It's not clear (to me, anyway) what happened to you at work. You referred to "a repeated stress injury at work," which sounds to me more like an emotional issue; but, you mention likely needing "an expensive surgery in the coming months to completely recover from my injury," which suggests physical injury.

If the former, then s440.093(1), Florida Statutes, will be a problem. It says that a mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment. Nothing in that section shall be construed to allow for the payment of benefits under the W/C law for mental or nervous injuries without an accompanying physical injury requiring medical treatment.

If your injury was physical, then you should be able to get benefits under the W/C system through your employer, because you "immediately informed [your] company's HR department," putting them on actual notice of the need for medical care due to a work-related injury. If the HR Dept won't help you process a claim, then you can report the matter directly to their insurance company. You can look up who that is online or, even easier, try to get the info off the Broken Arm poster that should be posted in a breakroom or other conspicuous place that employees can see it.

It's not clear from your allegations whether you'll be able to get the "thousands of dollars out of pocket on medical expenses [you spent] related to this injury" back from the carrier, but an experienced W/C lawyer should be able to give you a good estimate of your chances after hearing all the details. So, I recommend that you go see one immediately. Delay is your enemy in this matter. Go get help promptly.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.
MORE INFO: "My employer lied saying I failed my drug test when I hadn't been on any drugs. They dont want to send a copy of the drug screen because they know they lied. Do I have a case? And could I win if evidence shows I was clean?"

KEN'S ANSWER:

This question was posted under "Workers' Compensation," so I'll assume that you were drug tested after an accident. If so, you can request a "confirmation test," under 440.102(1)(b), Florida Statutes, which is defined as a second analytical procedure used to identify the presence of a specific drug or metabolite in a specimen, which test must be different in scientific principle from that of the initial test procedure and must be capable of providing requisite specificity, sensitivity, and quantitative accuracy. Based on your allegations, I would recommend you consult immediately with an experienced w/c trial lawyer before you take any steps (and possibly make any mistakes). Don't delay.

For more detail about this issue or any other workers' compensation question, call 561-478-5056.