Sometimes a third party’s carelessness may cause an employee to be hurt or killed while on the job in Florida. A “third party” is someone other than the workers employer.
If a third party’s negligence caused your injury, you will likely receive workers compensation benefits. In the case of your death, your dependents may accept compensation under the workers compensation law.
You may also have a personal injury case against the third party. You can immediately start your personal injury case against the third-party tortfeasors. Florida Statute 440.39.
You do not have to wait until the workers compensation case if finished. A tortfeasor is someone who is careless.
Florida workers compensation benefits are generally outside the scope of this article. I don’t talk about whether you can also sue your employer for personal injury.
Work Comp Doctors Make the Personal Injury Case Tougher
If you are injured while working in Florida, you should use your workers compensation benefits. In order to get these benefits you should immediately notify your employer about the accident.
Your employer may have workers compensation insurance. If so, they will send you to doctors whom they choose. You do have a right to hire a Florida workers compensation lawyer.
The workers compensation insurer’s goal is to get you back to work as soon as possible. The workers compensation insurer will pay you less if you get back to work quickly.
The doctors know this. Many injuries are in the gray area. This means that two doctors can be within their ethical bounds and have two totally different opinions as to the permanency of your injury.
They can also have totally different opinions as to your future need for medical treatment, and whether you are fit to return to work.
A workers compensation insurer has to pay you more money as the extent of your disability increases. The workers compensation insurer saves money if the doctor says that your injury is temporary.
Conservative vs. Liberal doctors
The workers compensation insurer is very likely to send you to a conservative doctor. It saves them money.
Conservative doctors are more likely to:
- Not relate your injury to the accident
- Minimize the extent of a work injury
- Say that your injury is not permanent
- Minimize the length of your treatment
- Say that you are well enough to work again
- Hurt your personal injury case
On other hand, liberal doctors are more likely to:
- Say that the work accident caused your injury
- Maximize the extent of your injury
- Say that your injury is permanent
- Maximize your duration of your medical treatment
- Give you more time off work
- Help your personal injury case
Conservative doctors decrease the full value of a personal injury case. Liberal doctors increase the full value of a case.
Let me give you an example of how a conservative workers compensation doctor hurts a Florida personal injury case. This is one of my many Florida accident settlements.
Example – Conservative Doctor
Miguel was driving a truck. A 18 wheeler truck driver hit Miguel’s truck in the rear. 911 was called.
A highway patrol trooper came to the scene. An ambulance was not called to the scene. Miguel immediately reported the crash to his employer, a large South Florida trucking company.
Miguel had a little pain in his shoulder and neck. His employer set up a workers compensation claim.
They referred him to a workers compensation orthopedic doctor in Miami. This doctor often testifies for the defense in Florida workers comp and personal injury cases.
He is not one of the Florida orthopedic doctors who I recommend for Florida injury cases. This doctor saw Miguel several times for his shoulder pain.
His pain did not resolve after a few months. The doctor ordered an MRI.
The MRI showed a labrum tear. Miguel’s shoulder pain did not improve. The doctor recommended arthroscopic surgery.
The doctor wanted to look inside Miguel’s shoulder and see the problem. He wanted to fix any issues that were causing Miguel pain.
The doctor operated on Miguel’s shoulder. Miguel’s employer’s work comp insurer paid for all of these medical bills.
Miguel wanted to see if he could make a personal injury claim against the other truck driver. He hired me.
I wanted a written report wherein the shoulder surgeon said that the truck wreck caused Miguel’s labral tear and need for surgery. Prior to paying the orthopedic surgeon for this report, I called to see if he related the tear to the crash.
He also said that when he went into Miguel’s shoulder, he did not see a tear. He just saw labral fraying, which he said is from overuse.
What really shocked me was that he also said that any shoulder injury that Miguel had should have gone away after 4-6 weeks. I was confused as to how he could bill workers compensation for months after the end of this 4-6 week period of treatment, and then not relate the shoulder tear to the crash.
When a doctor bills workers compensation, he has to check a box which states that the treatment is (or is not) related to the accident. He checked that the treatment was related.
However, after practicing personal injury law for almost twelve years, I become less and less surprised with conservative doctors’ opinions. I see the same defenses over and over.
I told Miguel to get a second opinion from a more liberal orthopedic doctor. He did so. This orthopedic surgeon said that he saw a labral tear on the MRI.
He stated, in writing, that the truck crash caused the tear. Many doctors charge for these reports. They may cost around $500 to $750 sometimes.
It may be well worth the cost. Either way, you need to know what your doctor will testify to.
I quickly sent this opinion to Broadspire. They were the third party administrator (TPA) for the responsible truck company’s insurer. Travelers Insurance Company insured the trucking company.
You can see how two doctors had totally different opinions. The difference is that one was being paid by a workers compensation insurer. He wants more business.
In order to get more clients, he needs to be conservative. If this workers compensation doctor gives more liberal opinions, the insurer will stop sending him claimants (business).
I settled this case for $210,000.
Tip: Progressive insured my client with uninsured motorist (UM) coverage. The other trucking company was self-insured for the first $250,000.
I argued to Progressive that the since the other driver was self-insured, under Florida law he is “uninsured”. Progressive disputed this.
I filed a civil remedy notice of insurer violation. That got Progressive to rethink its position. They eventually paid me the $10,000 UM limits.
How the Workers Compensation Lien Affects a Florida Injury Case
In order to recover damages in a Florida personal injury case, the victim must show that the responsible party’s negligence caused his or her injury. One of the many recoverable damages are medical bills and lost wages.
In Florida, you can recover the medical bills and lost wages that the other party’s carelessness caused. If a workers compensation insurer pays these medical bills and lost wages, they have a right of subrogation (to a certain extent).
This means that they usually (but not always) have a right to recover, at least some of, the amount that they paid for these bills and lost wages.
A workers compensation insurer does not have a right of subrogation against a uninsured motorist liability settlement.
Under F.S. 627.727(1), uninsured motorist coverage shall be “over and above, but shall not duplicate, the benefits available to an insured under any workers’ compensation law, personal injury protection (PIP) benefits, disability benefits law, or similar law.”
Example – Workers Comp does not have lien on UM Coverage
Mike* is driving a police car in Miami-Dade County, Florida. He is responding to an emergency for work.
Another car blows a stop sign. They collide. The other car is at fault.
Mike breaks his wrist. He has surgery on his wrist. He makes a claim against the other driver.
GEICO insures the other driver. I handled this case. GEICO paid us $125,000 to settle his personal injury case.
Mike could have been insured under an auto policy with uninsured motorist (UM) coverage. If true, and his case was worth more than the responsible party’s bodily injury limits, he could have made a UM claim.
If Mike settled with the UM liability insurer, his workers compensation insurer would not have a claim against the UM settlement. (*Not my actual client’s name.)
Example
Let’s use the same facts from the first example, Miguel’s case. In that case, the workers compensation insurer paid about $90,000 in medical bills and lost wages.
The workers compensation insurer claimed a $90,000 lien against Miguel’s settlement. Under Florida law, if Miguel can prove that the other driver’s carelessness caused his injury, he can recover this lien ($90,000) from the responsible party.
The carrier is entitled to recover this lien minus attorney’s fees and costs. Other factors can also reduce this lien.
Workers Compensation Results in Lower Medical Expenses
The great thing about Florida workers compensation is that it may pay all of your medical bills. This assumes that they authorize all of your medical treatment.
A workers compensation may deny some of your treatment as being unrelated and/or unnecessary. Workers compensation may pay medical bills at an amount below that which is considered reasonable and customary.
This results in a smaller recovery for medical expenses, which decreases the personal injury cases’ full value.
If you do not have health insurance, your out of pocket medical expenses will be higher. In turn, your recovery from the third party may also be higher.
Workers Compensation Employer and Insurer Have a Duty to Cooperate
Florida Statute 440.39(7) says that the workers compensation employer and carrier have a duty to cooperate with you in investigating and prosecuting claims and potential claims against third-party tortfeasors.
They can meet the duty to cooperate by giving you nonprivileged documents and allowing inspection of the premises. They only have to do these things to the extent necessary for the purpose.
Example – Employers duty to cooperate
You are working as a bagger at Publix Supermarkets in Miami, Florida. You are in the parking lot collecting shopping carts. A driver of a car is not paying attention.
He crashes into you. Since you were on the clock, Publix should pay you workers compensation benefits. You also have a personal injury claim against the car driver and/or owner. You may also have a claim against many other parties.
Publix has a duty to cooperate with you. Publix should give you the surveillance video which shows how the accident happened. Perhaps it shows the driver on his cell phone.
His cell phone use may help increase the value of your personal injury case against him. You may also be entitled to punitive damages against that driver.
If Publix, the workers compensation insurer, fails to cooperate you can use this as a factor in getting their lien reduced. This can result in a big savings to the you in the third party claim.
Florida Motor Vehicle Accidents – Using PIP
In most Florida motor vehicle accident cases, an injured person qualifies for Personal Injury Protection (PIP) benefits. There are exceptions when the victim does not qualify for PIP such as when the injured victim was on a motorcycle or on a public bus.
In addition, if you are hurt while in a taxi, the taxi may not have PIP coverage so there is a chance that you do not get it.
Sometimes nonresident pedestrians who are hurt in a Florida motor vehicle accident do not qualify for PIP.
If a third party’s carelessness caused your injury while you were working, you should first negotiate the workers compensation down to as little as possible.
Then use PIP coverage to pay the workers compensation lien. This assumes that you are covered by PIP.
The PIP insurer may argue to you that PIP does not have to pay a workers compensation lien. I have had State Farm argue this to me.
If the PIP insurer will not pay the workers compensation lien, ask them to give you (in writing) a reasonable explanation as to why. Ask to speak with a supervisor.
You can also file a civil remedy notice of insurer violation against them. You can also file a consumer complaint. If they still refuse, you can sue them.
In my experience, they usually will fold and pay the workers compensation lien.
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