Frequently Asked Questions Relating to Florida’s Workers’ Compensation Law
1. Is my employer required to have workers’ compensation insurance?
Every employer in the State of Florida who employs four or more employees, part-time or full-time, is required to comply with the provision of the workers’ compensation law. The definition of an “employee” is any person engaged in employment under an appointment or contract of hire, express or implied, oral or written. This includes minors and aliens, whether lawfully or unlawfully employed. However, it does not include independent contractors. If an employer fails to have compensation insurance as required by the workers’ compensation Law, a penalty not to exceed $5,000.00 for each employee of that employer may be assessed against the employer.
The workers’ compensation Law is designed to have the employer pay compensation and/or furnish benefits if the employee suffers “an accidental injury or death arising out of work performed in the course and the scope of employment.” However, it is important to understand what is an “accidental” and how “arising out of” is interpreted under the workers’ compensation Law.
In order to be compensable, the injury to the employee must be “accidental.” Accident is defined as “only an unexpected or unusual event or result that happens suddenly.” A mental or nervous injury due to stress, fright or excitement only, with no physical injury, is not an accident. There are some injuries that although they do not occur suddenly are still compensable under the Law. These include, but are not limited to, exposure and repeated trauma cases and occupational disease cases.
Once an accident is established, the injured employee must prove that the injury arose out of his or her employment. The injured employee must establish that the work performed in the course and scope of employment is the major contributing cause of the injury or death. If the injury was a result of a pre-existing condition, there may be no recovery. The employer/carrier has the burden of proving the existence of such a pre-existing condition.
3. What are my responsibilities when I am injured on the job?
You should report the accident immediately to your supervisor in order to ensure there is no delay in receiving the benefits you are entitled to under the workers’ compensation Law. Your employer has the duty to complete a First Report of Injury or Illness and file it with the Division of workers’ compensation. You should request to be provided with a copy of this document.
Additionally, you should also request to be provided with authorized medical treatment through your employer or it’s workers’ compensation carrier.
4. Can I sue my employer for my work-related injury?
If the employer provides workers’ compensation benefits to the injured employee, the employer is only responsible for those benefits set forth in the workers’ compensation Law. These would include limited compensation for disability and medically necessary medical expenses.
An injured employee may not sue his employer if the injured worker has received workers’ compensation benefits. In Florida, workers’ compensation is an exclusive remedy and questions as to negligence and fault is irrelevant. An employer may not be entitled to this immunity if the injury was caused by gross negligence.
5. Do I have to pay any of my medical costs?
No. If you receive a bill from an authorized physician you should send it to your employer’s insurance carrier. Your employer must furnish medically necessary remedial treatment, care, and attendance required by the injury. If you were injured on or after 01/01/1994, you must pay a $10 co-payment per visit for treatment after you reach overall maximum medical improvement as determined by your physician.
6. Can my employer fire me if I am unable to work because of an injury and receiving workers’ compensation benefits?
By law, you cannot be fired for filing or attempting to file a workers’ compensation claim. However, the law does not require your employer to hold your position for you until you are able to return to work.
7. Can the insurance carrier deny my work-related injury?
The workers’ compensation Law clearly states that compensation is not payable if the injury was caused primarily by the intoxication of the employee or by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician. Under the law, the employer may require the employee to submit to a test for the presence of any or all drugs or alcohol in his or her system. If the injured worker refuses to submit to a drug test, it shall be presumed in the absence of clear and convincing evidence to the contrary that the injury was caused primarily by the influence of drugs or alcohol.
Compensation is also not available if injury results from the willful intention of the employee to injure or kill himself, herself, or another.
Workers’ compensation benefits can be reduced by 25% if the employee fails or refuses to use safety appliances provided by the employer.
Recreational and social activities are not compensable unless such recreational or social activities are an expressly required incident of employment and produce a substantial direct benefit to the employer beyond improvement in employee health and morale that is common to all kinds of recreation and social life.
An injury suffered while going to or coming from work is not an injury arising out of and in the course of employment whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.
An employee who is injured while deviating from the course of his employment (horseplay), including leaving the employer’s premises, is not eligible for benefits unless the employer expressly approves such deviation.
In case an employee becomes an inmate of a public institution, then no compensation shall be payable unless he has dependents.
8. What if my employer refuses to provide me with a authorized physician or complete a First Report of Injury or Illness?
Contact the Division of workers’ compensation at 1-800-342-1741 and advise them of your employer’s failure to comply. Should no action occur, contact an attorney who specializes in workers’ compensation law.
9. If my injury causes me to lose time from work, will I be paid for the wages I lose?
Your employer’s insurance carrier is not obligated to pay for the first 7 days of disability you lose from work unless your injury is severe enough that you lose more than 21 days from work. If the injury results in disability and time lost of more than 21 days, a portion of your lost wages (compensation) will be paid from the first day of the disability. You are entitled to compensation from your employer’s insurance carrier for time lost from work for days eight through 20.
10. When will I get my first check?
The earliest you can expect your check to be mailed is 14 days after your employer has knowledge of your accident and this can only happen if you report your injury to your employer immediately after the injury occurred. If your employer or your employer’s insurance carrier initially deny your right to compensation, a Notice of Denial Form DWC-12 must be filed by your employer (or employer’s insurance carrier) with the Division within 14 days after it has knowledge of the injury or death. A copy of the Notice of Denial will be sent to you within 14 days of your employer’s knowledge of your accident if your claim is being denied.
11. If I am unable to return to the type of work I did before I was injured, what can I do?
Florida workers’ compensation provides, at no cost to the injured worker, reemployment services to help injured workers return to work. Services include vocational counseling, transferable skills analysis, job seeking skills, job placement, on- the-job training, and formal retraining. To find out more about this program, please contact the Department of Education, Division of Vocational Rehabilitation, Bureau of Rehabilitation and Reemployment Services at (850) 488-3431
12. When should a claim be reported to the insurance carrier?
In the event of a medical only or lost time case (where the injured worker loses more than 7 days of work), the employer has 7 calendar days from his knowledge of the injury to submit the First Report of Injury or Illness Form DWC-1 to the insurance carrier. The carrier must submit the First Report of Injury or Illness to the Division on lost time cases within 14 days of the carrier’s receipt.
13. Can I choose my own doctor?
You may choose a physician from a list provided by your employer’s insurance carrier or managed care arrangement. If you go to a doctor not authorized by your employer or the insurance carrier, you may be responsible for payment of your medical bills.
14. If I am unable to return to work until my doctor releases me, does my employer have to hold my job for me?
If your employer has more than 50 employees, the law states that your employer is obligated to make available to you, within a 100 mile radius of your residence, work appropriate to your physical limitations within 30 days after the carrier notifies the employer of maximum medical improvement and the employee’s physical limitations, or face a penalty. If holding a job open for an injured worker creates a hardship, the employer may either hire a temporary person or hire someone else. The employer may want to contact his legal representative to ensure that he is not in violation of other applicable law, i.e. Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), etc. Employers with 50 or fewer employees are not obligated to rehire injured workers.
15. My employer will not report my injury. What can I do?
Within 7 calendar days after the employer’s actual knowledge of the injury, the employer must file the First Report of Injury or Illness Form DWC-1 to the carrier. If the employer refuses to complete the DWC-1, the injured worker should contact the Bureau of Compliance at (850)488-2333 to obtain information about the employer’s insurance carrier and then telephone the insurance carrier to report the injury over the telephone. Another option for you would be to call the Employee Assistance Office at 1-800-342-1741. Personnel at this toll-free number will intervene on your behalf.
16. How long after an accident do I have to report it to my employer?
An employee who suffers an injury arising out of and in the course of employment shall advise his employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under the workers’ compensation law, unless:
the employer or the employer’s agent had actual knowledge of the injury;
the cause of the injury could not be identified without a medical opinion and the injured worker advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;
the employer did not put its employees on notice of the requirements of the law by posting notice pursuant to Section 2002-Ch0440-Section 055″440.055, Florida Statutes
17. How long can I receive temporary total disability benefits?
In cases where the injured worker can do no work whatsoever for a temporary time period, 66-2/3 percent of his average weekly wage will be paid for a period not to exceed 104 weeks for dates of accident occurring on or after 01/01/1994.
18. Can I receive social security benefits and workers’ compensation benefits at the same time?
If you were injured before 01/01/1994 and you are receiving wage loss benefits and regular social security retirement benefits, your social security retirement benefits are primary. The total amount of your wage loss benefits and the social security benefits cannot exceed the amount of wage loss benefits which would otherwise be payable. Combined benefits cannot exceed 66-2/3 percent of the employee’s average weekly wage.
If you are receiving wage loss benefits and social security disability there is no offset.
If you are receiving a weekly benefit (i.e. permanent total disability, temporary total disability, or temporary partial disability) the two combined cannot exceed 80 percent of your average weekly wage.
Note: The offset does not apply after age 62.
Workers’ compensation benefits will not be payable for temporary total disability for any week in which the injured worker has received unemployment compensation. You must be medically unable to work to receive temporary total disability benefits. To receive unemployment compensation, you must be available and able to work. If the injured worker is entitled to temporary partial benefits, unemployment compensation could be due and would serve as the primary compensation. Additionally, the sum of the two benefits may not exceed the amount of the temporary partial benefits for which the injured worker is entitled.
20. Can I receive a settlement of my medical and indemnity benefits?
Settlements are not automatic in the state of Florida. The injured worker may have complete settlement/washout of medical and indemnity benefits. Settlement shall be allowed at any time in any case in which the employer or carrier has filed a written Notice of Denial Form DWC-12 within 120 days after the date of injury, and the judge of compensation claims finds a justifiable controversy as to legal or medical compensability of the claimed injury or the alleged accident. A Notice of Denial Form DWC-12 is not required for a washout under section 2002-Ch0440-Section 20″440.20(11)(b), Florida Statutes. The statute applies to all claims where the “Parties have not previously settled, regardless of the date of accident.”