Frequently Asked Questions - What is Workers’ Compensation and what does it cover?
Workers’ compensation in Florida is a legally required system of benefits that are available to most employees who are injured on the job. It is a no-fault system, meaning that for the most part negligence in the cause of an accident is a non-issue. You can be totally at fault or negligent in causing an accident, and this does not disqualify you from receiving benefits. Conversely your employer or coworker can be negligent in causing the accident, and this does not entitle you to additional benefits. Workers’ compensation is said to be both a shield and a sword as far as providing for benefits. It is a “sword” in that your Employer can’t defend against your claim by saying you were negligent in causing the accident. It is a “shield” that protects Employers from having to pay employees many of the damages that are available to non-employees who are injured as a result of the accident.
An example illustrates the “sword and shield” aspect of workers’ compensation. Let’s say Evan is a very careless cook. He barely pays attention to what he’s doing. He’s heading out the back door at work, hands full of garbage, to throw in the dumpster. As he rushes down the well-lit stairs, he trips and falls down fracturing his knee cap. His boss comes to his aid, and sees that Evan as usual was carrying way too much to be safe and his shoelaces were untied. You might think that Evan doesn’t have a claim because his carelessness caused the accident. But you’d be wrong.
Now let’s change the facts slightly. Evan instead of being careless is extremely careful. He always ties his no slip shoes in double knots, never rushes down the stairs, and never carries more than he should. But his manager has been fairly slack lately. The light on the stairs burned out, and he knows that one of the steps is broken and is a tripping hazard. Nevertheless he’s too busy to deal with that issue right now. As a result, Evan trips on the broken unlit stair that his boss knew about, but didn’t even bother to warn Evan about. If you think that Evan can now sue his boss or Employer for negligence as a result of his manager’s careless actions, you would also be wrong. Careless Evan has the same rights as an injured worker as careful Evan does. That may seem unfair, but that is a consequence of fault of negligence being a non-issue in workers’ compensation.
So what benefits do you get when you’re injured on the job? There are basically two classes of benefits. These benefits are known as indemnity benefits and medical benefits. Indemnity benefits is money that is paid to the injured worker as a result of missing time from work because of the accident. Medical benefits are the care provided to you in the way of emergency treatment, follow up doctor visits, medical testing, physical therapy, prescriptions, etc. Those are the only two types of benefits you get under workers’ compensation - indemnity and medical. Not included within the workers’ compensation benefit system is money for pain and suffering, loss of enjoyment of life, mental anguish or emotional anguish. If you can’t run, or jump, or walk like you used to there is no compensation for that. If you can’t pick your child up anymore because of your back injury, again there is no payment for that. If your marriage falls apart, your car is repossessed and you’re evicted from your apartment, you receive no compensation for these damages. Medical care and lost wages to a certain extent - that’s it. Everything else are losses that the system will not compensate you for.
So let’s examine who is entitled to these benefits. First of all, you have to be an employee. Independent contractors (or 1099 workers) are not entitled to workers’ compensation benefits. Secondly, the company that you work for has to be big enough to be required to carry workers’ comp benefits. If there aren’t at least four employees, then the Employer isn’t required to carry workers’ comp insurance unless it is a construction job Also, there are certain jobs that aren’t covered in Florida under workers’ compensation. Examples of jobs that aren’t covered are most real estate agents, owner-operators of trucks, most volunteers, and taxi cab drivers.
So let’s say you qualify as an employee under the workers’ comp system, does that mean that you’re entitled to benefits if you suffer an injury or have an accident at work? Like many legal questions, the answer is that it depends. First, the accident or injury has to “arise out of” and be “in the course and scope” of employment. Arising out of work basically means that some aspect of the work caused the accident. An example of a relatively frequent occurrence at work that is not usually a work related accident is a heart attack or stroke. If you’re sitting at your desk and you suffer a heart attack during work hours, this is not going to count as a workers’ comp injury. It may have happened at work, but the work did not cause the heart attack. Even if you have a very stressful job and you’re boss has been harassing you relentlessly and you have a stroke due in part to the other emotional toll work takes on you, this is not going to be covered. The heart attack, stroke, or other “internal failures” are considered to be personal in nature and unrelated to your work duties. Therefore the fact that the event happened at work is not enough. Exceptions to these exclusions arise if : (a) you are involved in an unusual strain or exertion at work, or (b) you are involved in an occupation where there is a presumption that such an event is work related - such as a law enforcement officer or fire fighter.
“In the course and scope of employment” is also required for an accident to be covered under workers’ comp. To be in the course of employment, you actually have to be at work. If you have a car accident either on your way to work or on your way home, most times those accidents are not going to be considered work related accidents. There are exceptions. To be in the scope of employment, you have to be doing something related to work or at least engaged in some sort of reasonable activity the Employer could have foreseen. If your job is to do desk work in an office but you injure yourself when you and your buddy decide to have a race down the stairway to see who’s in the best shape that accident is not going to be considered work related. You have unreasonably deviated from your job duties to the point that what you’re doing at the time of injury is no longer sufficiently connected to work to be considered work related.
So let’s say you’ve cleared the hurdles of being an employee that’s injured in the course and scope of your job by an accident that arose out of work, what do you get? To be entitled to lost wages, you have to miss a certain amount of work and the disability has to last a certain period of time. If you miss less than a week from work, you’re not going to receive lost wages. Also if you have an injury that heals within three weeks, you’re not entitled to temporary benefits. If you do suffer an injury that keeps you out of work for an extended period of time, then you will receive compensation. However, this compensation is not your full salary. Rather you receive approximately two thirds of what you were making at the time of the accident. If the doctor says no work at all, then you get 66.67% of what you were making at the time of the accident. If the doctor says you can work with restrictions AND the Employer is unable to accommodate those restrictions, you will receive 64% of your salary. But if your Employer is able to accommodate those restrictions and you are making 80% of your pre-injury wages, you receive no compensation. So bottom line is that if you are missing work because of a work related accident, you will lose wages. The longer your disability, the more wages you can lose. Unless you settle your case at some point, those lost wages are gone for good and will not be recovered.
A further restriction on your ability to receive lost wages is that those benefits are only paid for a certain period of time. Once you have achieved maximum medical improvement, which is the doctors way of saying you’re as good as you’re going to get, you don’t get any more temporary benefits. Even if you have not returned to work or your job is no longer available, your temporary benefits end. If you receive an impairment rating due to a permanent injury, you will receive permanent impairment benefits, but those benefits are less than the temporary and they are very short lived. They usually just last a matter of a few weeks or months. Only very few injured workers, the most severely injured, have a chance of receiving long term permanent benefits called permanent total disability.
When it comes to medical care, your rights or benefits also have significant limitations. If you have an injury that requires emergency care, then you can get that care without first getting Employer or workers’ comp carrier approval. After that initial medical care, who you see for medical treatment is not your choice. Your Employer or more often its workers comp insurance carrier will tell you who you can treat with. If you don’t like the doctor they select, then you can get a one time change but that’s it. Moreover, you don’t get to select that next doctor either. Again the workers comp insurance carrier picks the doctor. You can get what is called an IME, or “independent medical doctor”, but you have to pay for that doctor out of pocket. Your health insurance won’t cover it.
One of the few positive aspects of the medical care is that you don’t pay for it at all, other than a $10 copayment once you reach maximum medical improvement. The insurance company is responsible for all other costs of medical care including prescription medicine and physical therapy. Still as you can probably see by now, workers’ comp is not a great system. It’s also a complicated system.
If you find yourself in the workers comp system, you’re better off getting advice and possibly legal representation sooner rather than later. Mistakes made in the workers’ comp system can be difficult if not impossible to unwind. And certain mistakes can mean the end of your case entirely. So if you have a workers’ comp accident, contact us immediately. The advice is free, and you are under no obligation to hire us. If you do hire us, you won’t be out of pocket for any fees or costs. We only get paid when we get benefits for you!