Justice is not automatic - the right work comp lawyer can make a real difference.
Justice is not automatic - the right work comp lawyer can make a real difference.
Wages are an important part of the workers' compensation system in Florida. As compared to medical benefits, however, wage benefits are much more limited - your employer or their insurance carrier can be required to give you medical care for the rest of your life but even the most generous category of wage benefits comes with limitations. With that said, we know it is crucial that injured people at least get the benefits that the law does provide. We will attempt to cover various topics related to workers' compensation wage benefits below but you can always call us for answers to other questions.
There are three types of temporary disability and the maximum length of time that you can receive temporary benefits is currently 260 weeks.
Temporary Total Disability
When the doctor says that you are completely unable to work, this is temporary total disability, or TTD. When you are TTD, the employer or the insurance company must pay you 66 2/3% of the average wages you earned prior to your injury. There is more information below about how the average wages used for workers' compensation purposes are calculated.
Temporary Partial Disability
Almost invariably, the doctor will at some point say that although your recovery from your injuries is not yet complete, you have the ability to return to work with certain restrictions. These restrictions can be related to how much you can lift, how long you can sit, the number of hours per day you can work, etc. ANY restriction in your ability to work puts you in the temporary partial disability, or TPD, category of temporary benefits.
When you are released to return to work, even though the release comes with restrictions, you must contact your employer and offer to work within those restrictions. We usually recommend that our client do this by fax and keep both the fax AND the fax receipt so it is possible to prove that you took this step.
If the employer says they do not have work available within your restrictions, get it in writing! In this case, your pay is 64% of your pre-injury average wages, slightly less than TTD.
If they say work is available, you need to at least attempt it if you expect to receive wage benefits. You are however within your rights to refuse work which is not within your doctor's restrictions. Clearly, the more detailed the restrictions are, the easier it is to know whether the work you are being offered complies. There is nothing wrong with asking your doctor for clarification or more detailed restrictions.
Sometimes the available work comes with a lesser pay rate. Often injured people receive less hours or their hours are eaten up by having to attend doctor appointments or therapy. Either way, this is where TPD comes in. We like to call it a safety net. Basically, if your wages dip below 80% of the pre-injury average wages, the employer or the insurance carrier will have to supplement your earnings from your employer with workers' compensation benefits. If you have restrictions and are making less than 80% of what you made before you got hurt and you are NOT receiving supplemental checks from the insurance carrier, call us.
Maximum Medical Improvement
TTD and TPD end when your doctor says you are at Maximum Medical Improvement, or MMI. MMI is the point where the doctor feels he or she has done everything that can reasonably be done to make you better. If you have more than one doctor with different specialties, you are not at MMI until they ALL agree that you are at the point of maximum improvement. Again, MMI does not mean you are fine, it means you are good as you are going to get or perhaps more accurately, as good as the doctor feels he or she can make you. Most people still require care and have limitations after MMI. The relevant point here, though, is that TTD and TPD end at MMI or 260 weeks of benefit payments, whichever is sooner.
Rehabilitative Temporary Total Disability
The third and final class of temporary benefits is called Rehabilitative Temporary Total Disability, or RTTD. Unlike TTD and TPD, RTTD is post-MMI. You are eligible to receive up to a year of RTTD while you are in classes IF you are approved for retraining by the state using the proper process. The maximum amount of weeks that you can receive RTTD is 52. Also, keep in mind that although the caselaw is not that clear TTD, TPD and RTTD all probably come out of the same "bucket" which would mean that if you use the maximum number of weeks for TTD and/or TPD when where would be none left for RTTD.
Impairment Benefits
When you reach MMI, your doctor must assess whether you have sustained a permanent injury according to a book he or she is required to use. In that book, many different medical conditions are listed and each comes with a pre-determined disability rating. We find that these ratings do not often reflect the difficulties you face BUT the doctors do not have the ability to raise or lower your rating from the one listed in the book. Just because you receive a rating that you think is low given your pain, your limitations or your situation does not mean that your doctor thinks you are not hurt or that you are faking your injury or something similar. It usually just means that the people who wrote the book assigned a number for your injury that does't relate well to the impact of that type of injury.
For each percentage point of whole-body impairment you are assigned by your doctor based on the rating guide, you get a certain number of weeks of additional wage benefits. Unlike TTD and TPD, these benefits have nothing to do with your work status, they are simply what you receive for having suffered a permanent injury. The rate varies based on whether you are working and how much you are making in wages. If you have a rating and the carrier is not paying you impairment benefits, call us.
Permanent Total Disability
When you are seriously or catastrophically injured, permanent total disability, or PTD, becomes a consideration. The legislature has intentionally made PTD very hard to obtain. You essentially have to show that, because of your injuries, you cannot perform ANY work. You do not get PTD simply because you can no longer earn a certain salary or because you can't do the type of work that you did before. We have to demonstrate that your work injury essentially precludes ALL types of work, no matter how menial or unrewarding.
We prove this in one of two ways. If your doctor's restrictions are so numerous and so restrictive that there is literally no job in the local economy which could accommodate all of them, you are PTD. The other way we prove PTD is a little more involved. When the legislature changed the definition of PTD in 2003, they accidentally revived a series of court rulings which were favorable to injured workers. These court rulings indicate that if you have serious restrictions, even though they might not amount to something which would warrant PTD on their own, the court still has the power (but is not required to) to award PTD in two circumstances: (a) your serious restrictions combined with vocational limitations unrelated to your injury eliminate all possible work and (b) your serious restrictions are combined with a lengthy, exhaustive but ultimately unsuccessful work search.
A note about the work searches. You are asking the judge to order the carrier to pay you for the rest of your life. The work searches need to be amazing. You need to blow the judge away with how hard you looked for work and impress the Court so that they understand that it is your injury that prevents you from working, not a lack of desire or that you are lazy. We can explain how to do a work search that would impress any judge but you have to log the hours and do the searching.
If you are awarded or accepted as PTD, they have to pay you until you are 75 years of age at the TTD (66 2/3%) rate. Depending on your age and wage level, this can be hundreds of thousands of dollars so PTD really is a big deal. Our biggest cases are always PTD cases. It's worth the effort. You also get an annual cost of living increase designed to counter the inflation and cost-of-living increases. This annual COLA stops at age 62. If you think you might be PTD, call us right away.
Carriers frequently get the wage rate wrong. It's not a huge issue if you are disabled for a week or two but most injuries are more serious than that. It pays to examine the wage rate and make sure it is correct. If you worked at the employer for three months prior to your injury, it is easy and they still mess it up. You take the 13 weeks prior to your injury, add the gross wages earned and divide by thirteen. Your take-home pay is irrelevant in this, it is all about the gross wages. This includes any and all overtime. Many times they ignore the overtime until we force them to make adjustments.
If you didn't work there for three months or took time off during the three months, other rules apply. If you had a second job at the same time, we can seek to apply other rules. If you received health insurance which was paid for, even in part, by your employer at the time of your injury but they later stop providing it or paying for it, adjustments are required but they rarely make them unless we take action.
The fallout from a work injury can be devastating. The wage benefits in the workers' compensation system are pitiful. Unless you are PTD, you really can't get more than a few years of benefits no matter how hurt you are or how limiting your injuries are. Given that is the case, you should certainly get all that you are entitled. If you don't think you are, let us help you.
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