When an agreement is reached between an injured worker and the employer/carrier to settle a Florida workers’ compensation claim, formal documents will have to be submitted to the judge setting forth the amount of the settlement, the attorney’s fees, and any child support owed by the injured worker. The documents must be submitted in order for the Judge to enter an order before any of the settlement funds will be disbursed to the injured worker. The requirements of the formal documents are set forth in the 60Q-6 Rules of Procedure for Workers’ Compensation Adjudication. When the injured worker has an attorney, the judge will not look at the facts of the case in relation to the amount of the settlement; He or she is only approving is the amount of the attorney’s fee and the amount of child support owed to be paid to the State Child Support Disbursement Unit, if any. This does not apply to settlements of an unrepresented injured worker.
The child support recovered through settlement of Florida workers’ compensation cases has exceeded 150 million over the last 14 fiscal years.
While this program serves an important public policy, the provisions can catch many injured workers off guard when settling their case.
How Child Support Arrears are Ascertained
An attorney representing an injured worker (or attorney representing the employer/carrier) can submit a Child Support Request on a case through the Judge’s office. The Judge’s office then returns a report detailing any amount owed to either the Department of Revenue or a Florida County Clerk’s office. The amount listed on the form is then used to calculate the child support that will be paid from the settlement.
How Much of a Settlement can be Paid to Child Support?
Typically, 50% of the claimant’s net recovery can be withheld from the settlement and sent directly to the appropriate agency by either the injured worker’s attorney or the attorney for the employer/carrier.
For example, if a case settles for $50,000 and the attorney’s fees and costs deducted are $10,000, up to $20,000 can be taken from the injured worker’s settlement to pay the child support arrears[assuming the claimant is in arrears for more than $20,000]. If the claimant is arrears for less than 20,000 or less than 50% of the net, the actual amount owed will be paid to the appropriate agency.
What if Child Support is Owed in Another State?
At the time of the settlement, a claimant must sign an affidavit stating he/she does not owe any support other than what is disclosed on the Report generated by the OJCC showing support owed in Florida.
Our Tampa workers’ compensation attorneys are dedicated to protecting the rights of Florida’s injured workers. If you have questions about any workers’ compensation matter, contact our office for a free consultation.]]>
“It is illegal for any person to “knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment” under the Workers’ Compensation Law. § 440.105(4)(b)1., Fla. Stat. (2013). And workers’ compensation benefits are barred for an employee found to have “knowingly or intentionally engaged in” such acts “for the purpose of securing workers’ compensation benefits.” § 440.09(4), Fla. Stat. (2013).
Determining that there has been a violation of section 440.105(4) requires a two-part inquiry, encompassing first a finding as to whether a false (or fraudulent or misleading) statement was made by the claimant, and second a finding as to whether, at the time the statement was made, it was made with the intent to obtain benefits. See Arreola v. Admin. Concepts, 17 So. 3d 792, 794 (Fla. 1st DCA 2009) (“In deciding this issue, the JCC had to answer two questions. The first is whether Claimant made or caused to be made false, fraudulent or misleading statements. The second is whether the statement was intended by Claimant to be for the purpose of obtaining benefits.”); see also Village Apartments v. Hernandez, 856 So. 2d 1140, 1142 (Fla. 1st DCA 2003) (“Regardless of whether the claimant was under oath, if, at the time he made any of these statements, he knew they were false . . . then the statements fall within the scope of section 440.105(4)(b)2.”)”
The first part of the two part analysis is fairly straight-forward–did the injured worker make a statement which was false? For example, if the injured worker states he/she has never had a prior back injury, but medical records establish a back injury five years ago–that is straight-forward, a false statement was made. The more difficult question to answer is, was it made for the purpose of securing workers’ compensation benefits, which the second part of the inquiry? The second part of the inquiry deals with whether the false statement or omission was made to secure workers’ compensation benefits. How is the second part evaluated? In Hillsborough Area Regional Transit v. Stuckey, OJCC Case no. 13-027186EHL, the judge stated “I then considered whether I could infer from claimant’s behavior that she had intentionally made any false, fraudulent or misleading oral or written statements or intentionally failed to reveal the existence of a prior left shoulder injury to anyone in order to obtain benefits under Chapter 440 in connection with the accident 12/7/09, or whether, instead, a reasonable person in claimant’s position would have failed to report a prior shoulder injury or condition.” In this case, the judge used a reasonable person standard. This standard is extremely fact specific to an individual case, and requires the judge to evaluate all the facts and surrounding circumstances. For example, if the statement at issue concerns treatment that was very minor, and a reasonable person could have failed to recall or mention it, that would lend to a determination the statement was not made for the purpose of securing workers’ compensation benefits. In another case involving this issue, a judge stated the following with regard to the second part inquiry:
“I accept his testimony that he simply did not remember any medical records containing back complaints and while back problems may appear in medical records, I accept the claimant’s testimony that he was never directly told that he had low back issues prior to January 20, 2015. While the claimant may be detail oriented in his work repairing automotive issues, I find that he is not a detail oriented person with his life in general. In his deposition, he did not recall how long he had been married or how long he had owned his home. In testimony before me regarding his past history, he did not dodge the questions but simply indicated under oath that he did not recall certain incidents. I do not find the claimant, in his presentation, to be so creative in order to weave a story of lies and deceit for the purpose of obtaining workers’ compensation benefits.” Crist v. Hillsborough County Sheriff’s Office, 16-005054SLR.
In another case, the JCC stated the following with regard to the second part inquiry: “The most important factor to consider in this determination is the overall veracity of the claimant. If it is determined that the claimant’s testimony, taken as a whole, is unreliable then it would be possible for the undersigned to infer that the claimant allowed omissions of information; generally avoided answering questions; and, inaccurately described important events for the purposes of enhancing his worker’s compensation claim.” Lively v. JVS Contracting, 15-010964EDS.
Given the gravity of an allegation of workers’ compensation fraud: forfeiting all benefits under the Workers’ Compensation Act and possible criminal charges/fines/restitution, I highly recommend an injured worker seek the advice of counsel regarding his/her case. If you have questions regarding workers’ compensation fraud, contact our office for a free consultation with a qualified Tampa workers’ compensation attorney.]]>
In McKeon v. Lee County School Board (OJCC#: 11-007145), the claimant was paid an annual, one-time non merit based payment during the 13 full weeks preceding the work injury. Below is the relevant facts of the case:
“The bonus was paid pursuant to a collective bargaining agreement. To be eligible for the bonus, Claimant had to be a full or part -time SPALC (Support Personnel Association of Lee County) employee, employed during the pay period of the bonus, and had been employed for at least one day more than half of the school year. The bonus was earned during the 2009 -2010 school year, which was from July 1, 2009 to June 30, 2010. The bonus did not increase Claimant’s base pay. There was no merit or performance component to the bonus.” The amount of the bonus depended on how many days an employee worked and the amount of money set aside by the employer in a fiscal year.
As a general rule, for an on the job injury to be covered under the Florida workers’ compensation act, it must (1) occur in the course and scope of employment and (2) “arise out of” the employment. One interesting scenario presents with lunch breaks and lunch time accidents.
You may ask: how does the law treat lunch time accidents? Can a person be in the course and scope of employment while they are on their lunch break? The answer is – maybe. Florida courts have held that lunch time accidents on the employer’s premises can be compensable[1]. However, when an employee with a fixed time and place of work leaves the premises for lunch, they are generally outside the course of their employment. However, this is not a hard and fast rule. An off premises lunch time accident may be compensable if the employee was going to conduct business at the lunch. “The operative principle which should be used to draw the line here is this: If the employer, in all the circumstances, including duration, shortness of the off-premises distance, and limitations on off-premises activity during the interval can be deemed to have retained authority over the employee, the off-premises injury may be found to be within the course of employment.”[2] This is most apparent in a working lunch or lunch where the subject to be discussed is work-related.
Similarly, employer condoned breaks off premises may also be compensable. If you examine the case of Mr. Krider. Mr. Krider left his employer’s premises to purchase cigarettes at a convenience store located across the street. He was hit by a car while crossing the street. It occurred during work hours. He had no regularly scheduled breaks, but rather was allowed to attend to his personal comfort during lulls in the employment. Employees generally frequented the convenience store across the street because it had a better selection of goods and was more economical than the onsite vending machine. Under these facts, the First DCA held “An employer-condoned off-premises refreshment break of insubstantial duration is generally not such a deviation as to remove a claimant from the course and scope of the employment. See Cunningham v. Scotty’s Home Builders, 9 FCR 1 (1973), cert. denied, 307 So.2d 182 (Fla.1974). In Cunningham, the claimant was injured while returning from a convenience store at which he purchased food and drink. Although the off-premises trip in the present case was motivated by a desire to purchase cigarettes, we find this distinction to be insignificant. The trip was a foreseeable and non-prohibited refreshment break activity, and employer’s authority over claimant was not significantly dissipated during the course of the trip. As Cunningham indicates, a worker’s attendance to personal comfort during a refreshment break is conducive to the facilitation of the employment, and in the circumstances presented in the present case claimant’s brief off-premises trip did not remove him from the course and scope of his employment.”[3]
As with all Florida workers’ compensation accidents, different facts and circumstances of each employee’s accident can impact the outcome and compensable nature of the claim. As such, if you have a question regarding lunch time accidents, you should contact a Tampa work comp lawyer to discuss your issue. Our Tampa work comp attorneys offer free consultations, and offer in-home consultations if transportation is an issue.
[1] see Doctor’s Business Service, Inc. v. Clark, 498 So. 2d 659, 662 (Fla. 1st DCA 1986).
[2] City of Miami v. Dwight, 637 So.2d 981 (Fla. App. 1 Dist., 1994).
[3] Holly Hill Fruit Products, Inc. v. Krider, 473 So.2d 829, 10 Fla. L. Weekly 1911 (Fla. App. 1 Dist., 1985).]]>
Bob works for a large company as his first job and works for a screen repair company (with two employees) on nights and weekends. Bob has an injury at his first job. The money he earns repairing screens in the full thirteen weeks before the accident will not be counted towards calculating his average weekly wage.
Bob is given light duty restrictions by his workers’ compensation doctor, with no lifting over 20 pounds. Bob’s first job tells him they cannot accommodate his restrictions, so he is to receive Temporary Partial Disability benefits.
Repairing screens are within his weight lifting restriction, so Bob continues to do that at the same rate he did prior to the accident: on nights and weekends.
In this situation, Bob’s post injury wages will not be offset against his Temporary Partial Disability benefits. Therefore, he will receive the full Temporary Partial Disability benefit and receive his pay from repairing screens.
Now, if we change the hypothetical to reflect the second job was in fact covered employment, the scenario would play out differently. In that scenario, the wages from the second job would be included in calculating his average weekly wage. In this scenario, the average weekly wage would be higher, but Bob’s earnings from the second job would offset his Temporary Partial Disability benefits.
The questions of what is covered employment or whether concurrent employment earnings effect workers’ compensation benefits can be highly complex and are extremely fact-specific. Therefore, you should not rely on the hypothetical above in your case, but rather speak with a workers comp attorney in Tampa regarding your work injury case. If you have a question about concurrent employment or any other workers’ compensation question, contact our office to speak with one of our work injury attorneys for a free consultation.]]>