If a first responder has a permanent impairment rating of at least 20% after having reached maximum medical improvement, the first responder might be entitled to Florida workers compensation supplemental wage loss benefits.

These are very valuable money benefits and, depending on your average weekly wage and compensation rate, could be in excess of $100,000. The  City of Miami Beach attempted to reduce those benefits by the receipt of a pension in the case of Wilder v. City of Miami Beach, 33 FLW D2436 ( October 24, 2008) The First District Court of Appeal said “No!”

F.S.  440.15(3)(b)1 says that a  Florida first responder will get supplemental wage loss benefits, if the claimant “has not returned to work, or  has returned to work earning less than 80% of the employee’s average weekly wage,” and if the claimant “has in good faith attempt to obtain employment commensurate with the claimants ability to work.”

The court found that the phrase “has returned to work” implied that earning does not include money collected while not working, such as a pension or, for that matter, investment earnings.  The court held ” that a  post injury pension did not meet the common understanding of wages or earnings.”

The court reversed the Judge of compensation claims ruling that denied supplemental benefits based upon the receipt of a pension after the injury.  Firefighter Wilder will now be  entitled to supplement loss benefits without any reduction for receipt of a pension.

I am finding that a lot of municipalities are not determining whether a Florida  first responder has a permanent impairment rating.  As a result, we are referred our first responder clients to independent cardiologist for an evaluation of the extent of the permanent impairment rating and have filed claims for the payment of impairment benefits and or supplemental wage loss benefits. Most, if not all, of the covered  physical conditions that first responders may suffer from as result of their employment half permanent impairment ratings and benefit should be paid.  If you have not been given a permanent impairment rating for question the amount of your Florida workers’ compensation impairment benefits and or supplemental wage loss benefits, please contact Cavey and Barrett, your Tampa Bay-based first responder workers’ compensation claims law firm.

Posted November 20th 2008 to Cardiac Case Law, Topics of Interest for First Responders | Comments(1)

The Florida Supreme Court  entered a blockbuster decision on October 23, 2008 on the  Florida workers’ compensation attorney’s fees provisions of the 2003 Florida  workers’ compensation statute in  Emma Murray v.  Mariner Health, 33 Fla. L. Weekly S845.  Click to read the decision. The decision is important to all Florida first responders!

The Florida legislature amended the attorney fee provisions of 440.34 five years ago and tried to limit the payment of the workers’ compensation attorneys. Florida workers compensation attorneys, like Nancy Cavey, were paid attorneys fees if they successfully obtained workers’ compensation benefits at the expense of the Florida workers’ compensation carrier based on one of two methods of calculation.  The first method allowed a workers compensation hearing attorney to be paid based on the hours they worked on medical or money benefits they got for the injured Florida worker. The other method was to pay the workers’ compensation attorney, a percentage, based on the value of the benefit secured.  In other words, if a workers’ compensation lawyer like Nancy Cavey, obtained the payment of a cardiac catheterization, which cost $2000, her fee would be 10% of $2000 or $200.  If she spent 10 hours getting that benefit, Nancy Cavey would be paid $200 an hour or $2000.

The Florida legislature attempted to limit attorneys fees to the value of benefit secured.  Obviously, a workers compensation attorney would find it very difficult to practice and pay bills  if the fees were limited to the value of benefits secured.  As a practical matter, many workers’ compensation attorneys left the practice. Tampa Bay workers’ compensation attorney, Nancy Cavey,  continued to represent Florida workers with valid claims for medical or compensation benefits

The Murray  decision made it clear  at the Florida legislature had not properly defined  “reasonable attorneys fee” in a 2003 legislation.  The court found that Florida  workers’ compensation attorneys should be paid based on hours worked and not benefits secured.  This is a great decision for the injured workers’  and First Responders of Florida!

Just because you are covered by the Florida  Heart and Lung Act, does not mean you get benefits. You have to be disabled! OK, but HOW long do you have to be out to meet the disability standard?

In an awful decision in Bivens v. City of Lakeland, 33 Fla.L. Weekly D2342b (October 2, 2008), the First District noted that “disability occurs only when the employee becomes actually incapacitated, partially or totally, from performing his employment.” A finding of “disability hinges solely on the employee’s ability to earn incomes, not upon  other factors such as whether the employee has experienced a wage loss.

Bivens testified his micro-vascular angina did not effect his ability to perform his duties as a firefighter and he could also do the physical requirements of his job. He did  miss time for testing, doctor’s appointments and missed six days after a heart catheterization. The court ruled that missing time for testing was not disability. . . “the detection of an occupational disease does not necessarily coincide with the date of disablement from the disease.  The court noted that ” if testing or treatment, standing alone, equaled ‘disability,’ everyone would be disabled upon their first visit to a doctor’s office”.

So, make sure your doctor opinions that while you are having testing or treatment, that you are incapable of performing your duties as a result of your condition and that you don’t perform those duties.

Call an experienced Florida First Responder workers’ compensation attorney like Nancy Cavey if you have any questions about disability for Heart and Lung Claims.

In an awful decision, Bivens v. City of Lakeland, 33 Fla. L. Weekly D2342b (October 2, 2008),  firefighter Bivens claimed workers’ compensation benefits arguing that his hypertension was a covered condition under the statutory provisions of section 112.18(1).

The  First District ruled that essential hypertension was not a form of hypertension covered by Section 112.18(1). Only “hypertensive conditions that are arterial or cardiovascular hypertension” are covered by the Heart and Lung Presumption.

In future posts i will explain the difference between essential,  arterial or cardiovascular hypertension.

The new line of defense to First Responder workers compensation claims will be to deny claims on the basis that you don’t have a covered form of hypertension. Your employer/carrier will send you to an IME doctor who will diagnosis you with essential hypertension and then ask for the appointment of an expert medical advisor who will be the tie breaker opinion.  The Judge of Compensation Claims must accept the opinion of the EMA.

If you are diagnosed with hypertension it is crucial that your doctor address whether you have arterial or cardiovascular hypertension. If you don’t suffer from either, your hypertension won’t be covered by the  Florida Heart and Lung Presumptions law. If you have any questions about your rights to Florida workers compensation benefits as a First responder, call  St. Petersburg based first responder attorney Nancy Cavey.

The First District Court of Appeal has held in two cases that you must be disabled for the presumption to apply.

In Sheaffer v. City of Kissimmee, 942 So2d. 887 (Fla. 1st DCA 2006)   and in Miller v. City of Del Ray Beach Police Department, 31 FLW D465 (Fla. 1st DCA 2006) record ruled that a presumption was not applicable since the first Responder was not disabled.

As of October 1, 2003, section 440.151(3) defined “disability” as “the incapacity because of injury to are in the same or any other employment the wages which the employee was receiving at the time of the injury.”

The First District Award of Appeal entered a great decision in Seminole County Sheriffs Office v. Johnson, 901 So2d. 342 (Fla. 1st DCA 2005).

This case stands the proposition that the 2002  amendments to 112.18(1) which expanded the class of people entitled  to the statutory presumption to include firefighters, law enforcement and correctional officers as statutorily defined applies retroactively without regard to the date of accident and injury.

This means that the change was procedural and not substantive. As a result, the change in the statute applies to  officer Johnson.

Does the Florida First Responder presumption apply if your pre-employment physical shows high blood pressure? If the pre-employment physical does not show evidence of heart disease you ARE entitled to the Heart and Lung Presumption.

The Florida legislature has recognized that Florida fireman are “subjected .. to the hazards of smoke, heart and nauseous fumes from all kinds of toxic chemicals as well as extreme anxiety derived from the necessity of being constantly faced with the possibility of extreme danger..  this exposure could cause a fireman to become the victim of tuberculosis, hypertension or heart disease.” In Talpesh v. Village of Royal Palm Beach 33 FLW D2191 (September 15,2008), the First District said Talpesh, a firefighter, was entitled to the presumption since the pre-employment physical  did not show any evidence of heart disease.

The Court did point-out that the presumption “switches the burden of proof from the claimant to  employer/carrier, and may be overcome by “competent evidence.”

If you have any questions about your pre-employment physical and your Florida First responder rights, contact workers’ compensation board certified attorney, Nancy Cavey.

No! In Smith v. City of Miami,  552 So2d. 245 (Fla. 1st DCA 1989),  be First District Court of cat appeal ruled that the First Responder presumptions do not apply to a retired firefighter.

The Court reasoned that a retired fireman did not meet the definition of section 112.191 (1)(b) which requires that a”fireman” be a “duly uniformed firemen.” Since he was retired, he was not a “duly uniformed firemen.”

The lesson here is to consult with an  experienced first responder attorney, like Nancy Cavey, so that you don’t retire prematurely and jeopardize your rights to First Responder workers’ compensation benefits.

One of the most important workers’ compensation benefits  you can claim is permanent total disability benefits.   A claim for permanent total disability benefits for dates of accident after October 1, 2003 is based on whether you’re functional capacity for work is less than sedentary.

It is important to determine your functional capacity as a first responder but your functional capacity to do less than sedentary work in the labor market. One of the ways to prove your functional capacity is to undergo exercise testing.

There is a very important article from Circulation, a  Journal of The American Heart Association  on any assessment of functional capacity which can be found at http://circ.ahajournals.org/cgi/content/full/116/3/329.

Every experienced First Responder workers’ compensation attorney, like Nancy Cavey, pays attention to these types of articles as they can be used to help prove your entitlement to Florida workers’ compensation benefits.

Proof of permanent total disability benefits is the subject of a recent article in Florida’s Workers’ Compensation Publication  440 News and Report.  I will summarize the article and what is important for First Responders to know about their Workers’ Compensation claim.

The Carrier in the blockbuster Punsky decision, which gutted the Employer/Carrier’s favorite risk factor defense,  has filed a Motion for Re-hearing asking the First District Court to change its mind. I doubt the court will agree but I will keep you updated.

If you have questions about your First Responder Heart and Lung case or questions about your Florida workers’ compensation benefits, contact Nancy Cavey. a St. Petersburg board certifed worker’s compensation lawyer who specializes in  representing first responders.