Workers' Compensation

Florida Appellate Court Allows Lawsuit to Proceed Against Negligent Coworker

Published on: June 4, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A Florida appellate court recently dealt with the differences between personal injury lawsuits brought against a decedent’s employers versus his coworker who caused his injury/death. In this case, the defendant was a spotter driver who used tractors to move trailers for purposes of loading and unloading merchandise. One morning, he was called to the loading dock and he arrived by tractor. Another worker was next to him in another tractor. The defendant drove to the dock and got out. Meanwhile the other worker also parked in the loading dock area and got out of the tractor.

The defendant assumed the worker was going to talk to another driver, hooked the tractor to a trailer and got back into his tractor. He backed up the trailer and felt a bump. There was no way for the defendant to see what happened behind the trailer and the backup alarm was not working. The defendant later testified he knew the backup alarm wasn’t working. The other worker had walked behind the trailer and had been crushed between the back of the trailer and the warehouse dock pad.

The defendant testified that he had not reported that the backup alarm was not working to the employer’s maintenance group. The employer’s safety protocol would have required the tractor be taken out of service to repair the backup alarm. On routine checks, the maintenance staff had not, apparently, checked the alarm themselves.

The Occupational Safety and Health Administration (OSHA) cited the employer for the inoperative backup alarm. Meanwhile, the decedent’s representative filed a lawsuit against the employer and the driver that caused the death, alleging an intentional tort against the employer and gross negligence against the driver.

Florida Workers’ Comp Limitation Ruled Unconstitutional

Published on: April 26, 2013 | by Friedman Rodman Frank & Estrada, P.A.

A recent victory for injured Florida workers in a workers’ compensation case, Westphal v. City of St. Petersberg, has upset the insurance industry. In the case, a firefighter challenged an order denying his claim for permanent total disability benefits and the constitutionality of the entire system of workers’ compensation benefits. The firefighter (who was also a paramedic) suffered nerve damage in his legs that required spinal surgery and other treatment during the course of his work.

After the accident that gave rise to this claim, the firefighter’s employer, the City, accepted the claim and paid the firefighter benefits for total temporary disability. The firefighter was forced to abide by the City’s choice of doctors and their medical recommendations, or forgo workers’ compensation benefits that he needed. He required multiple complex surgical procedures.

Even after the most recent surgery, about three years out from the occurrence of the accident, the firefighter was not able to work or obtain employment. He had exhausted the state limit of 104 weeks of temporary benefits, but permanent total disability benefits only kicked in when he reached “maximum medical improvement.” His physicians could not determine his long-range medical prospects and could only speculate. He had not yet reached “maximum medical improvement” but his injuries were so severe that doctors also advised him not to work.

Accordingly, the firefighter was denied permanent total disability benefits. He fell into a “statutory gap” that is not rare, where he had surpassed the number of weeks he could claim temporary total disability, but he had not reached a state where the nature of his permanent disability could be assessed.

Florida Court of Appeals Determines Injured Worker Qualifies for Permanent Total Disability

Published on: April 4, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s First District Court of Appeals issued a ruling that an injured worker who could not find a job at an approved level of physical restriction within his vocational capabilities qualified for permanent total disability. The injured employee worked at a trucking company for nearly three decades and suffered an injury on the job. The injured worker reached maximum medical improvement, the point where his health could not get better even with the assistance of medical care, and sought permanent total disability.

Different types of employment require varying levels of physical exertion. Depending on the type of injury sustained, an injured worker may need to adjust his or her level of exertion on the job. The U.S. Department of Labor classifies the different levels of exertion as sedentary, light, medium, heavy, and very heavy work. The injured worker in this case was employed as a driver of semi tractor-trailers and field tractors, which was determined to be medium work. Medium work is defined in the Dictionary of Occupational Titles as work that requires lifting of 50 pounds with frequent lifting or carrying of objects weighing up to 25 pounds. The injured worker was assessed by a doctor who reported that his injury limited his physical restrictions at work to light to medium duties. Light duty is defined as lifting less than 20 pounds with frequent lifting or carrying of objects weighing up to 10 pounds.

The employer hired someone to do a re-employment assessment for the injured worker. The assessor determined that the injured worker should return to work for the same company as a security guard, as that was the only position available that stayed within the realm of the injured worker’s physical exertion limitations. However, the employer had no open security guard positions at the time of the assessment and made no effort to offer a security guard position to the injured employee.

The Court of Appeals looked at whether the injured worker was able to engage in at least sedentary employment within a 50 mile radius of his residence. The assessor stated that the employer’s security guard post was the the only suitable position as the injured worker could not be placed anywhere else. The Judge of Compensation Claims had previously ruled that the injured worker did not show he could not engage in at least sedentary employment, but the Court of Appeals said the opposite was true. The court thought the fact that his own employer couldn’t even provide him with a job showed that he was unable to find appropriate employment that would accommodate his injury.

Florida Court of Appeals Allows Construction Worker to Sue Fellow Subcontractor for Gross Negligence

Published on: March 7, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s First District Court of Appeals recently issued two opinions in one case, Villalta v. Cornn Intl., that assessed whether workers’ compensation statutory immunity applied to a contractor and subcontractor. A construction worker was finishing drywall when his ladder slipped into a cutout left by other subcontractors. He fell through the cutout and died from his injuries, and the personal representative of his estate brought suit against the contractor and all subcontractors tied to the project.

A Florida construction contractor hired two subcontractors, one for drywall installation, and one for HVAC installation. The drywall subcontractor hired their own subcontractor to do the finishing. The sub-subcontractor employed the deceased plaintiff. The cutout that caused the plaintiff to fall was made by the HVAC subcontractors, who did not warn the other subcontractors of its presence or use the proper guidelines to ensure safety of the area. Workers’ compensation was available to the deceased’s workers family, but they elected to also pursue a personal injury action against all liable parties.

Florida’s workers’ compensation is a state-mandated insurance fund designed to provide injured workers or their families with the compensation they need when an employee is injured or killed at work. Because compensation is ensured, Florida also grants immunity to employers unless they committed an intentional tort, and to fellow subcontractors unless there was gross negligence. When the injury or death occurs on a construction site, the relationships are assessed to determine which statutory immunity applies, if at all.

The Court decided that the contractor was immune from a personal injury suit because they were in a vertical relationship, defined in Mena v. J.I.L. Construction Group, Latite Roofing & Sheet Metal Co. v. Barker, and also Dempsey v. G & E 3Construction Co. The only exception to immunity is when an intentional tort (when someone has been hurt purposefully) has occurred, and the Court ruled that it didn’t exist in this case. The HVAC subcontractor is also granted immunity, however the exception is merely gross negligence (willful and wanton misconduct) instead of an intentional tort.

After litigation began, the HVAC subcontractor moved for summary judgment, arguing that they are entitled to immunity. The trial court initially agreed, but the Florida Court of Appeals looked at the facts and ruled that it was for a jury to decide whether or not the events that led to the employee’s death were gross negligence or standard negligence. The deceased employee and his representative now get to move forward in the personal injury suit against the HVAC contractor.

South Florida a Leader in Recovering Wages for Employees Denied Wages

Published on: February 24, 2013 | by Friedman Rodman Frank & Estrada, P.A.

The “wage theft” Miami-Dade County ordinance, enacted in 2010, has entered the national spotlight as an example of local legislation created to solve a problem that plagues much of Florida and other states around the country. The program was created to help employees recover funds that are owed by employers for a number of reasons. It is designed to especially aid those who exist on the fringes of society, excluded by a language barrier or illegal resident status.

The ordinance requires a minimum amount of $60 of unpaid wages to file a claim. The maximum amount of recovery in a claim for lost wages is three times the amount of unpaid sums plus administrative costs. Often, this recovery is used as a negotiating “stick” to influence the employer to pay the wages owed to the employee without a formal hearing. However, if a hearing is required it can take quite a bit of time to actually be held. Wronged employees may also use other alternatives to pursue their claims through civil action in state or federal court. These claims cannot be filed simultaneously with a local wage theft claim.

Part of the reason the local ordinance exists is because of lax requirements imposed on Florida’s employers at the state level. Florida no longer has a Department of Labor and has very low unemployment benefits. Generally, if wages are to be recovered it would be through a workers’ compensation action for lost wages due to an injury or death on the job.

Workers’ compensation is insurance coverage mandated by the state of Florida, designed to help workers receive much-needed financial assistance for the employee or employee’s family to pay for hospital bills, basic living expenses, education for a new field of employment, or funeral costs. Lost wages are calculated by looking at the average weekly wage the employee was making at the time of the injury or death causing accident. This number is calculated with a few multipliers set by the government, including an impairment rating. An injured employee must be seen by a doctor or therapist in an independent medical examination where an assessment is made determining whether the employee is partially or totally disabled, and whether this is temporary or permanent disability. Consideration is also given for the psychiatric stress caused by an accident.

An injured Florida employee is unable to file a personal injury suit against an employer when there is workers’ compensation since the employee with a qualified injury is guaranteed a type of recovery, dissolving the need for other avenues of legal relief. However, an injury may also be caused by the negligence of a 3rd party who is outside the workers’ compensation immunity or by a defective product made by a negligent company. An injured employee or their family may then file a personal injury or wrongful death action in Florida’s state or federal court.

Injured Florida Worker Denied Opportunity to Hold Negligent Employer Liable

Published on: February 7, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Florida’s Fourth District Court of Appeals recently echoed a lower court’s ruling that prevented an injured Florida man from holding his employer directly liable for his construction accident injuries. Florida grants immunity to employers since employees are covered under mandatory workers’ compensation insurance. Workers cannot pursue personal injury claims against the employer unless they fall under the narrowly tailored exception. In this case, the court maintained that the worker did not show the employer knew of the danger from prior occurrences, that he himself was unaware of any dangers, and that the employer actively misled the worker of the project’s safety.

The worker was employed by a construction contractor who was installing a nine-ton wall on the day of the accident. Safe installation of that size of wall depends heavily on favorable weather conditions and cannot be performed if the wind speeds are too high. Prior to the accident, the installation had been delayed due to high winds over 20 mph. On the morning of the accident the winds were determined to be safe enough to proceed. Testimony from the general foreman and one of the crane operators differed from each other. The foreman testified that he radioed to the crew and informed them of 16-18 mph winds, but the crane operator recalled being informed the winds were 12-15 mph. The injured worker provided conflicting accounts, some indicating that he was concern with the windy condition, but didn’t know what it was and nonetheless relied on wind speed confirmation from the general foreman.

The Court looked to the last 13 years of case law and legislative action surrounding the immunity exception and pointed out that no employee has been able to show with virtual certainty that the employer committed an intentional tort. Since the Court had to view the case in a light most favorable to the employer, the employer only had to show that none of the elements of the immunity exception existed. The Court conceded that even if they accepted the worker’s version of the installation, the employer would only be grossly negligent and not liable for an intentional act.

Workers’ compensation benefits are determined by a calculation that factors in the worker’s impairment rating, the regular wage of the worker at the time of the accident, and the cost of medical care and related costs, among other things. Benefits are calculated with statutorily-created multipliers, and may be capped at 104 weeks. The amount of compensation can differ greatly depending on whether the worker is deemed temporarily disabled or permanently disabled.

A personal injury claim of the same or similar matter will likely calculate the same types of costs like medical care and lost wages. However, unlike worker’s compensation, the negligent party may also have to pay for pain and suffering or punitive damages, depending on the level of egregious behavior.

American Contract Workers Facing Increased Dangers

Published on: January 8, 2013 | by Friedman Rodman Frank & Estrada, P.A.

Last month, the Pentagon released a report regarding the war in Afghanistan that revealed bleak statistics – Improvised Explosive Device (IED) attacks have increased 56% since 2009, insider attacks are used with higher frequency, and 18,188 have been injured and 2,162 killed since the beginning of the war. At the end of December, an American contractor was killed at Kabul police headquarters by an inside attack, and a car bomb exploded near an American base killing 3 people and injuring civilians.

Federal law requires all U.S. government contractors and subcontractors to secure workers’ compensation insurance for their employees working overseas. The Defense Base Act (DBA) provides disability, medical, and death benefits to covered employees injured or killed in the course of employment. If you have been injured overseas, or have lost a family member employed as a contractor, and need assistance filing a claim, contact a DBA lawyer at Friedman, Rodman, & Frank, P.A. Our experienced South Florida attorneys will work to get the compensation you need during your time of hardship.

Obtaining money from a Defense Base Act insurer is not always simple and straightforward. In the recent decision from the 1st Circuit Court of Appeals, Terri Truczinskas v. Office of Workers’ Comp.Programs, et al., the widow of a contract worker was denied benefits under DBA after her husband’s death. She argued that his death resulted from working at a job that was in a “special zone of danger” in Saudi Arabia. While the DBA provides a statutory presumption in favor of the claimant receiving coverage, the presumption can be rebutted by the insurance company. In this case, the insurance company relied on evidence of suicide to overcome the presumption and deny her claim.

The widow attempted to show that the denial of the claim was unreasonable by countering with allegations that her husband could have been killed by conservative Muslims vigilantes who were offended by his cross-dressing or extra-marital affair, that he was killed by Saudis he investigated as a possible threat, or that a co-worker killed her husband after he uncovered arms smuggling. The Review Board and the Court of Appeals both thought that she did not provide enough evidence to outweigh the insurance company’s rebuttal that his actions leading to his death were outside the coverage provided.

Ultimately, to be satisfied that her husband’s death was covered by his DBA-mandated insurance, the widow needed to show that his death occurred a result of his employment in the “special zone of danger” in Saudi Arabia. She did not have to show that his death was a direct result of the danger, but that it was present. All that is required by the courts is that the “obligation or condition” of employment creates the “special zone of danger” out of which the injury arose. (See Self v. Hanson, 305 F.2d 699, 1962.)