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: 66
The claimant was injured in a workplace accident and was paid workers' compensation benefits. Medical care was provided. Medical service providers attempted to collect from the injured worker the amounts of the bills for medical services rather than pursuing a claim agains the carrier. The claimant filed a civil cause of action against the medical service providers pursuant to Section 559.77(1), F.S., the Florida Consumer Collection Practices Act (FCCPA). The court dismissed this cause of action since the workers' compensation statute grants exclusive jurisdiction over any matter concerning reimbursement to the Florida Department of Financial Services and therefore, this cause of action under the FCCPA was precluded. On appeal, these dismissals were reversed and the court held that the claimant's assertion of liabilty under Section 559.77(1), F.S., was not precluded. The allegations of the claimant's complaint asserted violations of the FCCPA, Section 559.72(9), F.S., for attempting to collect an illegitimate debt and Section 559.72(5), F.S., for disclosing false information to a collection agency. This determination was made based upon several factors utilized by courts in the interpretation of statutes. Reference to this opinion should be made for a discussion of these factors.
The court certified to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v): Does Section 440.13(11)(c) of the Florida Workers' Compensation Law preclude circuit court jurisdiction over claims under Section 559.77(1) of the Florida Consumer Collection Practices Act?
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Employer paid workers' compensation benefits to employees injured in auto accident and sought recovery against third party tortfeasor for recoupment of such benefits paid. Default judgment entered against third party tortfeasors. An ex parte hearing to determine the amount of damages owed to the employer by the third party tortfeasor was held and final judgment thereafter entered. On appeal, the court determined that the claim for unliquidated damages (workers' compensation benefits paid) should have been determined by an evidentiary hearing with notice to the third party tortfeasor rather than entered ex parte. Accordingly case remanded to the lower court for a hearing on the damages asserted following proper notice to the third party tortfeasor.
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JCC, in his order, referred to the employer/carrier's lien on proceeds of the claimant's settlement in third party action. The circuit judge is the jurisdictional forum for anydisputes regarding such a lien. Appellate court struck language in the JCC's order addressing the employer/carrier lien.
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Attorneys for injured worker failed to file third party action against manufacturer of paving machine that allegedly caused claimant’s injuries. Legal malpractice claim filed against claimant’s attorney for failure to timely pursue such third party action and the question in this case is whether the workers’ compensation carrier had a lien on any recovery for such legal malpractice cause of action in accordance with Section 440.39, Florida Statutes.
Employers and their workers’ compensation insurers have no common law right to subrogation of claims brought by injured employees against third party tortfeasors. The right of subrogation is recognized solely as a creature of statute. Court determined that the defendants in a legal malpractice action are not third party tortfeasors within the meaning of Section 440.39, F.S., and accordingly, the employer/carrier has not right of subrogation in such a claim. Court distinguished between medical malpractice claims where there is a right of lien by the employer/carrier that paid workers’ compensation benefits. A more appropriate comparison to a legal malpractice case is in a spoliation action where there is no right of lien recovery by the employer/carrier.
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In determining the employer/carrier’s entitlement to its pro rata share of settlement proceeds claimant/employee receives in third party action, interest on the amounts due to satisfy the workers’ compensation lien pursuant to Section 440.39(2), Florida Statutes, is not payable from the time the tortfeasor paid settlement sums to the worker/employee and the time that the court actually calculated the amount of the employer/carrier’s lien. This rule does not apply if during this period of time, the claimant/employee received interest. If the claimant/employee received interest on the sums held for this period of time, then the employer/carrier would be entitled to a pro rata share of the interest. If the claimant was not paid interest, then there is no lien right to interest.
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The workers’ compensation carrier’s lien in regard to third party actions filed by an injured worker has the objective of preventing double recoveries by injured workers who have recovered statutory benefits under the workers’ compensation law but also have claims against responsible parties for the injuries other than the employer. The workers’ compensation lien of the employer/carrier in such third party actions is capped at the claimant’s recovery in the third party action, net of attorney’s fees and costs incurred in the recovery of the third party claim. In determining the amount of the workers’ compensation lien, the controlling factor for evaluating such amount is the ratio of net recovery received by the claimant in the third party action to the full value of his damages. In this case, the trial court did not determine the full value of damages sustained by the claimant and case remanded with directions the lower court to do so. The attorneys representing the injured worker in the third party action are not required to pay over part of their agreed upon fees or disbursements toward the satisfaction of the workers’ compensation lien.
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Claimant filed third party claim. Workers’ compensation carrier knew of such third party claim but failed to file Notice of Payment of Compensation pursuant to Section 440.39(3)(a), Florida Statutes. Case was thereafter settled. Court determined that since the Notice of Payment of Compensation (constituting a lien on any judgment or settlement proceeds) was not filed until after the case was settled, the employer/carrier was precluded from asserting such a lien against third party tortfeasor. Case certified to Supreme Court since this opinion conflicted with an opinion from the 5th DCA. C & L Trucking v. Corbitt, 546 So. 2d 1185 (Fla. 5th DCA 1989).
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On motions for rehearing and certification 4th DCA certified to Florida Supreme Court the question as to whether a carrier has subrogation rights under Section 440.39(3)(a), Florida Statutes, where the employer was guilty of spoilation of evidence and was forced to pay the employees damages for such destruction of evidence.
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Court determined that circuit judge erred in refusing to allow workers’ compensation lien in third party case to apply to future medical benefits. Circuit court limited lien on future indemnity proceeds to an amount certain and court determined this to be error. A workers’ compensation lien applies not only to future indemnity but also medical benefits.
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Court interpreted Maryland law in determining amount of the workers' compensation lien in claimant's third party action. Since the court was interpreting foreign law, (the place where the contract of employment was entered into between the parties), the standard of appellate review is de novo. The issue in this case is whether non-economic damages (pain and suffering) should be excluded from the total amounts payable to an injured worker in determining the amount of the workers' compensation lien.
Court determined that Maryland law did not specifically address whether an insurance company or employer could base its lien on the entire amount an employee recovers from a third party suit or whether the award for pain and suffering should be subtracted from the total award prior to calculating the lien. Court determined that the amount of the lien should be calculated using the total award or settlement and the amounts received for pain and suffering should not be deducted. This is consistent with Florida law.
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Compensability of accident initially denied by
employer/carrier. JCC determined that accident was
compensable and employer/carrier appealed that
decision. Prior to resolution of the appeal, claimant
settled civil cause of action against third party
tortfeasor and sought to strike workers' compensation
carrier's Notice of Lien for Payment of Workers'
Compensation Benefits, (i.e., civil cause of action
settled prior to conclusion of appellate proceedings
determining compensability of workers' compensation
claim). Lower court entered final order determining
that the value of the workers' compensation lien was
zero since no workers' compensation benefits had been
paid.
Court determined that workers' compensation carrier
still had lien on any settlement or judgment in third
party action regardless of whether benefits had been
paid in first instance. Lower court should have
determined workers' compensation lien by determining
the ratio of the claimant's net tort recovery to the
full value of her claim as required by Section 440.39,
Florida Statutes. Once the workers' compensation
insurer files a Notice of Lien in a third party action,
it is entitled to obtain a judicial determination of
the net amount of the claimant's recovery against third
party tortfeasor and the ratio of net recovery to the
full value of the claimant's injuries. Dissenting
opinion.
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Workers' compensation benefits paid by employer/carrier
and thereafter injured worker filed civil cause of
action for legal malpractice in regards to an alleged
failure of his attorney to timely file a cause of
action against a third party tortfeasor.
Employer/carrier was aware of the legal malpractice
action but failed to file notice of payment of
compensation benefits as required by statute until
after settlement had been effectuated in civil cause of
action. Court determined that notice filed by
employer/carrier was untimely since such notice must be
filed before a judgment or settlement, not thereafter.
Untimely notice precluded employer/carrier's recovery
of a portion of benefits recovered in legal malpractice
action. Court did not decide whether there is a
workers' compensation lien in a legal malpractice
action, recognizing that there are two divergent lines
of cases concerning that issue.
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The JCC does not have authority to offset indemnity
benefits payable to the claimant based upon amounts
received by claimant in third party action. The court
indicated that an offset can be taken if a circuit
court determines the amount of the the claimant's third
party recovery that the employer/carrier is entitled to
pursuant to Section 440.39(3)(a), Florida Statutes,
(1991). Absent a stipulation both as to entitlement to
an offset and as to its amount, Section 440.39, Florida
Statutes (1991) contemplates a judicial determination
before a Judge of Compensation Claims can enter an
order authorizing an offset.
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Plaintiff/employer filed claim against insurance agency
for failure to procure workers' compensation coverage
for the employer's officers. Workers' compensation
claim filed by claimant (officer of employer) against
workers' compensation carrier and JCC ruled that there
was in fact coverage.
Insurance agency argued in summary judgment motion that
civil cause of action against agency was precluded by
JCC's finding that there was in fact coverage. Court
determined that insurance agency was not entitled to
invoke the Doctrine of Collateral Estoppel based on the
workers' compensation proceeding determining coverage
because the agency was not a party to that action nor
was it privy to the parties in that proceeding.
The agency also argued that because of the fact that
the plaintiff corporate officer had settled with the
workers' compensation carrier, the corporate officer
was estopped from arguing that there was no coverage
and pursuing a claim against the agency alleging no
coverage. Court determined that there was no estoppel
precluding the plaintiff/corporate officer's lawsuit
against agency. Corrected opinion 25 FLW D703A.
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Claimant injured in compensable accident and filed a
workers' compensation claim against employer.
Insurance agent of employer had failed to obtain proper
workers' compensation coverage and employer assigned to
claimant cause of action against agent. Agent found to
be liable for negligently failing to provide workers'
compensation coverage to employer and was required to
reimburse claimant for sums ordered to be due by JCC.
A subsequent order by JCC awarded additional benefits
to claimant and a second cause of action was filed
against agent for reimbursement of these expenses. The
question in this case was whether the subsequent award
could be pursued against insurance agent or whether
such a cause of action would be contrary to the rule
against splitting causes of action. This rule makes it
incumbent upon plaintiffs to raise all available claims
involved in the same circumstance in one action.
Court determined that subsequent cause of action did
not constitute the splitting of a cause of action in
violation of this rule. The claim against the agent
for the payment for the subsequent order of the JCC had
not accrued when the original award was made enforcing
the first order of JCC.
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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 establishing the net value of the amounts received
by an injured worker from a third party tortfeasor in
equitable distribution proceedings, only taxable costs
are to be deducted from the gross amount received by
the claimant in the third party action. It is improper
to offset the gross amount received by all costs
incurred by the injured employee in the third party
tort action rather than only taxable costs.
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Assignee of employer brought cause of action against
insurance agency for common law indemnity for failure
to obtain workers' compensation coverage even though
employer made application for coverage and submitted
the proper premium. The basis of the cause of action
against the agency was in part based upon an allegation
that there was a negligent failure to provide coverage
as requested. Agency sought to defend indemnity claim
based upon evidence that employer had been negligent in
allowing its prior workers' compensation policy to
lapse, thus precluding it from seeking common law
indemnity. Court determined that the facts surrounding
the prior lapse of coverage were irrelevant to the
claim asserted by the employer that the agency was
negligent in obtaining coverage. Dissenting opinion.
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Compensable accident occurred and Medicaid benefits
paid for medical expenses. In the claimant's
application for Medicaid assistance, he assigned to the
Agency for Health Care Administration (the agency) his
rights to third party insurance benefits. Claimant
thereafter settled his workers' compensation case
stipulating that the amount of the settlement did not
include any medical expenses that would be covered by
Medicaid. The agency did not participate nor was it
informed of the settlement negotiations. The agency
sought to satisfy its Medicaid lien from the claimant's
settlement proceeds, regardless of how the proceeds
were labeled.
In the original opinion of the court, it was determined
that Medicaid did not have a lien for services not paid
by Medicaid. That opinion was withdrawn and it was
determined in this opinion that the agency could
satisfy its lien from the settlement proceeds without
regard to any designations in the settlement agreement
by the settling parties. Florida's Medicaid Third
Party Liability Act sets forth a procedure specifically
governing the distribution of settlement proceeds in
such instances. Initially, prior to any settlement,
the agency must be given notice as well as a reasonable
opportunity to file its lien and satisfy its rights as
a lien holder. Following a settlement, the court must
segregate an amount sufficient to repay the agency and
order such payment to be paid directly to the agency.
Any term in a settlement agreement precluding
Medicaid's ability to assert its lien is void and
against public policy. Court determined that carrier
was deemed to be a "third party" in interpreting the
lien allowances for recoveries in third party actions.
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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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Injured employee settled with third party tortfeasor
and employer/carrier filed lien for workers'
compensation benefits paid. The amount of the lien of
the employer/carrier pursuant to Section 440.39,
Florida Statutes, is limited to the net recovery by the
injured employee after attorney's fees and costs have
been paid.
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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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Claimant obtained judgment from third party tortfeasor and workers' compensation carrier filed lien on judgment. Court determined that carrier had the right to obtain interest accrued on its pro-rata share of the third party judgment from the date of the judgment date of disbursement of the funds by the third party tortfeasor.
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JCC erred in assuming jurisdiction to resolve the parties' dispute over a third party tortfeasor lien. Section 440.39(3)(b), Florida Statutes, specifically provides that subject matter jurisdiction of that dispute rests with the circuit court.
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Sun Bank v. Jakubowski
583 So.2d 782, 16 Fla. L. Week. D2096, (Fla.App. 5 Dist., Aug 08, 1991)
1991-08-08
Third Party Actions
Employer/carrier filed lien in third party action four years after accrual of the third party cause of action. The question in this case is whether the statute of limitations had run. 5th DCA determined that there were no time limitations established by statute for the filing of the third party lien and therefore the lien should have been recognized by the court.
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Sibley v. Adjustco, Inc.
573 So.2d 353, 15 Fla. L. Week. D2959, (Fla.App. 2 Dist., Dec 07, 1990)
1990-12-07
Third Party Actions
Claimant alleged that carrier's adjuster edited a
statment given by the claimant which resulted in the
carrier denying the claim for benefits. The claimant
was ultimately determined to be compensable and
benefits were awarded. Claimant then sued carrier for
fraud and intentional infliction of emotional distress.
Court determined that circuit court did not have
jurisdiction to hear this claim without the
carrier's adjuster being criminally convicted
of fraud. Section 440.37, F.S., is controlling in
such causes of action and under this provision a
criminal adjudication of guilt is required.
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In death claim the only issue concerned the deceased employee's average weekly wage. Claimant's attorney sought to take deposition of fellow employees in order to assert a liability claim against employer. Appellate court determined that such depositions were not allowable. Statutory duty to cooperate with claimant in investigating and prosecuting claim against third party tortfeasor is not applicable in this case since the claim was not being sought against a third party but rather against the employer. Also testimony as to how accident occurred was not relevant to the issue of average weekly wage calculation. Rule 1.280(b)(1) Florida Rules of Civil Procedure states that discovery can be obtained only on non-privileged relevant information. Since how the accident occurred was not relevant to average weekly wage calculation discovery depositions not allowed. Dissenting opinion.
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Stipulation as to the net amount of recovery against a
third party tortfeasor is not tantamount to a
stipulation that the carrier is entitled to setoff the
entire net amount against its obligation to pay death
benefits. Carrier entitled to setoff pursuant to the
provisions of 440.39, F.S. Claimant, a truck driver,
stopped by the roadway to assist an accident victim who
had been involved in an automobile accident. During
the period of assistance he was struck by another
automobile causing his death. Court ruled this death
to be compensable as being within the course and scope
of the claimant's employment. The accident was
found compensable under the traveling employees
doctrine. Also, the claim was found compensable
because of the fact that the claimant was responding to
an emergency situation, i.e., positional risk doctrine.
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Workers' compensation received by plaintiff was an inadmissible collateral source in third party personal injury action.
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Employer/carrier initially controverted claim and PIP carrier paid for medical bills and lost time wages up to the maximum of $10 000.00 under the policy. Deputy commissioner ultimately found claim to be compensable. Claimant then filed against the employer/carrier seeking reimbursement for the amounts the PIP carrier paid in medical benefits alleging that had the employer/carrier initially paid compensation the PIP payments made for medical bills could have been used for lost time benefits. Court determined that claimant allowed credit for the PIP payments made for medical expenses. DC had jurisdiction to require this reimbursement to claimant for the amounts the PIP carrier paid for medical expenses.
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Carrier was allowed to assert its workers' compensation lien in third party action where the Florida Insurance Guaranty Association was the carrier for the third party tortfeasor. Court ruled that a workers' compensation lien filed in an action in which the injured employee sought recovery from the third party tortfeasor is not considered a subrogation claim and therefore is not precluded under the Florida Insurance Guaranty Association law. Had the carrier filed a direct action against the third party tortfeasor this would be classified as a subrogation claim and could not be sought against the Florida Insurance Guaranty Association.
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Third DCA ruled that there was no workers' compensation lien pursuant to the terms of Section 440.39 Florida Statutes in medical malpractice settlement. Appellate attorney's fees awarded to plaintiff's attorney pursuant to Section 57.105 Florida Statutes on the basis of an absence of a justiciable issue.
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Workers' compensation carrier does not have subrogation rights against claimant's recovery from third party tort feasor for injuries sustained in an accident occurring while claimant was not in the course of his employment.
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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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Adjustco, Inc. v. Lewis
491 So.2d 578, 11 Fla. L. Week. 1376, (Fla.App. 1 Dist., Jun 20, 1986)
1986-06-20
Third Party Actions
In third party action to determine the carrier's interest in the settlement proceeds received by workers' compensation claimant from third party tortfeasor, the parties stipulated into evidence a letter from the counsel for the third party tortfeasor explaining to claimant's attorney the basis upon which a settlement was offered. The court determined that the letter from the attorney for the third party tortfeasor constituted evidence of the comparative negligence of the claimant and the basis upon which the total value of a settlement was reduced when compared to what otherwise was payable.
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While claimant was receiving worker's compensation benefits he settled with third party tortfeasor. Worker's compensation carrier then sought subrogation against third party tortfeasor for the amount of benefits it had paid to claimant. Complaint dismissed and affirmed on appeal since carrier had not given third party tortfeasor written notice of its right to subrogation. Court required notice to be in writing.
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The employer/carrier cannot obtain back from a third party tort-feasor as a part of their workers' compensation lien benefits paid for rehabilitation services. Court determined that these payments are neither compensation nor medical as those terms are described under the Florida Workers' Compensation Act.
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Claimant suffered two accidents the second creating a cause of action against a third party tort-feasor. Benefits paid for both accidents by workers' compensation carrier and thereafter settlement was obtained from third party tort-feasor in relation to second accident. Circuit court reduced amount of lien on second accident taking the position that benefits paid by the employer/carrier related to first accident for which there was no lien. Court reversed on the grounds that the employee failed to carry his burden of establishing that the benefits paid were paid for for some other purpose.
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In determining the amount of recovery the claimant receives in third party case for calculating the workers' compensation lien, the court is not permitted to offset or prorate the value of pain and suffering or derivative claims from the net recovery received from a third party tortfeasor. The workers' compensation lien provisions as set forth in Section 440.39(3)(a) applies to both present and future benefits. The amount of reduction in benefits in the future is limited to the claimant's net recovery in the tort claim.
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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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Court ruled contrary to the cases of { Risk Management Services v. Scott 414 So.2d 220 Case_2038} and { Lee v. Risk Management Inc. 409 So.2d 1163 Case_2111} and held that where employee recovers less than full value of claim from tort-feasor due to comparative negligence or limits of insurance coverage and collectibility employer/carrier entitled only to recover prorata share of compensation benefits based on formula taking into account employee's attorney fees comparison of full value of claim and actual recovery and benefits paid or to be paid by employer. This case concerned Section 440.39(3)(a) F.S. (1979) and held that the National Ben Franklin Insurance Company v. Hall 340 So.2d 1269 formula was applicable even though statute changed since 1976.
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A trial court may not reduce a W/C carrier's lien below an amount equal to a prorata share of what the net 3rd party recovery is to the worker's full damages because the third party's liability is doubtful.
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Under both statutory and case law the burden of proof is on the employee to demonstrate that his recovery against the third party tort-feasor did not represent the full value of his damages. Court determined in this case that he did not meet that burden since the only evidence introduced was the testimony of the attorney for the third party defendant indicating that the amount of settlement was basically that which was agreed to between the parties.
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In third party action, court determined that employer/carrier was entitled to full recovery in third party claim. (Interpreting 1975 version of Section 440.39(3)(a), Florida Statutes. Claimant was passenger in automobile and recovered full amount of claim against third party tortfeasor since comparitive negligence was not an issue and the issue of insurance coverage on the part of the third party tortfeasor was not at issue. Lien not reduced because settlement was made in order to avoid the delay in claimant receiving settlement proceeds.
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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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W/C carrier is entitled to a certain percentage of the benefits paid to an injured employee unless the injured employee can show that he did not collect the full amount of his damages because of insurance coverage comparative negligence or lack of collectability from third party tort feasor. The burden is on the employee to show one of these elements. In this case the injured employee failed to show that he could not collect the full amount of damages from the third party tort feasor and accordingly employer/carrier was entitled to full percentage of benefits. Court also determined that the amount of recovery and the statutory provision that controls is the statute in effect at the time of the accident rather than at the time the law suit was filed against the third party tort feasor.
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This case arose under the 1975 amendment to 440.39(3)(a) F.S. At the time of this accident the W/C carrier had a lien for 50% of the benefits paid unless the injured employee could prove that he did not collect the full amount of the damages. It is the burden of the injured worker to prove that he did not collect the full amount of his damages and in this case the appellate court determined that the employee had failed to meet his burden.
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This case concerned the W/C provision for 100% recovery from the third party tort feasor by the W/C carrier unless it can be shown that the employee did not recover the full amount of his damages from the third party tort feasor because of insurance limitations collectability or comparative negligence. Court held 440.39(3)(a) to be constitutional and also determined that attorney fees to the employee were not awardable.
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The claimant suffered a work related and non-work related injury. In third party action, trial court combined the effects of both accidents in concluding that the claimant did not recover full damages for purposes in determining workers' compensation lien. Court determined that trial court erred in combining the effects of both injuries.
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The determination of the amount of an equitable distribution in third party claims rests with the sound discretion of the trial court. Court determined that the testimony of the attorney for the third party defendant and the claimant/plaintiff is sufficient to support the determination as to the full value of the case and the plaintiff's comparative negligence.
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Section 440.39(3)(a), Florida Statutes, (1977) requires that a workers' compensation Notice of Lien filed in a third party action must be reported. Even though the parties had notice of the employer's workers' compensation carrier's lien, the workers' compensation carrier failed to comply with the statute in regards to recording the lien and therefore, the workers' compensation carrier had no right to equitable distribution in regards to the payments made to the claimant in the third party action.
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General contractor was required to pay workers' compensation benefits to employee of subcontractor since subcontractor did not have workers'compensation coverage. Court determined that subcontractor was liable to general contractor for benefits general contractor was required to pay.
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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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Subrogation on the part of a workers' compensation carrier in the claimant's third party action is solely that as provided by statute. In this case, claimant filed third party claim and carrier filed Notice of Payment of Compensation. Thereafter, claimant voluntarily dismissed claim with prejudice against third party carrier. Insurance company asserted an independent claim objecting to the dismissal and sought to intervene in the cause of action. Court determined that there was no right of intervention and the carrier's ability to subrogate in third party claim by filing notice of lien was for the purpose of asserting a pro-rata share of the proceeds of any recovery that the claimant might have against the third party tortfeasor. The carrier had no right to object to the dismissal of the claim or have notice of the dismissal.
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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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It is an error to allow into evidence in a civil court proceeding the amount of the workers' compensation benefits received by the claimant.
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Where the right to file a lien is granted by statute and the lien is filed in compliance with the statute the court has no discretion to strike it. One who asserts an interest in the subject matter of litigation by filing such a lien thereby makes himself technically a party to the cause which will enable him to take an appeal from an interlocutory adverse ruling on the validity of the lien.
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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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In order for the workers' compensation carrier to collect payments made on a workers' compensation claim against a third party tortfeasor it must either intervene in any pending litigation filed by the injured worker or institute an independent cause of action in the second year following the accident. In this case the carrier did neither and therefore was precluded from seeking recovery from a third party tortfeasor. The third party action in this case was an estate proceeding resulting from the death of the employee.
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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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In assessing the full value of the damages sustained in determining the workers' compensation lien in claimant's third party action, the sworn testimony of the attorney forthe plaintiff and the attorney for the third party tortfeasor, as to the value of the case is competent evidence that should be considered by the trial court. Proceedings before the circuit judge in determining the amount of the workers' compensation lien as provided for in Section 440.39(3)(a) are similar to a jury trial and the trial judge must weigh the evidence just like a jury would and evaluate the case if he has evidence before him which will permit an evaluation.
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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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The employer/carrier's lien in third party cause of
action applies not only to past and future compensation
but also to past and future medical. Trial court erred
in excluding the lien on future medical benefits.
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