HR Specialist: Florida Employment Law

There’s a dark side to doing business in the Sunshine State. Aggressive attorneys don’t stop with federal laws like FMLA, ADA and FLSA: they use state and local living-wage statutes, rural codes, plus discrimination and other laws to sue employers for sky’s-the-limit damages. This Florida-specific newsletter arrives monthly to help sue-proof every aspect of HR. Written in plain English, it’s your insurance policy for staying in step with current interpretations of state and local laws – and staying out of court. Learn more about HR Specialist: Florida Employment Law and the free report you’ll get when you subscribe...

Even though Florida’s workers’ compensation (WC) system includes many safeguards to protect against abuse, you must still stay on top of cases to ensure that you pay only legitimate benefits.

One tricky WC concept: “maximum medical improvement” (MMI).

It sounds simple enough. MMI occurs when “the treating physician determines that the employee’s injury has healed to the extent that further improvement is unlikely.” But a few recent WC cases show how complicated the issue can become for employers.

Termination before MMI. A supermarket employee was injured on the job and received treatment paid for by the employer’s WC carrier. However, the employer terminated the man for reasons unrelated to his WC claim before he achieved MMI.

The man filed for temporary disability benefits under the WC system. The court rejected his claim because, under Florida’s WC law, employees must show they are unable to earn at least 80 percent of their pre-injury wages in order to receive temporary disability benefits. Since the man missed no work between his injury and his termination, he could not make the case.

The lesson: Employers should not be afraid to fire employees who have made WC claims even if they haven’t yet reached their MMI. The key is to fully document the facts surrounding the termination and show clearly that the termination is related to performance issues, not WC usage.

MMI means end of benefits but not accommodation. Once the treating physician determines the employee has reached MMI, no more benefits are payable. This is true even if the employee continues to suffer symptoms of the injury.

In one case, a worker suffered a back injury on the job and received benefits. After returning to work, she was assaulted and bitten by a customer. The treating physician ruled that she’d reached MMI from the biting incident, so she returned to work.

However, she complained that her back pain would “pull her down mentally.” But the treating physician said the real trauma was the bite. But since she had already reached her MMI, no benefits were payable.

The lesson: Employers in similar circumstances should remember that the worker may also have rights under the ADA or the Florida Civil Rights Act. If the worker’s injury meets the ADA’s definition of a disability, and the worker can perform the job’s essential functions with or without an accommodation, both laws require employers to explore accommodation options.

The 50 percent rule. For injured workers to collect benefits from a workplace injury, the job-related injury must be more than 50 percent responsible for the worker’s injuries.

In a recent case, a waitress slipped and fell on the job. She complained of shoulder, neck and back pain when she sought WC benefits. But her medical record revealed that she’d had multiple surgeries to her shoulder, back and neck. The fall only aggravated them.

Further, her doctor ruled that she’d already reached her MMI for those injuries, and the earlier injuries were the “major contributing cause” to her pain. Consequently, the injuries suffered in the most recent fall were less than 50 percent responsible for her condition.

Documentation is key. Employers must remember that every workplace accident must be reported immediately. In fact, Florida employers must report accidents to their carrier within seven days or face a fine of up to $2,000. Workplace accidents resulting in deaths must also be reported to the Division of Workers’ Compensation within 24 hours. Find forms and guidance at www.fldfs.com/wc.