If you are an employee and you are injured at work, you may be entitled to workers’ compensation. However, if you are an independent contractor, you are most likely not eligible for workers’ compensation. Construction workers have different rules as to eligibility. Contact our Tampa Workers’ Compensation Lawyers for more information.
Eligibility for Workers’ Compensation
Florida Statutes defines an employee as someone who receives compensation from an employer under contract for hire, appointment, or apprenticeship. This includes minors and aliens. Officers of a corporation are also considered employees for workers’ compensation purposes.
Anyone being paid by a construction contractor and is labeled a subcontractor is considered an employee for workers’ compensation purposes. A subcontractor may elect an exemption or obtain his or her own workers’ compensation policy, and only then is the subcontractor not considered an employee of the contractor. Additionally, an independent contractor who works in the construction industry is also considered an employee, as is a sole proprietor in the construction industry.
When You Are Not Considered an Employee
If you are not an employee, you will need to obtain your own workers’ compensation policy if you wish to be covered. Florida does not consider you as an employee in these circumstances:
- You are an independent contractor and are not in the construction industry. An independent contractor has a separate business with his or her own vehicles, tools, facilities and materials. You should have your own federal employer identification number unless you are a sole proprietor and not required to have the same. Your compensation is paid to a business name and not you personally. And, you have a bank account in the name of your business. Additionally, the person you are working for cannot ban you from working for other companies. Also, if you receive compensation on a competitive-bid basis or based on the completion of a task, you may be an independent contractor. You do not need to meet all six criteria to be considered an independent contractor.
- You are a real estate licensee. You must agree in writing to be paid by commission only.
- You are an orchestra, band, theater or are a disk jockey and you sign a written contract that you are being paid as an independent contractor.
- You are an owner-operator of a motor vehicle and you use that vehicle to transport property under a written contract with another motor carrier.
- You are a volunteer.
Consequences to Employers
If an employer does not have a workers’ compensation policy, it cannot put forth the following defenses against paying compensation, according to Florida Statute 440.06:
- The negligence of a fellow servant;
- That the employee assumed the risk; or
- That the injury was partially or fully the employee’s fault.
Coverage and Exceptions
Florida Statutes outlines the conditions when an employer must cover an employee for a workplace accident. For the initial injury, the employer must provide workers’ compensation if the injury or death is compensable and is in the scope of employment. If additional injuries come to light, the original injury must be the major contributing factor in order for workers’ compensation to cover additional injuries. If the injury is an occupational disease, sufficient exposure and causation must be proven for workers’ compensation to cover it. Only medical evidence is acceptable for proof of the major contributing cause.
If you have a preexisting condition that causes the work injury to heal slower or require more treatment, the employer is only liable for benefits if the workplace injury is more than 50 percent responsible for the extra complications caused by the preexisting injury. You will need medical evidence to prove this.
If the employee suffers from a hernia and the employee dies because of the surgery to repair the hernia, the death will be attributed to the workplace accident that caused the hernia. Thus, workers’ compensation is responsible for compensation regarding the death.
If your employer sends you out of state for work and you have a workplace accident, you will be able to collect workers’ compensation in Florida, as long as the contract for employment was made in Florida or the employer’s principal place of business is in Florida.
When Benefits Are Not Payable
Under certain circumstances, workers’ compensation benefits are not payable. If you are covered by the following acts, you are not entitled to benefits:
- Federal Employer’s Liability Act;
- Longshoremen’s and Harbor Workers Compensation Act;
- Defense Base Act; and
- The Jones Act.
- Additionally, certain actions may preclude you from receiving benefits or may cause you to receive decreased benefits, including:
- If you were drunk at the time of the accident;
- If you were under the influence of drugs, barbiturates or other stimulates that were not prescribed to you by a doctor at the time of the accident;
- If you willfully tried to kill yourself or another person;
- If you knowingly committed any of the acts listed in Florida Statutes §440.105;
- If you knowingly committed a criminal act so that you could get workers’ compensation;
- If you knowingly refused to observe safety rules or use safety equipment, your benefits could be reduced by 25 percent; or
- If you are a professional athlete, benefits may be reduced by any injury benefits or wages that you may be entitled to while you are disabled if the employer provides same or if you are under a contract for hire or a collective bargaining agreement.
Workers’ Compensation versus Filing a Lawsuit
You cannot file a lawsuit and file for workers’ compensation at the same time. You can do one or the other. The benefits of filing for workers’ compensation is that you’ll get benefits sooner rather than later. However, those benefits are severely limited. If your employer was grossly negligent, you would not be able to collect punitive damages if you file a workers’ compensation claim. While you must file a workers’ compensation case in most instances, you may be able to file a lawsuit directly if:
- Your injuries were caused by a defective product and you are able to sue the product manufacturer in a products liability lawsuit;
- Your condition or injuries were caused by a toxic substance, you may be able to bring a lawsuit against the manufacturer of the substance;
- Your employer intentionally caused the injuries, you may be able to sue your employer;
- A third party caused the injuries. You may be able to sue the third party; and
- Your employer does not have workers’ compensation, you may be able to sue the employer in civil court.
- If you decide to file a lawsuit instead, it will take longer to receive compensation. However, you could get more compensation and you have the ability to ask for punitive damages. Before you attempt to file a workers’ compensation claim on your own, discuss your options with a workers’ compensation attorney so that you are fully apprised of your rights and the possible outcomes of both avenues.
Types of Injuries
Injuries could vary depending on the industry you are in. They could range from minor to catastrophic. If you have an underlying condition, such as diabetes, that causes an injury to heal slower, advise your attorney of this. If you are entitled to future medical costs, the attorney will be able to better estimate the cost of care if he or she knows that recovery could be delayed because of an underlying condition. Injuries may include:
- Bruises, scratches, cuts, and abrasions: While these heal rather quickly, they may take longer if you have a condition that slows healing, such as diabetes. If open cuts, scrapes, and abrasions get infected, you may need care for a longer period of time.
- Strains, sprains and pulled muscles: These types of injuries take a few weeks to heal unless you need surgery, such as in a muscle that is pulled or torn off the bone.
- Broken bones: You may have a fracture or a compound fracture—a fracture that breaks the skin. These injuries generally take 6 to 8 weeks or longer to heal, barring underlying conditions.
- Head and brain injuries: If you hit your head, you could suffer brain injuries that could be long-term or permanent.
- Spinal cord injuries: This, along with a brain injury, is usually catastrophic. In some cases, you may never heal from a spinal cord or back injury, including suffering from paralysis. You might sustain injuries such as these if you are not provided with safety equipment or if safety equipment is not well-maintained.
- Internal injuries: You may also suffer from internal bleeding and other internal injuries that could be catastrophic and will usually require surgery. If you damage an organ, it may need to be replaced or removed, which could lead to long-term medical care.
- Lung, eye and skin injuries: If you are exposed to chemicals, you could suffer from eye, lung and skin injuries, including chemical burns. These injuries could turn into long-term or permanent injuries. Injuries from chemicals may also show up years later.
- Explosion injuries: If something at a construction or other work site explodes, you could suffer from burns, injuries from flying debris or even injuries from the concussion of the blast. Some of these injuries may occur even if you are some distance away from the explosion.
Damages Available When You File a Lawsuit
If you are able to and choose to file a lawsuit instead of workers’ compensation, you may be entitled to economic damages, non-economic damages and/or punitive damages.
Special damages, or economic damages, are those for which a firm financial basis exists and include:
- Lost wages: If you are unable to work because of the injuries you suffered on the job, you may be entitled to lost wages. Under the workers’ compensation program, you get about 2/3 of your weekly pay.
- Future lost wages: If your injuries are long-term or permanent, you may be entitled to lost wages for the amount of time you are unable to work. If you are able to go back to work, but cannot work in the same job and must take a lower paying job, you may be entitled to partial lost wages for the difference in your income.
- Medical costs: Any medical costs, including prescriptions, that are directly related to the injuries you suffered at the workplace may be reimbursed.
- Future medical costs: Injuries that take a long time to heal or that never heal, such as catastrophic brain injuries or spinal cord injuries, may require long-term care, including therapy. You may be entitled to compensation for this additional care, but it will be an estimated amount. Because the amount is estimated and some preexisting conditions may cause injuries to heal slowly, be sure to tell your attorney about these conditions.
- Property reimbursement: If any of your personal property was damaged in the incident that caused your injuries you may be eligible to receive compensation for repairs or for replacement.
Non-economic damages are those that do not have a readily quantifiable “price” set for them, and include:
- Pain and suffering: You may be entitled to compensation for pain and suffering if the pain from your injuries is long-term or permanent.
- Inconvenience: Because your injuries are an inconvenience and may prevent you from doing chores around the house, you may be compensated for your inconvenience.
- Loss of companionship: If your injuries prevent you from doing normal activities with your family, you may be compensated for loss of companionship.
- Loss of consortium: If you are unable to have a physical relationship with your spouse, you may be compensated for loss of consortium.
Punitive damages are only awarded when the defendant’s actions or inactions were grossly negligent or were intentionally harmful. In a workers’ compensation case where the employer’s actions or inactions caused you injury, you could be entitled to punitive damages, which are awarded to punish and/or deter the defendant for or from such behavior in the future.
Tampa Workers’ Compensation FAQ
More than 191,000 employees work in Tampa, and for virtually all of those jobs, there are occupational risks involved. What happens when an employee suffers an injury on the job? Most of the time, they file for and collect workers’ compensation benefits. While these benefits are useful to workers, the process of obtaining them can be complex. Here are some answers to the questions our workers’ compensation clients often ask us.
What is workers’ compensation?
Workers’ compensation is a type of insurance policy that most employers in Florida are required to provide for their workers. The insurance policy covers medical treatments and other benefits for individuals who are injured on the job or suffer a job-related illness.
Those employers required to provide workers’ compensation include:
- Those outside of the construction industry who employ four or more employees either part time or full time.
- Those in the construction industry who employ at least one person, including the business’ owner.
- State or local government agencies.
- Farmers who employ more than 5 regular employees or at least 12 seasonal agricultural workers for at least 30 days each year.
Some employers are not required to participate in the state workers’ compensation program, as they are covered by federal programs.
Employees who are not covered by Florida workers’ compensation laws include:
- Federal employees;
- Harbor workers;
- Railroad employees; and
- Defense contractors.
What injuries qualify me for workers’ compensation benefits?
Any injury or illness that occurs at the workplace or is caused by workplace conditions and requires medical treatment and/or results in missed time from work qualifies for coverage, provided there is no reason to believe that the workers’ compensation claim was filed fraudulently, the employee did not cause the injury as a result of intoxication or drug impairment on the job, or the employee did not intentionally cause the injury to collect benefits.
What are the most common ways workplace injuries occur?
According to the National Safety Council, a U.S. worker is injured on the job every seven seconds. This equates to 510 workplace injuries every hour, and around 4,600,000 each year.
Some of the most common ways that workplace injuries occur include:
- Overexertion, which accounts for more than 33 percent of all workplace injuries in the U.S. and occurs when a worker attempts to lift something that is too heavy, or a worker engages in repetitive movements for many hours a day.
- Contact with objects or equipment, which accounts for slightly more than a quarter of all workplace injuries and includes being struck by an object or equipment at a job site, being caught in or compressed by equipment, or being caught or crushed beneath collapsing equipment or structures.
- Slips, trips, and falls, which also account for around a quarter of all workplace injuries and can include falls to a lower level of a building, as well as falls occurring on the same level.
What benefits does workers’ compensation provide to injured workers?
The benefits provided by workers’ compensation in Florida include:
- Medical benefits, including treatment of injury and illness. Eligible medical expenses include doctor’s appointments, hospitalization, physical therapy, diagnostic tests, prescription drugs, prostheses, other medical equipment, and personal care. Mileage reimbursement for travel to and from medical appointments can also be provided.
- Lost wages and related compensation. The amount of benefits available to an employee after a workplace injury depends on the severity of the injury. If the employee suffers a temporary total disability, they cannot work and are entitled to two-thirds (66 percent) of their regular wages up to the state maximum reimbursable amount. The employee may receive this amount for up to six months, depending on the severity of the injury. A temporary partial disability means that the injured employee can work but their duties are restricted while they recover from the injury. If they cannot earn 80 percent of their regular wages during the time that they are partially disabled, they may qualify for compensation. Impairment benefits are available to those who have reached maximum medical improvement (MMI). At the time when MMI is attained, the injured employee’s doctor assigns an impairment rating, which determines what benefits are available to the employee under the program. Permanent total disability benefits are available if, after reaching MMI, the employee still cannot work at all.
- Death benefits for family members of a deceased worker. This type of compensation covers up to $7,500 in funeral expenses, compensation for dependents, and education for the deceased’s spouse.
Workers injured in Florida also are entitled to free information and assistance in finding jobs they can do in spite of their disability.
How long do I have to report my injury to my employer?
You should report your injury as soon as possible, but must do so no later than 30 days after the date of the injury to ensure that your claim is not denied due to a lack of timely reporting. Once you have reported your injury to your employer, they have seven days to report the injury to the insurance company that provides their workers’ compensation policy.
What do I do if my employer refuses to report my injury to the insurance company?
Call us, and we can help you report your injury to the insurance company.
Can I choose the doctor who provides medical treatment for my work-related accident?
No. You must use a doctor who is authorized by your employer or their insurance company to treat you. If your injury requires a visit to the emergency department, you must let the treating provider know that your injury occurred on the job and supply that provider with the name and contact information of your employer and their insurance carrier.
Who provides workers’ compensation for employees working for a subcontractor on a construction site?
The subcontractor is required to provide workers’ compensation for their employees, and the construction company that has hired the subcontractor is responsible for ensuring that this coverage is provided. If the contractor fails to ensure that the subcontractor carries workers’ compensation coverage, the contractor becomes responsible for the payment of benefits.
I received a medical bill from the hospital for my work-related injury. What should I do?
If you receive a bill for services related to your workplace injury, you should notify your employer’s workers’ compensation insurance carrier or contact the state Division of Workers’ Compensation at (800)-342-1741 or (850)-413-1610. We can help you do that.
My spouse died in an accident while they were on the job. Is there compensation available for my family?
Yes, family members may file a claim for compensation related to their loved one’s workplace death within one year of the death or within five years of continuous disability that results in death to claim death benefits such as funeral expenses, compensation for dependents, and educational benefits for spouses.
Does my employer have to hold my job for me while I am recovering?
No, your employer is not legally required to hold a job for you while you are recovering. If your employer fills your position while you are out or you cannot return to the type of work you performed previously, you may be eligible for reemployment services such as vocational counseling, transferable skills analysis, job-seeking skills, job placement, on-the-job training, and formal retraining. You can find out more information about these services by calling us, or by contacting the Department of Financial Services, Division of Workers’ Compensation, Bureau of Employee Assistance and Ombudsman Office at (800) 342-1741 option 4, or by email to [email protected].
How long does it take to start receiving benefits checks?
If your claim is approved, your first benefits check will likely arrive within three weeks after you file your initial report with your employer.
Can I get fired for filing a workers’ compensation claim?
No. Florida law prohibits employers from firing or retaliating against an employee for filing or attempting to file a workers’ compensation claim. If your employer does this, give us a call.
Are workers’ compensation benefits taxable?
No, your workers’ compensation benefits are not taxable. However, if you are on partial disability, meaning you can still perform some job-related tasks, the wages you receive for the hours you work are taxable.
Why are some workers’ compensation claims denied?
There are several reasons why a workers’ compensation claim may be denied. Some of the more common reasons include:
- The injured worker failed to report the injury or illness to their employer within 30 days.
- The injured worker did not seek medical treatment, or obtained medical treatment from a provider who was not authorized by their employer or their employer’s workers’ compensation insurance carrier.
- The insurance company has reason to believe that the injury did not occur on the job or that the injured worker had a pre-existing condition.
- The injured worker was impaired by alcohol or drugs at the time of the accident. A blood test is generally performed after a workplace injury to ensure that impairment was not involved.
- The information the injured worker provided in their claim does not match the information provided in their medical records.
- The injured worker’s employer disputes the claim.
- The employer or their insurance company believes the worker intentionally caused their workplace injury.
I am a first responder suffering from job-related PTSD. Can I collect benefits?
Yes. Florida’s workers’ compensation program provides benefits to first responders suffering from job-related PTSD. To claim these benefits, you must be either a law enforcement officer, firefighter, emergency medical technician, or paramedic employed by the state or a local government.
Some of the qualifying events that make a first responder eligible for this compensation include:
- Witnessing the death of a minor or seeing a deceased minor.
- Witnessing an injury to a minor that resulted in death before the child arrived at the emergency medical department.
- Participating in the medical treatment of a minor who subsequently died before arriving at the emergency medical department.
- Manually transporting an injured minor who subsequently died before arriving at the emergency medical department.
- Seeing a decedent whose death involved grievous bodily harm.
- Witnessing a death, including a suicide, that involved grievous bodily harm.
- Directly witnessing a homicide.
- Directly witnessing an injury, including a suicide, in which the person died before arriving at the emergency medical department.
To obtain first responder benefits for PTSD through workers’ compensation, you must have a diagnosis of post traumatic stress disorder and you must report this diagnosis to your employer within one year of the qualifying event.
My own error on the job resulted in my injury. Can I still obtain benefits?
As long as your injury was not intentional, you should receive compensation through a workers’ compensation claim regardless of who was at fault.
Would it be easier just to file a personal injury lawsuit against my employer?
Job-related injuries are typically compensated through workers’ compensation, not through personal injury lawsuits. What this means is that workers usually are prohibited from suing their employers for on-the-job injuries—though you may need to sue your workers’ comp insurance to get it to pay the benefits you deserve.
However, if your work-related injury was caused by a third party that is not your employer or a co-worker, you may recover damages in a personal injury lawsuit against the third party—for example, if you were injured in a car accident that was caused by another driver while performing normal driving duties as required for employment.
Additionally, in the event worker’s compensation benefits are insufficient to address the full scope of your injury, a claim against the employer for the remainder may be an option.
How can an attorney help me with my workers’ compensation claim?
Workers’ compensation claims can be complex. If your claim is denied or the benefits seem low in light of the severity of your injuries, an attorney can provide you with information about state workers’ compensation laws and the appeals process. Your attorney will ensure that your appeal is filed properly and through the right channel, and will be available to represent you and provide guidance throughout the process.
If you have been injured on the job, contact Sibley Dolman Gipe Accident Injury Lawyers, PA and Sibley Dolman at (833) 552-7274 (833-55-CRASH) to schedule a free consultation.