A collection of disparities in the Florida Workers’ Compensation Law

"THE WORKERS’ COMPENSATION SYSTEM IN FLORIDA IS BASED ON A MUTUAL RENUNCIATION OF COMMON LAW RIGHTS AND DEFENSES BY EMPLOYERS AND EMPLOYEES ALIKE" s. 440.105 Fla. Stat. (1993).

SAFETY: Injured worker suffers not only an accident and injury but also a loss of 25% of his benefits if he knowingly fails to use a safety appliance or device. 440.09(5) Fla. Stat.

Employer fails to provide safety appliance or device or removes safety devices from equipment and injury or death results. Result: No additional benefits to injured worker and no right to common law suit.

FRAUD: Injured worker commits fraud to obtain benefits he is not entitled to in an otherwise compensable claim. Injured worker forfeits all compensation and medical benefits provided by the act. 440.09(4) Fla. Stat.

Employer or Carrier commits fraud to try to prevent injured worker from collecting all benefits due. Result: No additional benefits due to injured worker and no right to sue for civil fraud either. Montes de Oca v. Orkin, 692 So. 2^d 257 (3 DCA 1997).

VOCATIONAL REHABILITATION: Injured worker refuses to cooperate in rehabilitation effort. Result: Loss of benefits. 440.15(1)(e)3. Fla. Stat.

Employer/Carrier fails to comply with requirement to provide re-employment services. Result: No additional benefit to the employee. 440.491(3)(a).

AVERAGE WEEKLY WAGE: Injured worker is considered a "tipped" employee. He is paid $2.13 per hour. He is "encouraged" to report his tips to the employer but told to only report enough per week to get his income up to minimum wage. Or, in the case of restaurant help, to only report tips equaling 7% of their sales (even if the employer actually pays more in tips to the employee because those tips were left on credit cards accounts). When injured worker is only paid compensation based on 66 2/3% of minimum wage and complains, he is accused of being a tax cheat and denied compensation for all the tips he received.

The employer is not required to pay any additional compensation even if the employer caused the under-reporting, violated Federal Tax Law and committed premium fraud. 440.02(24) Fla. Stat.

AVERAGE WEEKLY WAGE/OFFSETS: Injured worker pays 50% of his Social Security costs. Employer pays the other half. Employers portion is NOT included in the AWW. But, if the employee collects from Social Security Disability benefits, the employer/carrier gets to offset 100% of the Social Security benefit 440.15(10) Fla. Stat.

AVERAGE WEEKLY WAGE/OTHER COLLATERAL BENEFITS: Injured worker, as part of his pre injury pay and benefits package, is the beneficiary of contributions made to a pension plan. The contributions are NOT included in calculating AWW. Yet, if the employee receives compensation and pension benefits, which exceed 100% that same AWW, the employer gets to reduce his compensation. Escambia County Sheriffs Office v. Grice, 692 So. 2d 896 (Fla. 1997)

DISCOVERY: Injured worker who fails to comply with Discovery order may lose all compensation benefits during the period of refusal.

Employer who fails to comply with Discovery order rarely gets hand-slapped and certainly there is no additional benefit to injured worker. 440.24(4)Fla. Stat.

OBLIGATION TO REHIRE: Employee refuses employment, refusal is presumed unjustified and benefits may be suspended. 440.15(7) Fla. Stat.

Employer refuses to comply with the "Obligation to Rehire." Employee gets nothing. No benefits, no job, nothing. There is supposed to be a fine of up to $2,000.00 payable by the employer to the Administrative Trust Fund in accordance with rules to be promulgated by the Division. Truth: Since the law went into effect on January 1, 1994, no rules have been promulgated and no one cent in fines collected and not complaining injured worker has had his problem resolved satisfactorily. 440.15(6)Fla. Stat.

VIOLATION OF CHILD LABOR LAWS: Employer violates child labor laws. Employer may be required to pay additional compensation, up to double the compensation due.

Finally, a provision that benefits the injured worker financially. All the other provisions benefit the Employer/Carrier financially but not the injured worker. There is one catch. The Employer (not the Carrier) is responsible to pay the extra compensation and the risk cannot be insured. So the minor has to try to collect from an employer who violated the Child Labor Laws. Who wants to bet the Employer is judgment proof? 440.54 Fla. Stat.

Mark L. Zientz
Law Offices of Mark L. Zientz, P.A.
9130 South Dadeland Boulevard
Suite 1619
Miami, Florida 33156
305.670.6275
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