Articles Posted in workers compensation

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a long exposure on the side of a highway (the white lines are car headlights)If you have been hurt in an accident and are hoping to recover compensation from the party or parties responsible for your injuries, you should know that there are many factors that go into determining whether you can bring suit against a particular defendant and, if so, the extent to which you can recover losses such as lost wages, medical expenses, and pain and suffering.

This means that two people who have sustained exactly the same injury (or two families who have lost a loved one in an accident) may get a very different result, depending upon how the accident occurred and the identity of the possible defendants in a lawsuit arising from the accident.

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palm trees2As we discussed in a recent post, an injured person does not usually have the right to sue the insurance company of the person or business that caused the injury. There is a small exception to this rule, however. In situations when an injured person (or, in the case of death, his or her family) has filed a lawsuit against the negligent person or business and obtained a judgment, but the insurance company refuses to pay the injured person the money to which he or she is entitled under the judgment, the injured person may be able to sue the insurer directly.

In the case of Morales v. Zenith Insurance Company, the family of a man who was killed on the job filed suit against the man’s employer.  According to the family’s complaint, the man was killed by a falling palm tree while working for a landscaping firm. The family filed a wrongful death lawsuit in state court in 1999, alleging that the landscaping firm’s negligence had caused the man’s death. A default judgment was entered against the firm. Later, a jury trial was held to assess damages, with the family ultimately being awarded $9.525 million.

The Workers’ Compensation Settlement

Meanwhile, the family accepted workers’ compensation benefits from the landscaping firm’s insurance company, which insured the firm for both workers’ compensation (“Part I”) and employer liability insurance (“Part II”). The employer liability insurance provision contained an exclusion to the effect that there would be no coverage for any obligation under workers’ compensation law. In 2003, the insurance company made a “final lump sum payment” to the family in exchange for a settlement agreement that purported to constitute an election of remedies by the man’s estate with respect to both the employer and the carrier. Including the lump sum, the family received a total of $100,000 in workers’ compensation benefits.

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A whistleblower Web site less than three months old has already led to 328 complaints about companies violating Florida workers’ compensation laws, the Miami Herald reported Aug. 14. The Florida Division of Workers Compensation launched its site in June, requesting that people refer companies they believe are not in compliance with workers’ compensation laws. Visitors can complain anonymously and track the progress of their complaints through a referral number that does not identify them. They may also look up their companies to see whether a complaint has already been filed.

According to Florida’s Chief Financial Officer, Alex Sink, the site had already produced 328 referrals to companies suspected of non-compliance, including 73 in Miami-Dade, Broward and Palm Beach Counties. Of those referrals, 36 ended with orders from the state to stop all work, including eight in Miami-Dade and two in Palm Beach County. The state also levied more than half a million dollars in penalties — $526,000, including $112,000 in Miami-Dade. Complaints are about companies doing business without the required workers’ compensation coverage, which includes companies that outright fail to buy insurance as well as companies hiding their non-compliance by paying employees outside an official payroll or misclassifying their employees to make their insurance rates cheaper.

As a Hollywood workers’ compensation lawyer, I am glad to see our state actively rooting out employers who fail to comply with the law. Failing to buy adequate workers’ compensation insurance doesn’t just violate the law — it has serious negative consequences for the injured worker. By law, people injured at work give up their right to sue over the injury in exchange for the right to make a workers’ compensation insurance claim — but they cannot do that if there is no insurance. When that happens, workers are left pretty much on their own to face six-figure medical bills and the challenge of making ends meet while they can’t work. In this way, employers that fail to meet their legal obligations victimize employees twice, because the failure to buy insurance is no fault of the employees’.

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Gov. Charlie Crist should veto legislation that would harm Floridians seeking fair workers’ compensation payments, the St. Petersburg Times wrote in a May 18 editorial. The Times opposes Florida’s HB 903, legislation that reestablishes a cap on payment to attorneys in Florida workers’ compensation lawsuits. That cap sets compensation very low — in some cases, only slightly above Florida’s minimum wage. This would make it financially unwise for many lawyers, who run small businesses and often have six-figure student loan debt, to take workers’ compensation cases. And that, the editorial said, would hurt injured workers further by making it nearly impossible for them to get help in these legally and medically complex cases.

The legislation is a response to last year’s Florida Supreme Court decision in Murray v. Mariner Health — a decision I wrote about at the time. In that case, a nurse was forced to sue after she was wrongly denied workers’ compensation for an injury related to lifting a patient. She won her case, but under the formula established by the 2003 workers’ compensation “reform” law, her attorney was awarded just $8.11 an hour in fees. The Supreme Court unanimously found that this violated the law’s own requirement that fees be “reasonable” and overturned it, giving Florida judges the discretion to adjust fee awards upward or downward when necessary. Both that decision and the Times editorial noted that the attorneys for the insurance companies continued to get appropriate fees, like the $150 an hour paid in the Murray case.

As a Fort Lauderdale workers’ compensation attorney, I agree wholeheartedly with the Times. Of course, I would prefer to be able to take these cases for a reasonable fee — but the real losers if this bill passes would be people who are injured at work. I can choose whether to take a workers’ compensation case, but workers cannot choose not to be injured. Without a lawyer, they have a choice between representing themselves — tricky even in simple cases, which workers’ compensation cases are not — and giving up. Some such workers end up using public assistance programs to get health care or make ends meet, socking taxpayers with a burden that workers’ compensation insurance is supposed to bear. Worse, the situation creates an incentive for insurers to deny valid claims, knowing that the worker’s chances of overturning the decision are low.

Workers’ compensation law is complicated, involving medical, legal, insurance, workplace safety and sometimes union issues. If you have been injured at work, you have the legal right to claim workers’ compensation benefits, which include payment of all your medical bills as well as replacement wages of two-thirds your normal salary. But workers’ compensation benefits are expensive, and some insurers would rather leave hurt workers on their own than pay what they owe. If this happens to you, you should call our firm, Cohn, Smith & Cohn, as soon as possible for help. We can represent you throughout the appeals process, up to and including filing a Miami workers’ compensation lawsuit when necessary.

To learn more about your options at a free, confidential consultation, please contact Cohn, Smith & Cohn online or call us today at (954) 431-8100.

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The Florida Supreme Court struck a blow for injured workers on Oct. 23 when it overturned part of the provisions of the 2003 overhaul of our state workers’ compensation laws. In Emma Murray v. Mariner Health/ACE USA, the court overturned the 2003 law’s formula for awarding attorney fees in workers compensation cases, noting that the formula would result in attorneys’ fees that would be either excessive or inadequate. This violated the law’s own requirement that fees be reasonable, as well as past rulings on the subject. In this case, the formula resulted in an award of just $8.11 an hour for the plaintiff’s attorney, a fraction of the $200 an hour cited in the case as standard for Florida workers’ compensation attorneys and significantly below the $150 an hour paid to the lawyer for the other side.

It is probably easy to see why Florida workers’ compensation lawyers like me appreciate this ruling — after all, we stand to make more money, at least in some cases. (In others, it might result in lower attorney fees than otherwise.) It might be a little harder to see why I think this is also a victory for injured workers, so let me explain. If you’re injured at work, you have the right to claim workers’ compensation benefits, regardless of who was at fault for the injury. In exchange for that right (not the benefits themselves), you give up your right to sue your employer for any wrongdoing that caused the injury.

Unfortunately, sometimes valid claims are denied, as in this case. When that’s the case, workers have to appeal their claims through administrative hearings with the state, and eventually, by filing a lawsuit in Florida courts. It is much, much easier to succeed in this if you have a lawyer, because workers’ compensation law is particularly complex. Even many other personal injury lawyers prefer to refer clients to someone who specializes in this area.

However, the formula in the 2003 law made it nearly impossible for certain injured workers to find a lawyer who will take on their cases. If all of their fees were around $8.11 an hour, as in this case, Florida workers’ comp lawyers would simply not be able to run their offices and pay their bills. As a result, fewer and fewer lawyers in Florida were willing to take on workers’ compensation cases, which left workers stuck with no benefits, no matter how valid their claims, and no recourse other than to represent themselves or use government benefits to get the health care they need.

I hope and believe that the state Supreme Court’s ruling in Murray will change that, although it will likely continue to be an important political issue. In the meantime, if you’ve been hurt in the course of your own job and you believe your workers’ comp benefits were unfairly denied, you should talk to our firm, Cohn, Smith & Cohn, to learn more about your legal right to workers’ compensation benefits.

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