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Statutory Defenses

In a workers' compensation case in Miami or South Florida, the employer or its insurance company will often assert Statutory Defenses in an attempt to avoid paying any benefits or to reduce the amount of benefits to be paid, based on the insurer's, the company's, or their lawyers' interpretation of Florida law and Chapter 440 of the Florida Statutes.

This legal tactic may delay benefits for legitimate injuries or payments for lost wages after a workplace injury.

Once a statutory defense is asserted, an injured person may need to seek the advice and counsel of a proven legal advocate to receive proper compensation after a workplace injury in Miami, Florida.

Find an Attorney to Fight Statutory Defenses in Workers' Comp Cases in South Florida

If you were injured on the job and filed a workers' compensation claim, but now your employer or the employer's insurer is asserting a statutory defense in an attempt to delay, dispute or deny your claim, contact the experienced attorneys at The Hoffman Firm to discuss your case. Our dedicated lawyers focus on workers' compensation cases and we can help you acquire the benefits that are lawfully available to you.

 [[$firm]] represents people in workers' compensation claims in Miami and all over South Florida, including Miami-Dade County, Broward County, and Palm Beach County, FL.

The attorneys at The Hoffman Firm represent injured workers for workers' compensation claims in the cities of Miami, Fort Lauderdale, West Palm Beach, Miami Beach, Homestead, Aventura, Hallandale Beach, and Boynton Beach, as well as other communities throughout South Florida.

No matter if you were injured in a slip and fall at work, other type of injury, or you are seeking medical benefits or lost wages, call us today at (305) 940-2307 to discuss your case.

Information about Statutory Defenses in Workers' Comp Cases in Miami

An employer or an employer's insurer or their lawyers may raise a statutory defense, based on their interpretations of Florida statutes. Statutory defenses include:

Misrepresentation in Workers' Compensation Cases

When an objective misrepresentation has been made, the ultimate question involves intent, that is, whether the claimant:

  • Subjectively believed or intended the statement, when made, to be false, and
  • Whether the claimant subjectively believed the statement would assist him in securing workers' compensation benefits

Providing false information following a compensable accident will disqualify a claimant from receiving benefits.

The law as written in the Florida Statutes, Section 440.09(4)(a) — the provision of the Workers' Compensation Law allowing for the forfeiture of benefits — is predicated on a specific intent to deceive for the specific purpose of securing compensation benefits. (If no such intent is present and sufficiently proven, this statutory provision will not result in forfeiture of workers' compensation benefits — even where the claimant might be subject to criminal prosecution for the same offense.)

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Fraud Defense in Workers' Compensation Cases

Section 440.105 of the Florida Statutes is frequently referred to as the “fraud defense.” In many cases, the employer or insurer will allege that the employee knowingly and intentionally committed fraud in order to obtain workers' compensation benefits.

Section 440.105(4)(b) prohibits any person to “make, or cause to be made, "any false, fraudulent, or misleading statements for the purpose of obtaining workers' compensation benefits. (F.S. § 440.105(4)(b)(1) [2006].)

An employee found to have knowingly or intentionally committed one of these prohibited acts is not entitled to compensation or benefits under the workers' compensation statute. (F.S. § 440.09(4)(a) [2006].)

Whether a claimant has violated F.S. § 440.105 is a factual determination. Two questions must be answered. The first is whether the worker made, or caused to be made, false, fraudulent or misleading statements. The second is whether the statement was intended by the worker to be for the purpose of obtaining benefits.

Section 440.105(4)(b)(1) does not require that the misrepresentation be material in actuality; rather, the relevant inquiry is whether a claimant's misrepresentation — a misrepresentation the claimant thought would have a material impact on his case — was made with the intent to secure benefits. (F.S. § 440.105(4)(b)(1) [2006].) 

The policy behind these provisions is that in order to be self-executing as intended by law, the Florida Workers' Compensation statute requires everyone to be truthful, responsive, and complete.

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F.S. Section 440.092 — Rule for "Going and Coming"

Section 440.092 of the Florida Statutes is often called the “going and coming” provision of the law.

This general rule provides that “[a]n injury suffered while going to or coming from work is not an injury arising out of and in the course of employment, whether or not the employer provided transportation if such means of transportation was available for the exclusive personal use by the employee, unless the employee was engaged in a special errand or mission for the employer.” (F.S. § 440.092(2).)

In other words, an injury incurred while walking, driving or commuting to or from work when not engaged in work is generally a legitimate statutory defense.

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Intoxication as a Defense to Workers' Compensation

The employer will often assert a statutory defense that the worker is not entitled to workers' compensation benefits due to his or her intoxication. Under this rule, even if a claimant's injuries arose out of and in course and scope of employment, compensation was barred due to the claimant's intoxication. “Compensation is not payable if the injury was occasioned primarily by the intoxication of the employee; by the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician.” (F.S. § 440.09(3) [2006].)

Florida law also contains a presumption of intoxication (providing injury is presumed to have been occasioned primarily by intoxication of the employee where a test confirms the presence of a drug or alcohol after an accident.) (See F.S. 440.09(7)(b).) A statutory defense may apply, but the employer or insurance carriers must “establish, by the greater weight of the evidence, that the work-related injury was occasioned primarily by the intoxication of the employee. (See F.S. § 440.09(3).)

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The 120-Day Rule under F.S. § 440.20(4)

Section 440.20(4) of the Florida Statutes provides that where a carrier is uncertain as to its obligation to provide benefits, it may provide such benefits under a reservation of rights, but then must immediately begin an investigation.

If, however, the carrier fails to deny compensability of an injury within 120 days after the initial provision of benefits for an injury, it waives the right to deny compensability of this injury “unless the carrier can establish material facts relevant to the issue of compensability that it could not discover through reasonable investigation within the 120-day period.” (F.S. § 440.20(4) [2011].)

Under the 120-day rule of F.S. § 440.20(4), if the employer first provided benefits for an injury, the employer is deemed to have timely denied compensability of the injury for which it provided benefits — i.e., within the 120-day period immediately following the initial provision of benefits for the specific injury.

The necessary analysis may also include a determination of whether the “carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120–day period,” which is a statutory exception to the 120-day rule. (See F.S. § 440.20(4) [2011].)

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Late Notice for Reporting an Injury for Workers' Compensation

Section 440.185(1) of the Florida Statutes, enacted in 2002, requires that a claimant advise his or her employer of an injury within 30 days of either the date of the injury or the date of the initial manifestation of the injury. Under the plain language of the statute, there are two separate dates from which a report of injury may be timely made and the use of either date is sufficient for timely compliance.

The date of injury in a case of repetitive trauma is generally deemed to be the last date of exposure to the trauma. (See Rose v. Geico, 90 So.3d 886, 888 [Fla. 1st DCA 2012], citing Troche v. Geico, 966 So.2d 460, 461 [Fla. 1st DCA 2007].)

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Major Contributing Cause

The coverage that is available to an injured worker if medical treatment is required is defined in the Florida Statutes, § 440.09(1)(b), as the combination of a compensable workplace accident and a pre-existing disease or condition. According to this statute:

If an injury arising out of and in the course of employment combines with a pre-existing disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains the major contributing cause of the disability or need for treatment.

Thus, it is no longer enough for an injured worker to show that a workplace accident is causally related a particular injury or that the accident contributed to the need for treatment. Coverage is available under the statute only if the workplace accident “is and remains the major contributing cause of the disability or need for treatment.”

Although the phrase “major contributing cause” is not defined in Florida's Workers' Compensation Law, the courts have found the meaning of this phrase is sufficiently clear from the language of F.S. § 440.09(1)(b). 

If there are two causes for a disability or the need for treatment, the workplace accident must be the “greater” of the two causes. Section 440.09(1)(b) employs the definite article “the” to modify the phrase “major contributing cause.” Hence, the statute is not satisfied merely by showing that the workplace accident is among the major causes. The courts have found that the use of the term “the” plainly signifies that the workplace accident must be greater than any other cause contributing to the disability or need for treatment.

Given this interpretation of the phrase “major contributing cause” in F.S. § 440.09(1)(b) [Supp.1994],  the courts have concluded that the coverage is available if the workplace accident contributes more to the disability or need for treatment than any other single cause. This does not mean, however, that the workplace accident must be a greater cause than all other causes combined. Such an interpretation would impose a requirement beyond that which is stated in the statute.

So the courts have not read into § 440.09(1)(b) a requirement that the industrial accident must account for more than 50 percent of the need for benefits. Instead, by the terms of the statute, the workplace accident must be greater in significance than any other single cause.

Although the major contributing cause standard in § 440.09(1)(b) requires the judge of compensation claims to determine relative degrees of causation, the method of proving causation has not changed. Section 440.09(1) states that “[t]he injury, its occupational cause, and any resulting manifestations or disability shall be established to a reasonable degree of medical certainty and by objective medical findings.” This language was not contained in the previous version of Section 440.09, but it accords with and confirms to the existing law on the subject of causation.

The phrase “major contributing cause” is also used in § 440.02(32), Florida Statutes. This section provides that “[a]n accidental injury or death arises out of employment if work performed in the course and scope of employment is the major contributing cause of the injury or death.”

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Statute of Limitations

Section 440.19 of the Florida Statutes establishes limits as to how long a person has to file a petition for benefits under the state's workers' compensation laws.

Under § 440.19(1), most petitions for workers' compensation must be filed within two (2) years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.

Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment. This tolling period does not apply to the issues of compensability, date of maximum medical improvement, or permanent impairment.

The failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits. If a claimant contends that an employer or its carrier is estopped from raising a statute of limitations defense and the carrier demonstrates that it has provided notice to the employee in accordance with applicable laws (F.S. §§ 440.185 and 440.055.

When recovery is denied to any person in a suit brought at law or in admiralty to recover damages for injury or death on the ground that such person was an employee, that the defendant was an employer within the meaning of  [Chapter 440], and that such employer had secured compensation of such employee under this chapter, the limitations period set forth in this section shall begin to run from the date of termination of such suit. However, in such an event, the employer is allowed a credit of his or her actual cost of defending such suit in an amount not to exceed $250, which amount must be deducted from any compensation allowed or awarded to the employee under this chapter.

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Additional Resources

Statutory Defenses under Florida Statutes — Several Subsections of Chapter 440 of the Florida Statutes address the statutory defenses allowed, under Florida laws, when a person makes a workers' compensation claim, including:

  • Misrepresentation — F.S. § 440.09(4)(a)
  • Fraud — F.S. § 440.105
  • Going and Coming — F.S. § 440.092
  • Intoxication — F.S. § 440.09(3)
  • 120 -Day Rule — F.S. § 440.20(4)
  • Late Notice — F.S. § 440.185(1)
  • Major Contributing Cause — F.S. § 440.09(1)(b)
  • Statute of Limitations — F.S. § 440.19

Miami Workers' Compensation Attorney for Statutory Defenses

If you were injured on the job and your employer or your employer's insurance carrier is attempting to invoke a statutory defense that will deny you workers' compensation benefits, contact The Hoffman Firm to discuss your case. Your employer or the insurance company should notify you of your rights and provide treatment through a workers’ compensation physician.

Employers are required by law to address workplace injuries proactively and provide adequate care for persons injured on the job, but sometimes the employer or its insurer claims a statutory defense in an effort to avoid paying a workers' compensation claim no matter what type of workplace injury you suffered.

If you or a family member were injured at work, contact The Hoffman Firm today to schedule a free consultation. Call the in the Miami area at (305) 940-2307 today.

This article was last updated on Monday, May 23, 2016.


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Evan A. Hoffman

Evan A. Hoffman

Mr. Hoffman’s philosophy is "our knowledge and experience is your best defense." He has been a featured author on criminal law issues such as driving under the influence, domestic violence and illegal searches.

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