Interestingly, when it comes to workers’ compensation benefits, Florida law protects certain undocumented workers.

Florida offers three types of wage-loss benefits to injured workers: (1) Permanent Total Disability (§440.15(1), Fla. Stat.); (2) Temporary Total Disability (§440.15(2)); and (3) Temporary Partial Disability (§440.15(4)). To qualify for any of these benefits, the employee bears the burden of proving that the inability to obtain employment—or to earn pre-injury wages—is the result of physical limitations caused by the industrial accident, rather than general economic conditions or a lack of available work. City of Clermont v Rumph, 450 So. 2d 573 (Fla. 1st DCA 1984).

Because undocumented workers are prohibited under both federal and state law from working legally in the United States, they are, by definition, unable to meet the burden of proving an ability to obtain lawful employment.

Surprisingly, Florida has adopted an equitable approach to this issue. In HDV Construction Systems, Inc. v. Aragon, 66 So. 3d 331 (Fla. 1st DCA 2011), the First District Court of Appeal explained it as follows:

Although there is no shortage of debate that can be had on the issue of illegal labor and its effect on our state, there is no dispute that the Florida Legislature has expressed an unyielding, textual intent that aliens, including those who are illegal and unlawfully employed, be covered and compensated under the Florida Workers’ Compensation Law. See § 440.02(15)(a), Fla. Stat. (2007) (defining “employee” to include any person who receives remuneration from an employer, including aliens, whether “lawfully or unlawfully employed”); see also Safeharbor Employer Servs., Inc. v. Velazquez, 860 So.2d 984 (Fla. 1st DCA 2003) (“Therefore, we conclude that the Florida legislature’s right to enact workers’ compensation benefits for illegal aliens is not preempted by federal action.”). Indeed, the purpose of workers’ compensation law is to place on industry, rather than the general taxpaying public, the expense incident to the hazards created by industry. Gore v. Lee County Sch. Bd., 43 So.3d 846, 849 (Fla. 1st DCA 2010) (explaining workers’ compensation legislation is designed to relieve society in general of expenses created by industry). Moreover, because the employer stands to benefit and profit from its employment of labor, and further is in the best position to avoid the risk of loss, the courts have uniformly recognized the impropriety of foisting on society the costs of a “broken body” and “diminished income” created by industry. Mobile Elevator Co. v. White, 39 So.2d 799, 800 (Fla.1949).

This broad pronouncement is subject to an important qualification. In Cenvill Development Corp. v. Candelo, 478 So. 2d 1168 (Fla. 1st DCA 1985), the court held that an employer who hires an undocumented worker is precluded from asserting the worker’s immigration status as a defense to avoid liability for disability benefits—but only where the employer knew or should have known of the worker’s true status. As the court explained, this rule ‘prevents unauthorized aliens from suffering at the hands of an employer who would knowingly hire the alien and then conveniently use the unauthorized alien status to avoid paying wage-loss benefits.’ Id. at 1170.

In HDV, the Judge of Compensation Claims concluded, based on the authority of Cenvill Development Corp. v. Candelo, 478 So. 2d 1168 (Fla. 1st DCA 1985), that, because the Employer knew or should have known of Claimant’s illegal status prior to his injury, but continued his employment nonetheless, the E/C was precluded from using Claimant’s illegal status as a defensive measure — requiring the E/C to respond to the disability imposed by Claimant’s significant and objectively demonstrated work-related injuries and physical restrictions, and his vocational limitations which include, but are not limited to, his unauthorized work status. The First DCA affirmed the lower court’s decision.

In our initial client interviews with undocumented workers, as well as in our discovery, we focus on establishing that the employer knew or should have known of the employee’s immigration status. For example, in our initial formal document requests, we ask the employer to produce ‘All Form I-9s signed by the claimant and the employer.’ The Form I-9, or Employment Eligibility Verification, is a mandatory government form that employers must complete and retain to confirm the identity and work authorization of every individual hired in the United States. Both the employee and employer are required to complete the form, which serves as proof of compliance with laws prohibiting the employment of unauthorized workers. The employer’s failure to ensure this form was completed indicates that it knew, or at minimum should have known, that its employee was undocumented. This is not the only way of demonstrating the requisite evidence.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

There are two types of temporary indemnity benefits, Temporary Total Disability (TTD) and Temporary Partial Disability (TPD). Section 440.15(2)(a) describes TTD as being a “disability total in quality but temporary in quality….,” while TPD, described in section 440.15(4)(a), is the monetary benefit paid when the person’s disability is less than total, meaning the injured employee is capable of performing some type of physical work activity.

TTD is paid at 2/3 of the injured employee’s average weekly wage (AWW), while TPD is “80 percent of the difference between 80 percent of the employee’s average weekly wage and the salary, wages, and other remuneration the employee is able to earn postinjury….” For example, if AWW is $1,000, the TTD and TPD payments are $666.70 and $640.00, respectively. The good news is that workers’ compensation indemnity benefits are not taxable.

Temporary indemnity benefits end once the injured employee is placed at maximum medical improvement (MMI), defined in 440.02(10) as follows: “‘Date of maximum medical improvement’ means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” (Temporary benefits also end as a matter of law after 260 weeks of payments. Typically, MMI is reached well before 260 weeks, or 5 years, of temporary payments are made.)

Fights often ensue over disability status, partial and total, and MMI. Because the insurance carriers get to select the treating doctors, those handpicked doctors typically offer opinions in these areas, among others, that are helpful to the carriers. While there are ways to fight back, the options are limited by the system’s decided slant in favor of employers and carriers on most points.

Once MMI is reached, injured employees may be entitled to two types of monetary benefits: Permanent Impairment Benefits (PI)(440.15(3)) and Permanent Total Disability Benefits (PTD)(440.15(1)).

Permanent Impairment benefits are payable after MMI where the employee is left with a permanent impairment rating. “Permanent impairment” is defined in 440.02(31) as: “any anatomic or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury.” The impairment rating is determined in accordance with the Florida Impairment Guide. The amount payable is based on a formula contained in the statute. Typically, it is a small amount of money for a short period of time. Not every injured worker is assigned a permanent impairment rating.

PTD pays more over a longer period of time. Except in cases with catastrophic injuries, it can be difficult to qualify for PTD. In most cases, the entitlement to PTD ceases when the employee reaches age 75.

There are two statutorily defined ways to qualify for PTD benefits. The first is by sustaining one or more of these presumptively qualifying injuries:

1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;

3. Severe brain or closed-head injury as evidenced by:
a. Severe sensory or motor disturbances;
b. Severe communication disturbances;
c. Severe complex integrated disturbances of cerebral function;
d. Severe episodic neurological disorders; or
e. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.;

4. Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands; or
5. Total or industrial blindness.

“In all other cases, in order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence, due to his or her physical limitation.” Section 440.15(1)(b).

It wasn’t always this tough to qualify for PTD.

When our law firm first began handling workers’ compensation cases, the listed injuries, like now, were an option, however, the alternative method of qualifying was decidedly friendlier to injured workers than the current standard. Until 1994, a claimant would qualify for PTD by demonstrating an inability to perform “light duty work uninterruptedly.” The current capacity is sedentary duty, which is harder for claimants to overcome than the light duty standard. The particulars of the various standards are outlined in section 404.1567 of the Code of Federal Regulations:

(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

(c) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.

(d) Heavy work. Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.

(e) Very heavy work. Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, we determine that he or she can also do heavy, medium, light and sedentary work.

Simply put, an individual is not PTD under current law if he or she can at least perform sedentary work. Before 1994, the standard was light duty. Social Security Disability (SSD), the Florida Retirement System, and most private disability insurance policies adhere to the light duty standard.

In 1994, the Florida Legislature replaced the light duty standard with a formula mirroring the Social Security Disability (SSD) system. Moreover, those who qualified for SSD from their work-related injuries, were presumptively considered PTD under the workers’ compensation system.

This standard was viewed by then-Florida Governor Jeb Bush and his corporate constituents as being too easy for claimants. Hence, in 2003, the Republican-controlled Florida Legislature amended the standard once again, replacing the SSD formula with having to demonstrate the inability to perform part-time sedentary employment within a 50-mile radius of the employee’s residence.

The legislation proved so unreasonable that it was revisited a few years later. The result is our current law, which does not include the “part-time” element. Because a part-time job may be 20 hours or less a week compared to a 40-hour full-time workweek, the difference is substantial.

Even still, today’s PTD standard is hard to reach. Very few injured workers are given permanent restrictions by their workers’ compensation authorized doctors that fall below the sedentary duty threshold.

However, all is not lost.

Eligibility for PTD benefits is also achievable by establishing (1) permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search, or (2) permanent work-related physical restrictions that, while not alone totally disabling, preclude a claimant from engaging in at least sedentary employment when combined with vocational factors. Section 440.15(1)(b), Fla. Stat. (2011); Blake v. Merck & Company, 43 So.3d 882 (Fla. 1st DCA 2010).

In assessing a workers’ compensation claimant’s entitlement to permanent total disability (PTD) benefits, factors such as claimant’s actual physical impairment, work history, education and training, ability to do and obtain other work, and age may be considered. Section 440.15(1)(b), Fla. Stat. (2011); Shaw v. Publix Supermarkets, Inc., 609 So.2d 683 (Fla. 1st DCA 1992). Even if the Claimant’s physical limitations alone do not preclude him from engaging in sedentary work, the combination of his physical limitations and vocational abilities render him permanently and totally disabled. Ferrell Gas v. Childers, 982 So.2d 36 (Fla. 1st DCA 2008) Other factors that can come into play include:

• difficulty sleeping at night due to accident-related pain.
• frequent breaks at work, sometimes to the point of having to lie down, to relieve accident-related pain.
• medications causing drowsiness and decreased mental acuity.

The more of this type of evidence that can be presented to the JCC, who is the trier of fact, the better. Few employers are willing to accommodate employees against those who are more able-bodied. Vocational experts can explain these things to the JCC, who already knows them by experience and intuition, but must have the record evidence to support any final decision.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.