Cases
Workers' Compensation
Listed below is McConnaughhay, Coonrod, Pope, Weaver & Stern, P.A.'s workers' compensation case law database. The database dates back until 1971 and includes over 5500 workers' compensation court decisions.
To view the case summaries, select one of the general topics listed below.
Total Cases: 45
While in the employment of the employer, deceased
employee died as a result of an automobile accident
caused by an uninsured third party tortfeasor. Claim
filed against uninsured motorist coverage obtained by
employer and judgment entered with a finding that third
party tortfeasor was liable for the accident. At time
of judgment, death benefits under the Workers'
Compensation Act had been paid but not to the full
extent of the $100,000 payable under Section 440.16,
Florida Statutes. Plaintiff deceased employee's estate
took the position that the award in uninsured motorist
benefits should be reduced only by the amount of death
benefits paid as opposed to the full $100,000 that
would be payable in workers' compensation benefits.
Court determined, however, that the verdict should be
reduced by the amount of workers' compensation death
benefits paid and the present value of the workers'
compensation benefits payable in the future.
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Sections 440.20(7) and (9), Florida Statutes (1993)
provide for the award of penalties and interest on any
installment of compensation not paid within fourteen
days from the date when it is due. In this instance,
benefits were not timely paid and accordingly, the
JCC's award of penalties and interest affirmed.
Claimant recovered benefits from a third party
tortfeasor and it was determined that the workers'
compensation carrier had a 25% lien on past benefits
paid and future benefits payable. The employer/carrier
attempted to cap the claimant's workers' compensation
benefits and other disability compensation at the
claimant's average weekly wage level pursuant to
Escambia County Sheriff's Department v. Grice, 692
So.2d 896 (Fla. 1997). Court determined that Grice
offset would be calculated after the 25% lien reduction
was made. In other words, the Grice offset would not
first be applied and then the 25% lien reduction taken.
The lien reduction would be taken before the Grice
offset is taken. Question certified to Florida Supreme
Court.
Court determined that Grice offset cannot be applied
retroactively.
Court declined to consider employer/carrier's issue
concerning entitlement to attorney fees and costs
because the issue was not ripe for appeal. The JCC
reserved jurisdiction to determine the amount of the
attorney fee.
Question considered by court was the amount or cap that
an employer/carrier can receive in reducing workers'
compensation benefits payable to the claimant in
satisfaction of its third party lien pursuant to
Section 440.39(3)(a). Employer/carrier argued that
they were entitled to receive in offsets sums equal to
the net amount received by the claimant in the
third party action. Court rejected this argument and
determined that the cap for employer/carrier recovery
in the third party action was the percentage of
recovery of the net proceeds received by the claimant.
Court determined that workers' compensation carrier's
lien was 25%. Claimant netted approximately $60,000 in
the third party action after attorney fees and costs
were deducted. Court determined that the cap of the
workers' compensation lien was 25% of the $60,000 net
received as opposed to the $60,000 net amount received
by the claimant in the third party action. Question
certified to Florida Supreme Court.
Claimant's disability pension plan provided that the
employer was allowed to reduce disability pension
benefits payable by amounts of workers' compensation
benefits paid. Since such a provision in the
disability policy was in existence, the employer should
be required to pay full workers' compensation benefits
and thereafter apply any offset allowed under
the Grice decision against claimant's disability
retirement pension benefits. If no such provision
exists, the judge of compensation claims should
consider Section 440.21(1) and the claimant's prorata
contributions to the disability retirement plan in
determining any offset against workers' compensation
benefits.
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In third party action, court determined that
employer was entitled to a portion of the claimant's
third party recovery based upon equitable distribution.
Claimant is not entitled to interest on funds that were
not distributed to the claimant during pendency of the
proceedings to determine equitable distribution. There
is no provision in the workers' compensation law for
the award of interest in such equitable distribution
proceedings.
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Claimant injured in compensable automobile accident
when a tire on the vehicle in which he was driving blew
out causing severe injuries. Employer failed to
preserve tire for possible suit against manufacturer.
This cause of action brought by claimant against the
employer for spoilation of evidence. Employer defended
on exclusivity of remedy under the Workers'
Compensation Act.
The exclusive remedy defense is usually raised by a
Motion for Summary Judgment since this defense requires
the employer to bring forth facts from outside the four
corners of the Complaint. However, if this defense
appears on the face of the Complaint, then the defense
can be asserted by way of a Motion to Dismiss. In
appropriate cases, the employer may rely on Rule
1.110(d), Florida Rules of Civil Procedure, to assert
an exclusive remedy defense by way of a Motion to
Dismiss when the basis of the defense appears in the
Complaint. Court determined that exclusivity defense
raised by the employer appeared on the face of the
employee's Complaint and accordingly, this defense
could be considered in a Motion to Dismiss.
Under the provisions of Section 440.39(7), Florida
Statutes, there is a statutory duty on the part of the
employer to cooperate with an employee in investigating
and prosecuting claims against a third party
tortfeasor. The question in this case is whether this
provision creates a separate basis of liability for an
employer who would otherwise enjoy workers'
compensation immunity. Court ruled that employer is
required to preserve evidence especially where there
was a timely request for preservation made by the
claimant. The statutory enumeration of specific duties
such as production of documents and access to premises
must be read as a non-exclusive list of ways the
employer must cooperate with the employee in pursuing a
third party claim. Motion to Dismiss filed by
employer/carrier based on the exclusive remedy
provisions of the workers' compensation statute
properly denied.
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JCC ordered employer/carrier to produce machine that
had injured claimant. The purpose of the Motion to
Produce was to obtain information in order to pursue a
third party claim against the manufacturer of the
machine. Court determined that JCC had jurisdiction to
order the production of machine. Because Section
440.39(7), Florida Statutes, provides that the
employee, employer and carrier have a duty to cooperate
with each other in investigating and prosecuting claims
and potential claims against third party tortfeasors by
producing non-privileged documents and allowing
inspection of premises, the order compelling production
was affirmed. Claimant had filed no Request for
Assistance or Petition for Benefits. There was no
evidence in this instance that the claimant was
attempting to establish employer liability and tort.
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Allied-Signal, Inc. v. Fox
623 So.2d 1180 (Fla. 1993), 18 FLW S455, August 26, 1993 (Supreme Court)
1993-08-26
Third Party Actions
Where plaintiff, while within the course and scope of
his employment, was injured by defendant's product, it
was necessary to consider the percentage of liability
of the employer even though the employer was immune
from tort liability under the workers' compensation
law. See Fabre v. Marin.
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Section 440.39(7), Florida Statutes, requires the workers' compensation carrier to cooperate with the claimant in a potential third party claim. Claimant made a request of the workers' compensation carrier to preserve a ladder that he fell from for the purpose of a potential third party products liability claim. Court held that there is liability for the destruction of evidence when the holder of the evidence has a statutory duty to preserve it. There is nothing in the law that requires a carrier to preserve and produce evidence which was never in its possession. In this case, the ladder was never in the possession of the carrier and therefore, there could be no cause of action for failure to produce the ladder.
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Carrier may recover past and future benefits in third party equitable distribution proceedings up to the amount of the net settlement claimant received from third party.
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Arone v. Sherwood
561 So.2d 1269, 15 Fla. L. Week. D1429, (Fla.App. 4 Dist., May 23, 1990)
1990-05-23
Third Party Actions
Court determined that judge erred in awarding workers' compensation carrier benefits based upon the filing of its workers' compensation lien in the third party action. Trial court erred in failing to consider sworn testimony of employee's attorney when determining whether employee had failed to receive full value of damages because of limits of insurance coverage and collectability. There was other evidence presented which demonstrated that the full value of the damages in the third party action was not collected and therefore the workers' compensation carrier should have collected less than the full amount of their lien in the third party action.
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Workers' compensation received by plaintiff was an inadmissible collateral source in third party personal injury action.
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C & L Trucking v. Corbitt
546 So.2d 1185, 14 Fla. L. Week. 1837, (Fla.App. 5 Dist., Aug 03, 1989)
1989-08-03
Third Party Actions
Carrier failed to file notice of payment of compensation as required by statute in the third party action. The question in this case is whether the failure to file such a notice precludes recovery from the third party tortfeasor or precludes equitable distribution in the settlement proceeds received by the claimant. Court said in this case that the failure to file such a lien does not preclude recovery since the third party tortfeasor and the claimant had notice of the interest of the workers' compensation carrier. The failure of the claimant to notify the carrier of the filing of a lawsuit will operate to bar the plaintiff from raising a defense that the carrier failed to file the lien in the third party action.
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3rd DCA determined workers' compensation lien by comparing the net amount received by the claimant in the 3rd party action (i.e. settlement amount less attorney's fees and costs) to the gross value of the case. Following the opinion of the Supreme Court in the case of Nikula v. Michigan Mutual Insurance Company. 531 So. 2d 330 (Florida 1988) the court determined that the ratio of the net benefits received to the total value of the case times the amounts paid in workers' compensation benefits was the appropriate formula for determining the workers' compensation carrier's recovery in the third party action.
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Tufco, Inc. v. Jernigan
533 So.2d 325, 13 Fla. L. Week. 2477, (Fla.App. 1 Dist., Nov 10, 1988)
1988-11-10
Third Party Actions
Court determined that there was no error in allowing the carrier to recoup its lien on future medical benefits by deducting a pro-rata share of benefits from payments made to the healtcare provider in the future.
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Court determined that employer/carrier's lien in third party action amounted to the ratio between the amount of the settlement and the true value of the case. This formula was used as opposed to determining employer/carrier's lien based upon the percentage of the comparative negligence of the claimant. For post 1983 injuries the amount to be received by the employer/carrier would be the amount of the settlement less the claimant's costs in pursuing the third party claim as compared to the overall settlement value of the case.
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Court interpreted settlement agreement of workers' compensation lien in third party action and determined that employer/carrier was not entitled to reduction of future medical benefits in the form of attendant care. Apparently an agreement was reached between the employer/carrier and the claimant as to employer/carrier's amount of lien but court interpreted this not to include future medical for attendant care. Settlement agreements of liens are interpreted liberally in favor of the beneficiary of workers' compensation benefits.
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In deciding conflict between districts the Supreme Court determined that a workers' compensation lien may properly be assessed against settlement proceeds of a medical malpractice claim.
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Dearing v. Reese
519 So.2d 761, 13 Fla. L. Week. 408, (Fla.App. 1 Dist., Feb 10, 1988)
1988-02-10
Third Party Actions
Defenses of assumption of risk and comparative
negligence are barred if the employer fails to obtain
workers' compensation insurance. In negligence action
against employer without workers' compensation coverage
claimant filed action against employer for failure to
provide a safe place to work. The issue of negligence
in this instance was an issue of fact for the jury to
determine and court ruled that it was error for
directed verdict to be entered in favor of employer
when there was some evidence of negligence.
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Court determined the amount of the employer/carrier's lien in third party action filed by claimant pursuant to Section 440.39 (1983) Florida Statutes. This statutory change provided for the pro-rata sharing of attorney's fees and costs by the employer/carrier. In determining how much the lien should be reduced from the 100% sum you take the ratio or percentage of attorney's fees and costs to the gross settlement or judgment. Added to this amount is the percentage of comparitive negligence or reduction in amounts received by the employee because of limitations of third party insurance coverage. You then multiply those combined percentages times past benefits paid. For future benefits the employer/carrier is permitted to reduce future benefits by this same percentage up to the net recovery received by the injured employee.
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Workers' compensation carrier does not have lien on payments made to children (beneficiaries) of deceased employee when workers' compensation award made solely on behalf of deceased employee's widow.Supreme Court interpreting Section 440.39(3)(a) Florida Statutes (1981) determined that workers' compensation carrier's lien in third party action should not be reduced by attorney's fees and costs incurred by claimant in obtaining settlement against third party tortfeasor. Statutory change.
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Section 440.11(1) Florida Statutes is unconstitutional to the extent that it operates to immunize an employer from liability to a third party where the employer contracted to indemnify the third party against liability for injuries to its employees.
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Urbanak v. Hinde
497 So.2d 276, 11 Fla. L. Week. 2124, (Fla.App. 3 Dist., Oct 07, 1986)
1986-10-07
Third Party Actions
Collateral benefits received by an injured individual cannot be introduced in a trial to reduce an award to the individual who was filing a claim. The only exception to this statutory rule is the receipt of workers' compensation benefits, i.e., the receipt of workers' compensation benefits can be used to reduce a recovery made by an injured individual in a circuit court cause of action. Federal Employee Compensation Act benefits were deemed to be workers' compensation benefits under this collateral source rule. The receipt of workers' compensation benefits was not restricted to Florida workers' compensation as described in Chapter 440, Florida Statutes.
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The formula for determining the employer/carrier's third party lien as provided in the case of National Ben Franklin Ins. Co. v. Hall 240 So.2d 1269 was abrogated by the 1977 changes in the Florida Workers' Compensation Act. For purposes of determining the employer/carrier's lien the 1983 changes in the Workers' Compensation Act are not applied retroactively. This case concerned an accident which occurred after the 1977 changes in the statute but before the 1983 changes.In determining the employer/carrier's lien in third party action the claimant's spouse's consortium claim is not separated from the amount recovered by the claimant in establishing the employer/carrier's prorata equitable distribution of claimant's recovery. Likewise the carrier's prorata recovery is not to be reduced by reason of the pain and suffering recovery by the plaintiff/claimant.
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Employer/carrier is entitled to recover 100% of the benefits it paid under the Workers' Compensation Act from a claim that the injured employee has against a third party. However this sum can be reduced if the claimant does not collect from the third party 100% of his or her damages because of comparative negligence or limits of liability or collectibility. The 100% amount cannot be reduced because of the third party tort-feasor's questionable liability. Likewise there is no provision under the workers' compensation statute for allowing an offset or reduction in the amounts recoverable by the employer/carrier because of the employee's pain or suffering or any loss of consortium claim.Injured claimant settled with third party tort-feasor under circumstances wherein liability of third party tort-feasor was questionable. Court ruled that employer/carrier was still entitled to receive 100% of the benefits paid from the settlement. The workers' compensation lien can only be reduced below the 100% amount in cases where the claimant does not receive full recovery from the third party because of comparative negligence or limits of insurance coverage and collectibility. A reduction in the amounts received by the claimant because of questionable liability of the third party cannot be grounds for reducing the workers' compensation lien.
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Ferraro v. Marr
467 So.2d 809, 10 Fla. L. Week. 1077, (Fla.App. 2 Dist., Apr 24, 1985)
1985-04-24
Third Party Actions
When an employee receives workers' compensation
benefits as a result of consciously prosecuting a
workers' compensation claim he cannot later sue his
employer in a civil action alleging he was not in the
course and scope of his employment at the time of his
accident. The mere filing of a workers' compensation
claim does not preclude an injured employee from
pursuing common law remedies. However an employee who
filed a workers' compensation claim for injuries caused
by an accident and who receives compensation payments
is deemed to have elected his remedy so as to preclude
the prosecution of a later suit in which he alleges
that his injuries did not result from an accident but
rather from the willful and wanton negligence of his
employer in failing to provide a safe place for him to
work. In this case the injured worker consciously
filed a claim for workers' compensation benefits and
received them. Thereafter he was precluded in
asserting that a co-employee was guilty of willful and
wanton conduct for which benefits could be obtained in
a common law action.An employee who files a workers'
compensation claim for injuries caused by an accident
and who receives compensation payment has elected his
remedy so as to preclude the prosecution of a later
suit in which he alleged that his injuries did not
result from an accident which arose out of and in the
course of his employment. A passive acceptance of
workers' compensation benefits does not prevent the
employee from contending in a common law action against
his employer that his injury occurred outside the scope
of his employment. This case involved a claimant
consciously filing a claim for workers' compensation
benefits and collecting payment. The court ruled that
he was thereafter precluded from filing a cause of
action against a co-employee since a co-employee has
the same exclusive remedy rights that an employer has.
The question of whether the plaintiff elected his
remedy or was estopped in taking an inconsistent
position is a question of law to be decided by the
court.
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Claimant injured in compensable accident and before
filing for workers' compensation benefits settled with
the third party tort-feasor. At time of settlement no
workers' compensation benefits had been paid.
Thereafter claim for workers' compensation benefits
made. Workers' compensation carrier/employer sought
equitable distribution from third party tort-feasor or
claimant for amount of workers' compensation benefits
paid claiming that by settling with the third party
tort-feasor the third party claim by the carrier had
been precluded. Court ruled that workers' compensation
carrier's lien was barred since claimant had settled
with tort-feasor. Also there was no right of claim for
equitable distribution against claimant or third party
absent fraud.
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In circuit court action claimant's attorney was successful in negotiating with W/C carrier to waive lien carrier had filed. Court determined that deputy commissioner does not have the authority to award an attorney's fee for claimant's attorney's efforts in assisting claimant in circuit court action. Citing the case of { Ohio Casualty Group v. Parrish 350 So.2d 466 Case_2751} the court determined that an attorney's fee can be awarded to a successful claimant for appellate review of the trial court's order declining to modify the equitable distribution previously ordered.
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Court determined that expert witness was not needed in valuing case before circuit court in order to determine if claimant recovered all of his damages from third party tort-feasor. Judge acts just like a jury in evaluating the value of the case.
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Kimbrell v. Paige
448 So.2d 1009, (Fla., Apr 05, 1984)
1984-04-05
Third Party Actions
In second year following compensable accident workers' compensation carrier notified employee of third party action and thereafter filed suit against third party tort-feasor. Court determined that injured employee could not file separate cause of action against tort-feasor after employer/carrier filed.
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The employer's right to recovery in third party claims is 100% (1981) of the benefits paid unless there is comparative negligence or a limitation on the extent of insurance coverage or recoverability of the third party tort-feasor. There is no basis under the statute for reducing the amount of the lien further by deducting sums received by the injured worker for pain and suffering and the derivative claim of the wife. A contrary result was found in the case of Orange County v. Sealy 412 So.2d 25. {\i Referenced case not in WCR database}Supreme Court opinion which held that the workers' compensation lien set out in subsection 440.39(3)(a) F.S. applies to both present and future benefits. The Supreme Court followed the First District Court of Appeal in the case of Risk Management Services Inc. v. McCraney 420 So.2d 374 in regard to the statutory compensation lien on future benefits. Under that opinion the workers' compensation carrier has a present lien on the net tort recovery for benefits it had paid reduced to the extent that the claimant failed to recover the full value of damages from the third party tort-feasor because of comparative negligence or limits of liability and collectibility. In addition to this present lien the carrier also has a lien on any future benefits which is to be reduced by the percentage that the claimant did not obtain a full recovery from the tort-feasor. The carrier must "recommence payment of full benefits if and when the sum of the amounts recovered and retained pursuant to its lien equals the claimant's net recovery on the tort claim." The net amount obtained by the claimant from the third party tort-feasor is the sum of the settlement or judgment less attorney's fees and costs.This case dealt with the extent of a workers' compensation insurer's lien on the proceeds of a third party settlement when that settlement is less than full value of the claim because of the claimant's comparative negligence. In particular this case dealt with the amount and duration of the adjustment to future workers' compensation benefits. In regard to future benefits payable and the cap on the amount that can be obtained by the employer/carrier the Supreme Court ruled that the maximum amount recoverable is the net proceeds received by the injured employee after attorney's fees and costs have been deducted. The net proceeds recovered are not reduced by the comparative negligence of the injured employee thereby reducing the cap further.
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Hume v. Thomason
440 So.2d 441, (Fla.App. 1 Dist., Oct 21, 1983)
1983-10-21
Third Party Actions
Employee injured while employed by employer who had no insurance coverage. Pursuant to Section 440.11(1) F.S. he elected to file a cause of action in circuit court alleging that employer failed to provide a safe place for him to work. Summary final judgment in circuit court entered in favor of defendant employer and employee sought recovery under the Workers' Compensation Act. Court determined that claimant had "elected his remedy" by filing in circuit court and accordingly was precluded from filing for the same injury under the Workers' Compensation Act. An election of remedies is matured when the rights of the parties have been materially affected to the advantage of one or the disadvantage of another. Court determined that the election in this case had matured when judgment was entered in the circuit court finally adjudicating the rights of the parties.
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Kreitz v. Thomas
422 So.2d 1051, (Fla.App. 4 Dist., Dec 01, 1982)
1982-12-01
Third Party Actions
Case remanded for new trial because trial court erred in admitting into evidence in civil cause of action statements of payments received from workers' compensation as a collateral source. This was contrary to Section 627.7372(3)(1981), Florida Statutes.
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Kimbrell v. Paige
422 So.2d 902, (Fla.App. 4 Dist., Sep 22, 1982)
1982-09-22
Third Party Actions
An injured employee who has received W/C cannot sue the third party tort-feasor for the first time after the passage of three years where the compensation carrier has in the second year following the accident given the thirty day notice and filed an appropriate lawsuit against the third party tort-feasor. Section 440.39 comtemplates only one lawsuit being filed against the third party tort-feasor. Issue certified to supreme court.Question certified to Supreme Court whether injured employee can sue third party tortfeasor when W/C carrier sued tort-feasor in 2nd year. See also { Kimbrell v. Paige 4th DCA Case_1455}
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Attorney's fees are not awarded to the claimant's attorney in equitable distribution proceedings relating to a third party recovery by the plaintiff/claimant.
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Grossman v. Beard
410 So.2d 175, (Fla.App. 2 Dist., Jan 13, 1982)
1982-01-13
Third Party Actions
Court determined that it was an error to introduce in third party claim filed by injured worker the fact that he had received workers' compensation benefits. Defendant in third party claim sought to introduce workers' compensation information in the third party claim for the purpose of showing that psychiatric treatment would not help where the injured employee himself was not paying for such care. Court deemed the introduction of such evidence error.
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The question in this case is whether a release given by an employee to a third party tort feasor bars a later suit against the tort feasor by the W/C carrier who had no notice of the settlement and release yet was forced to pay benefits to the employee after the settlement. Ordinarily in the case where the employee has settled with a third party tort feasor the W/C is relegated to getting an equitable distribution of the proceeds received from the tort feasor by the employee. However if the tort feasor knew when he settled the action that the employer was within the scope of his duty and the W/C carrier would soon enter the picture then the tort feasor might be equitably estopped from claiming the release on a defense. See this case for factors to determine the fairness of a settlement.
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Cook v. Eney
277 So.2d 848, (Fla.App. 3 Dist., May 01, 1973)
1973-05-01
Third Party Actions
Court determined that it was error to allow defendant in third party action to cross examine claimant/plaintiff on the claimant's receipt of workers' compensation benefits. Defendant's assertion that such cross examination was for impeachment purposes only was rejected by court. {\i(Statutory change)}
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The issue in this case is whether settlement by the injured employee without notice to the carrier injured by a third party tort feasor bars suit in the second year by the employer to an equitable distribution of the settlement. The rights of the employee and employer are concurrent in filing suit against the third party. In this case the employee settled with the third party in the second year without notifying the employer/carrier and before the employer/carrier filed an action against the third party. Court held that the employee did not have to notify the employer/carrier of the settlement and therefore the carrier could only get an equitable settlement (rather than the full amount it had paid) of the proceeds of the settlement. Although notice is not required the lack of notice might effect the determination of the fairness of the settlement. i.e. the employer might have expended funds in the second year suit or the employee and the third party might have acted in bad faith to cut off the claim of the carrier. Also the court can consider whether the carrier's participation in the settlement might have increased the settlement amount. Statutory change.
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Court determined that there is no workers' compensation lien in medical malpractice action. Supreme Court reversed decision. The filing of a workers' compensation lien in a medical malpractice case was allowed by the court in accordance with the Supreme Court opinion of { Liberty Mutual Insurance Company v. Chambersv\b\cf14 Case_631}
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Claimant paid workers' compensation benefits and employer recovered lien against third party tort-feasor. Therefore in workers' compensation proceedings court allowed employer/carrier credit for prior workers' compensation benefits paid. The credit allowed for prior workers' compensation benefits paid would not be offset by the amount of the third party lien recovery.
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It is error to allow the introduction into evidence in a civil trial the fact that the plaintiff is receiving workers' compensation benefits since such information presumably influences the jury against the plaintiff.
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The question before the Supreme Court in this case is whether settlement proceeds from a workers' compensation case are considered marital property to be divided between spouses or are they the sole property of the injured employee. The court adopted the "analytical approach" in making this determination. The portion of the settlement award representing past lost wages and loss of earning capacity and past medical expenses paid from marital funds is considered marital property. The portion of the settlement representing future loss of earnings and loss of earning capacity and future medical expenses are the separate property of the injured spouse. The calculation of past and future loss of wages and earning capacity as well as past and future medical expenses is governed by the when the marriage ended.
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F.S. 440.39 abolished the election of remedies doctrine making it possible for injured employer to claim workmen's compensation benefits and at the same time institute suit against a third party tort-feasor.
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When an employee is injured on the job by third person the employee may collect under workmen's compensation and at the same time pursue his remedy against the third party tort feasor. If the employee doesn't sue in the first year after the injury then the carrier has a right to sue the third party to recover what was paid under workmen's compensation. If the carrier didn't file suit in the second year the right to file an action against the third party reverts back to the employee. Once the carrier files suit in the second year the employee is required to cooperate with the suit. F.S. 440.39(4)(a).When an employee is injured on the job by third person the employee may collect under workmen's compensation and at the same time pursue his remedy against the third party tort feasor. If the employee doesn't sue in the first year after the injury then the carrier has a right to sue the third party to recover what was paid under workmen's compensation. If the carrier didn't file suit in the second year the right to file an action against the third party reverts back to the employee. Once the carrier files suit in the second year the employee is required to cooperate with the suit. F.S. 440.39(4)(a).
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Whenever the purpose of a diagnostic test is to determine the cause of a claimant's symptoms and which symptoms may be related to a compensable accident, the cost ofthe diagnostic test is compensable, even if it should later be determined that the claimant suffered from both compensable and non-compensable conditions. The diagnostic testing which is recommended by an authorized physician is implicitly authorized. Once an injured employee establishes a satisfactory physician-patient relationship with an authorized physician, the employer/carrier may not deauthorize that physician without the employee's prior agreement or without the approval of the JCC. When the employer/carrier deauthorizes claimant's first treating physician without authorizing alternative medical care, even when a claimant requests such care, claimant is justified in seeking medical care from a physician of her own choice. In this case, the employer/carrier deauthorized treating doctor Claimant injured in work related accident and sued third party tortfeasor, recovering a settlement. Medical care was provided and the employer/carrier, pursuant to theworkers' compensation statute, paid the provider's bill based upon the maximum reimbursement allowance as provided for in the workers' compensation statute. Provider sought to recover the difference between the total bill and the amount allowed under the reimbursement schedule from the claimant or from the proceeds received in the third party settlement. Court determined that the health care provider may not recover a fee in excess of the statutory maximum reimbursement allowance from the employee or from his settlement proceeds.
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Third party tortfeasor not allowed a collateral source
offset pursuant to Section 768.76(1), Florida Statutes,
for benefits received by the injured employee under the
Florida Workers' Compensation Act. Such offset is not
allowed due to the statutory subrogation right which
permits under Section 440.39(2), Florida Statutes, the
workers' compensation carrier to subrograte against the
third party tortfeasor for workers' compensation
benefits paid. In this instance, the workers'
compensation carrier chose not to pursue its
subrogation interest. Even though employer/carrier
chose not to invoke its subrogation rights, there still
could not be a collateral source offset. It is the
existence of the right of subrogation, not the exercise
of such right, which prevents the third party
tortfeasor from being entitled to a collateral source
offset.
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