Jacksonville Attorney Michael Sullivan discusses the ins and outs of the workers' compensation system in Florida on the radio show Advocate for Success.

Below is the transcribed dialog from Michael Sullivan's Guest Spot on Advocate for Success, a local radio show.

This content can also be found in our Workers' Compensation FAQ section as video segments.

Ins and Outs of Workers’ Compensation-

ANNOUNCER: Welcome to Advocate for Success with your host, Elizabeth Vardas, on ABC 1320 WBOB.
MS. VARDAS: Hey. Welcome this Sunday to Advocate for Success. I’m Elizabeth Vardas, your host. It has been two weeks, but it seems likes two months since I have been on the air. I appreciate you coming back and listening to us and calling in and asking where we are. We are still here. We are still on the air, and today I have a guest that has been with us before. His name is Michael Sullivan. He is an attorney with the law firm of Sullivan and Hepler. That’s H-e-p-l-e-r for those that remember when he was on before.
Today we are going to be talking about the ins and out of the workers’ compensation cases. So if anybody is out there going through that right now, a worker’s compensation case, we really encourage you to listen to this and take the number down 854-1320. If you’re outside the listening area, its area code (904) 854-1320, and call in if you have any questions. Mr. Sullivan is here to try to explain how that whole process goes, and we are going to start with welcoming him.

Thank you again for joining us again, Michael.

MR. SULLIVAN: Yeah. Thanks for having me. I appreciate it.
MS. VARDAS: And let’s just start with giving us the theory behind the worker’s compensation case.
MR. SULLIVAN: Well, in years past or around the time of the Industrial Revolution, if you got hurt at work, all you had was the common-law system, which was a fault-based system. Anytime you’re talking about fault and that type of thing, what you end up with a lot of times is each party pointing fingers at each other and the like, and it takes a long time to get that situation resolved as to who’s at fault and who owes what and that type of thing.
The theory behind the workers’ comp system was a situation where what they wanted to do was a quick, speedy provision of benefits to injured workers without regard to fault; and the trade-off was that in the common-law system, that was designed make you whole, basically give you everything that you’ve lost with the injury. The trade-off with workers’ comp is it’s a system that was never designed to make you whole. It gives you a portion of what you lost.
MS. VARDAS: So it’s just kind of helping you get through your time lost from being absent from your job?
MR. SULLIVAN: Correct.
MS. VARDAS: So tell us about the importance of reporting your accident, because that’s where the ball starts rolling; right?
MR. SULLIVAN: Sure.
MS. VARDAS: How does that work, and is there a timeframe for that?
MR. SULLIVAN: There is a timeframe. It’s 30 days from the time the injury happened or the time you should have known that you had an injury. There are some injuries like repetitive trauma-type injuries that happen over the course of time, but assuming you have a discrete event or accident, you have 30 days from the time it happens to report it. That’s the legal timeframe.
As a practical matter, you really need to report it as soon as possible. The longer you wait, the worse off you’re going to be. There will be questions of, “Well, you know, we really didn’t think you got hurt,” that type of thing.
MS. VARDAS: “Why did you wait so long?”
MR. SULLIVAN: Exactly. “Well, you could have hurt it at home,” that type of thing. But it’s super, super important to report that injury as soon as you possibly can.
MS. VARDAS: And who would they go report that to?
MR. SULLIVAN: Well, typically what you want to do is you have to report it to a supervisor. I recommend to people to report it to the highest level person they have access to, essentially. A lot of times an immediate supervisor sometimes is in a position where they are put under pressure, you know, to try to not have work injuries and have -- you know, they have safety bonuses and the like. So they don’t want you going and reporting it, and so they’ll put pressure on you to say, “Hey, listen, why don’t we wait a couple days to see --”
MS. VARDAS: “Are you sure you’re hurt?”
MR. SULLIVAN: Right.
MS. VARDAS: “Why don’t you wait and see if you’re feeling better to report it?”
MR. SULLIVAN: Exactly. And so you want to try to avoid that situation, and the best way to do that is to go to the highest person you have access to. I also recommend if you think it is going to be a problem in terms of getting your benefits or they’re going to try to, you know, coerce you into handling it through your group health insurance or that type of thing, is to put it in writing.
MS. VARDAS: I was going to say that. Shouldn’t they definitely write a statement out or something: “I was injured on this day and this is what I feel like my injuries are,” or something like that?
MR. SULLIVAN: Yes. That’s very, very helpful. A lot of times, depending on how sophisticated the employer is, a lot of times, you know, particularly smaller employers, they will just absolutely refuse to report the injury to the state and --
MS. VARDAS: Because it costs them, doesn’t it?
MR. SULLIVAN: Absolutely. If that happens, there is a way that you can actually report that to the division yourself.
MS. VARDAS: Okay.
MR. SULLIVAN: And that’s through what’s called the ombudsman’s office. It’s called the employee’s assistance office. I don’t have the phone number with me, but there is a mechanism in which you can actually report the injury yourself if the employer refuses to do it.
MS. VARDAS: Is that something they can find on your website?
MR. SULLIVAN: They will be able to. We are in the process of getting our new website up and going, but that will be something. We are actually going to be coming out with a book on workers’ compensation as well, probably in the next couple of months, and it will have that information in it.
MS. VARDAS: Okay. And if anyone was listening before -- and I’d say it was about a month ago that you were on?
MR. SULLIVAN: A little bit more.
MS. VARDAS: It’s been longer than I thought. Mr. Sullivan was on talking about Social Security Disability benefits and how to apply for them; right? And you wrote a book about that and you can get it online. He is doing the same thing about workers’ compensation cases; right?
MR. SULLIVAN: That’s right.
MS. VARDAS: And their main website is Sullivan and Hepler, H-e-p-l-e-r, dot com. So you can go to their website and know how to get ahold of Mr. Sullivan and his firm and ask him any questions that you might have about your worker’s compensation case.
Again, if you want to call in and ask him a question, it’s 854-1320. That’s area code 904 if you are listening outside our area.
And so the main thing to be -- I would suggest to put it in writing definitely about when it happened and who your doctor is maybe or who you’re seeing, or does that make any difference?
MR. SULLIVAN: Well, initially, you know, you report it; and once you report it then they will assign you a doctor. Or a lot of times you’ll go to the emergency room, which is something that would be covered. You want to get that in front of the highest level person you can.
If you are being pressured not to report it -- the biggest mistake that I see people make a lot is they have an injury where they’re not sure how badly they’re hurt, and what they’ll do is they’ll go to the emergency room and say, “I hurt it at home.” That causes a huge, huge amount of problems down the line if that’s a serious injury.
MS. VARDAS: Yeah. I can see how it may change, you know. Well, you’re going to have to take that back, and really you didn’t mean to say that, but you’re going to have to take it back and say why you said that; right?
MR. SULLIVAN: In that situation, I’ve tried cases where that has occurred, and we have not gotten good results. Let’s just say that. So that can be the death knell of your case right from the start.
MS. VARDAS: Right.
MR. SULLIVAN: So never do that.
MS. VARDAS: Well, and that’s our cue we’re going to have to take our first soft break here. You’re listening to Advocate for Success on 1320 WBOB, and I just want to let everybody know that starting May 1st we are going to change to a new station, a new dial on 1460 WZNZ, but we have the same great lineup. So nothing’s changing. We’ll be back.
And we’ll be right back with you to talk with Mr. Sullivan. Thank you.

ANNOUNCER: Welcome back to Advocate for Success with your host, Elizabeth Vardas, on ABC 1320 WBOB.
MS. VARDAS: Hey, and welcome back to Advocate for Success. I’m Elizabeth Vardas, your host, and it’s so good to be back here in the station. I’ve been gone for a couple of weeks making transitions for our new changeover to 1460 WZNZ. We have in the studio Mr. Michael Sullivan of the law firm Sullivan and Hepler, and we are discussing the ins and outs of workers’ compensation cases.
If you have any questions for Mr. Sullivan, please call in at (904) 854-1320. We have been discussing -- let’s see. We were going to go next to the major contributing cause about workers’ compensation cases. Talk about that a little bit.
MR. SULLIVAN: Sure. Major contributing cause is a standard that you have to meet in order to get any benefits under the workers’ compensation statute. Basically, what you have to prove is that the major reason or the major contributing cause of your medical condition or your need for treatment or your lost wages is the work-related accident and not some pre-existing-type condition. So if you hurt your back before and you hurt it worse at work, you have to prove that the main reason why you need treatment at this point in time is the work accident and not your pre-existing condition. It’s basically an initial hurdle.
MS. VARDAS: And that makes me think about a question. How much time -- is there like a time that lapses from your prior injury to something that may have been just received from working? Is there a timeline?
MR. SULLIVAN: There is no bright-line rule. No, no, no. Realistically, as a practical matter, the more remote the pre-existing condition is, the better off you are. That is, for instance, if you had a prior back injury, and you recovered from it with some minor residuals such as you have pains every now and again, and then you have a major event at work, now you’re in the position where you have to prove major contributing cause.
Well, if you can’t work now after the second accident, after the work accident, then it’s pretty easy for a judge to conclude that the major reason for you being out of work at this point is this new injury because you were working all this time.
MS. VARDAS: I see. Right. So it’s pretty cut and dried at that point?
MR. SULLIVAN: Yeah. But if your pre-existing condition was a week before and you really haven’t gotten a chance to see, you know, what the baseline of that condition is, then we have more of a muddy water.
MS. VARDAS: A clouded issue.
MR. SULLIVAN: A muddy water, yeah. But there is no bright line rule in terms of your condition had to be at least a year old or that type of thing.
MS. VARDAS: Okay. All right. You may have an old injury but your new injury, maybe could it be stemming from your old injury, but you get a totally different injury out of it?
MR. SULLIVAN: Sure. Yeah. I mean people who have previous injuries are statistically more likely to reinjure that weak spot, if you will.
MS. VARDAS: Yes. I do it all the time with my back. Yeah.
MR. SULLIVAN: So you’re more prone to injury.
MS. VARDAS: Right.
MR. SULLIVAN: But again, you know, assuming that you are capable of maintaining employment and working and you’re coming to work every day and you have a good attendance record, and then all of a sudden you have another discrete injury at work. You know, again, a judge is pretty much going to conclude that “Hey, well, you know, they have a history here of working with this pre-existing condition, and now they can’t.”
MS. VARDAS: Okay. And let’s go right into money benefits because, let’s face it, money is the bottom line.
MR. SULLIVAN: Sure.
MS. VARDAS: For any family, especially right now, it would be really terrible to have an injury on the job. You know, my family has gone through that before too, and it’s really hard because you only get a certain percentage of your wages. Why don’t you go ahead and talk about that aspect?
MR. SULLIVAN: We’re really kind of now getting into the alphabet soup of workers’ compensation. The first, I guess, alphabet label we have is average weekly wage. We call it AWW. Average weekly wage is what your benefits are figured on.
Typically, the way you figure out what your average weekly average wage is, the first way is 13 weeks before you get hurt you average that together, and that gives you your average weekly wage. That’s why they call it average weekly wage, obviously. But the question becomes: what if you didn’t work the whole 13 weeks before you got hurt? How do you go about figuring out what your average weekly wage would be?
In that situation they have other subsections that allow you to use different methods to calculate it. The first one is similar employee. That is, the employer has to go out and find someone who is doing about what you were doing, the same type of job, and hopefully that similar employee had a 13-week history. If that doesn’t work, or if there are no similar employees, then you go to actual earnings; that is, you just average the time you were there. And we call that actual earnings.
MS. VARDAS: So is that -- and I hate to interrupt you -- but I just had a question.
Is that based on like a seasonal employee? How would that -- if you were taking a vacation and you came back or something like that?
MR. SULLIVAN: There is a catch-all provision. If none of these methods is adequate, a judge of compensation claims has a lot of leeway in this area. The last basic subsection of the statute, the average weekly statute, allows the judge to do basically what’s fair. So that’s the way that works. If you were on vacation or you were a seasonal employee, that type of thing, you can, you know, kind of rely on that provision.
MS. VARDAS: Right. So just to recap real quickly, we were talking about before we went to break that you need to report your injury as soon as possible.
MR. SULLIVAN: Absolutely.
MS. VARDAS: As soon as possible. Don’t wait. There is a 60-day waiting period, right, or is it a statute of limitations?
MR. SULLIVAN: No. It’s not a statute of limitations as such, but you need to report it within 60 days.
MS. VARDAS: Think of it that way, though?
MR. SULLIVAN: Yeah, you can. Certainly.
MS. VARDAS: So you want to report it right away?
MR. SULLIVAN: If you wait 60 days, you’re courting difficulties, though, as a practical matter.
MS. VARDAS: So don’t wait.
MR. SULLIVAN: Exactly.
MS. VARDAS: Put it in writing. Everything should be in writing, and we know that. You’ve got to cover your butt, let’s just face it. I’ll just say it on the air. Can I say that on the air, Ed, “Cover your butt”? Let’s advocate for ourselves. Okay, people? That’s what this show is about.
Tell us the types of benefits. You ready to go into that aspect of it? Talk about that. You got TT --
MR. SULLIVAN: Yeah. We’re going back to the alphabet soup.
MR. SULLIVAN: TTD. Temporary total disability. That’s when your authorized treating physician has you completely out of work saying, you know, “You can’t work at all due to this injury.”
MS. VARDAS: Okay.
MR. SULLIVAN: In that situation, the TTD rate or temporary total disability rate is 66 and two-thirds percent of your average weekly wage or two-thirds of your average weekly wage.
MS. VARDAS: And that’s 104 weeks?
MR. SULLIVAN: No. There is a 104-week limit on temporary benefits, meaning no matter what, you get hurt at work and this is -- again we’re getting kind of ahead of ourselves, but you have 104-week limit on that. The second type of temporary benefits is temporary partial disability, and that’s TPD, going back to the alphabet soup.
MS. VARDAS: All right.
MR. SULLIVAN: Temporary partial disability is when your doctor says, you know, “You can work. You can go back doing your old job and you can work, but you have restrictions,” meaning, for instance, the doctor says, “I don’t want you standing more than 20 minutes. I don’t want you lifting more than 20 pounds. I don’t want you doing any repetitive bending. I don’t want you to -- you can’t do prolonged sitting. You can’t sit longer than say an hour at one time and you need to break.” So he places restrictions on you.
Now, your employer at that point in time has a decision to make: Either they can accommodate those restrictions or they can’t accommodate those restrictions, and your rate for that is a little bit more complicated than the temporary total rate.
MS. VARDAS: I can imagine. You’re doing a certain percentage of your job.
MR. SULLIVAN: Yeah. Well, the way it works is you take 80 percent of your average weekly wage, and then you subtract out the amount you’re able to make within your restrictions. Let’s say they say, “We have a job at ten hours a week at minimum wage licking stamps and envelopes in the office.” Well, you subtract out the amount you make from the 80 percent of your average weekly wage and that will give you -- we’ll call it X. The insurance carrier owes you 80 percent of that number. It’s an 80/80 formula
Now, if they can accommodate your restrictions, we’re still using the 80/80 formula, but that amount that you can make within your restrictions is zero. The result is that it comes out real, real close to the 66 and two-thirds percent. It’s a little bit less, but not much.
MS. VARDAS: It seems like to me that from over the years I’ve heard people say or complain that their employer is not helping them. They want to go back to work because they need that income, and I don’t know -- is it --if they can’t go back to work, what’s the income at that point?
MR. SULLIVAN: Well, if your doctor says, “Hey, listen, you can go back to work with these restrictions: A, B, C, and D,” and your employer says, “I can accommodate those restrictions: A, B, C, and D,” and you don’t go back and at least try it, the insurance company is going to have a real good argument not to pay you.
MS. VARDAS: I see. And it seems to me there are a lot of complaints about the employer not even letting you. If you can’t do it at all, like 100 percent, they don’t want you doing it period.
MR. SULLIVAN: Well, that’s actually not as bad a situation as when they do say, “Yes, we can,” and the person actually can’t abide by those restrictions. But if the employer says, “Hey, we can’t accommodate those restrictions,” you’re essentially in a TTD status again, which is fine.
MS. VARDAS: Right, right. Well, that’s our sign we’re going to have to take a hard break and we’re going to come back and finish talking about the types of the benefits; right? Because we were finished there.
And you’re listening to Advocate for Success this Sunday on 1320 WBOB. We are going to be changing to a new station, a new dial, so mark it on your calendar. May 1st we are going to 1460 WZNZ.

(Intermission)
MS. VARDAS: And welcome back to Advocate for Success. I’m Elizabeth Vardas, your host, and thank you for joining us. I’ve been gone for a couple weeks, trying to get re-acclimated here.
I have in the studio again with me Mr. Michael Sullivan. He’s an attorney, and his firm is Sullivan and Hepler, H-e-p-l-e-r -- not Helper, but Hepler. You can find them on the web at SullivanandHepler.com in case you have any more questions after the show about workers’ compensation cases. They also do Social Security Disability cases; right?
MR. SULLIVAN: Yes. Ruth Ann does some criminal defense as well.
MS. VARDAS: Ruth Ann, yes. She didn’t join us today because this is not her forte; right?
MR. SULLIVAN: Correct.
MS. VARDAS: Right, right. That’s okay. We’ll have her back in; right? And we’ve been discussing workers’ compensation cases, specifically the types of benefits, so a recap would be the TTD, which is --
MR. SULLIVAN: Completely unable to work.
MS. VARDAS: And the TT -- go ahead.
MR. SULLIVAN: TPD, which is basically being released to work with restrictions.
MS. VARDAS: Okay. And we are about to jump into impairment benefits.
MR. SULLIVAN: Yeah. Impairment benefits -- well, let me backtrack by saying that temporary total, temporary partial, those benefits are paid prior to when you reach -- again going back to alphabet soup -- MMI, or maximum medical improvement. That’s the point in time where you’ve gotten as good as you can get medically. You’re not going to get any better. You’re not going to get any worse. Your doctor declares you’re now at maximum medical improvement. Temporary benefits cease at that point, and now you’re entitled to what’s called impairment benefits or permanent total disability benefits.
In most situations you’re going to be entitled to impairment benefits. Basically, what happens is once the doctor declares you at MMI, he then gives you a rating according to the Florida Impairment Rating Guide, and what that’s designed to do is give you a percentage of what you’ve lost whole body-wise. Typically, you know -- I’ll give you an example: back surgery. A typical back surgery is going to result typically in an impairment rating of between 5 and 8 percent, let’s say, depending on what your residuals are.
MS. VARDAS: So an arm and a leg can be worth a lot more obviously?
MR. SULLIVAN: Yeah, it just depends.
MS. VARDAS: Well, if you use it for your job?
MR. SULLIVAN: No. This is not occupation-specific. What this is is just a rating guide averaging what you’ve lost anatomically, and it’s for whatever type of work you do. It doesn’t matter.
Basically, once they assign an impairment rating, which is what it’s called, you are then entitled to get a certain amount of weeks for each 1 percent of impairment that you’ve gotten, and there’s a graduated rate. The first one is between 1 and 10. At 1 and 1, you get two weeks at 75 percent of your comp rate, or your TTD rate. As the impairment rating goes up, you get more weeks for each 1 impairment. Those are paid out automatically. You get those, you know, pretty much when you hit MMI.
The last type of benefit, and actually the most unusual one, is the permanent total disability benefit.
MS. VARDAS: Okay.
MR. SULLIVAN: What that is is basically getting a benefit or a cash payment for the foreseeable future, basically the rest of your working life now in Florida.
MS. VARDAS: So that depends on your age and how long you’ve been in that capacity?
MR. SULLIVAN: Well, you have to prove basically that you’re unable to do even a sit-down job within 50 miles of where you live. That’s the way that works, and it’s a very, very difficult standard to meet, but you do get into vocational factors. You know, how old are you? Are you able to adapt to other types of work?
MS. VARDAS: Well, I can see why you would need an attorney.
MR. SULLIVAN: And that’s what I said. Well, that’s why I wanted to talk about the theory of it. The theory is this is supposed to be real easy. You’re supposed to just not need an attorney. The theory behind this is that, you know, you get hurt, you get these benefits, and it’s just smooth sailing. Nothing could be further from the truth. It’s a very, very complex area of the law.
MS. VARDAS: What advice would you like to give to the listeners that may be going through this? It may happen. You never know. It happens all the time. When do they know when they are being snookered, I say, or whatever, by the employer that says, or “You can’t do that?” Because it is so complicated, and how are they going to know what their rights are?
MR. SULLIVAN: I tell people, “You need an attorney if you have a permanent situation. If this injury -- if you have a minor injury, you cut your finger, minor cuts, a broken finger, something that’s going to heal and most likely be a short-lived situation, you probably don’t need an attorney.
The sad part is that probably an attorney isn’t going to want to take your case, because you can’t get paid for delving into this complex a system without having a very, very serious injury. But if you do have a permanent injury, you do need someone to help you navigate through this thing, because you can’t do it yourself.
MS. VARDAS: No. What if they expect you to go back before your doctor releases you? Don’t you absolutely have to have a release from your doctor? Isn’t that kind of a saving piece of paper for people? I know that they tried to get my husband to go back to work before he was released from the doctor.
What can they say? What should they do?
MR. SULLIVAN: What you can do, again, is absolutely refuse to do it because if you do that, you are in danger of hurting yourself worse. You are going against doctor’s advice. I see a situation all the time where the company will want them back, and the patient will then go to their doctor and say, “Hey, listen, can you release me?” That’s really between the doctor and the patient at that point.
MS. VARDAS: I just thought of a question, too, or a scenario anyway. Most of the time when people get hurt, they’re going to go to their own doctor; right? Typically? But they don’t know that their employer may send them to their doctor through the workers’ comp, so there are two avenues.
MR. SULLIVAN: You cannot go to your own doctor and have the workers’ compensation carrier pay for it.
MS. VARDAS: Really?
MR. SULLIVAN: No. No, no, no. They will not. The only medical care --
MS. VARDAS: Well, see, I didn’t know that. A lot of people probably don’t know that.
MR. SULLIVAN: Absolutely. The only medical care you’re entitled to is treatment with an authorized treating physician. That is a doctor that they sent you to.
The exception to that is emergency care. A lot of times someone will have an injury, it will be an emergency, and they’ll go to the emergency room. Now, that’s covered and you can go to any emergency room. Typically it’s going to be the closest one to where you are at that time because it’s an emergency.
MS. VARDAS: Sure.
MR. SULLIVAN: Those services are paid for. But after that, after you’re released from that initial emergency care, you have to go through their doctors if you want them to pay for it.
MS. VARDAS: Right, right. And that can be a problem. And we were talking about that before we came on the show, the fact that that’s their doctors working for their insurance company, and it can be one-sided.
MR. SULLIVAN: It can be, and that really depends more on the doctor. There are good doctors, and there are bad doctors. There are doctors who legitimately don’t care who is paying them, and they’re going to do the best job they can to get their patient well. That’s what they’re supposed to do. That’s the Hippocratic Oath, and you hope that they’ll follow that.
MS. VARDAS: And what if they don’t? What if the patient has a problem with that doctor, that they’re not listening to them and --
MR. SULLIVAN: Again, this goes back to how bad the workers’ compensation system is in Florida. In that situation the only avenue the injured worker has is to request a one-time change. You have a right to a one-time change, but that’s a right you should exercise only in conjunction with your attorney because, again, it’s one time through the entire case. So if you have a bad injury and you’re not happy with your initially assigned doctor or PCP and you change out of him, then you’re stuck with whatever specialist they want to give you for the rest of the claim.
MS. VARDAS: And that could be it.
MR. SULLIVAN: So basically what I do is I execute that very, very sparingly, where I’ll request a one-time change, certainly not at the beginning of the case unless I have to, absolutely have to.
MS. VARDAS: Well, Michael, that’s our sign now we’ve got to take another quick break, and we’re going to be right back. You’re listening to Advocate for Success on 1320 WBOB and soon to be 1460 WZNZ. We’re going to be back. Starting May 1st that’s when we’ll do the changeover. Save the date. We’ll have the same lineup. We’ll see you in a bit.

ANNOUNCER: Welcome back to Advocate for Success with your host Elizabeth Vardas on ABC 1320 WBOB.
MS. VARDAS: Hello. Welcome back. You’re listening to Advocate for Success on 1320 WBOB, soon