Category: Medicare

Injured at Work: What Now?

July 19th, 2012 · · disability, Florida law, insurance, Medicare, personal injury, worker's compensation No comments - Tags: , , , , , , , , , , , ,
Dan Smith, Esq

Dan Smith, ligitation attorney

I was recently browsing the many discussion forums online about how Worker’s Compensation and Social Security Disability Insurance are related to each other, along with general questions about Worker’s Compensation. So, instead of letting these questions go unanswered, I figured I could explain some of them here.

The first major question was “How long until I receive my first Worker’s Compensation Check and how much will it be for?” Well, the truth is, it depends on the individual case. If it was simple, and you got immediate approval, you would start receiving payments after a 14-day processing period. But, generally, this is not the case. Many problems can arise while processing your claim, whether it is with your employer or their worker’s compensation insurance company. According to Florida law, if you are injured on the job, you should be eligible to receive between 66 and 80 percent of your average weekly wage.

Something that seemed to confuse a lot of people was whether or not you are responsible for your medical bills. The answer is no. All medical bills should be filed directly with your employers’ worker’s compensation insurance. However, if you choose a lump-sum settlement, the responsibility of your medical bills returns to you, even if your condition worsens after the settlement has been made.

Another question claimants seem to have was, “does my employer have any right to ask my doctor the duration that I will be out of work?” Unfortunately, the answer to this question is yes. When you file a worker’s compensation claim, you are essentially giving up any right to privacy about medical care. The insurance company will also be the one to choose your doctor, and therefore has a say in your course of care. The Florida Worker’s compensation program provides a minimum requirement of care that insurance companies have to carry out. Their goal is not to get you well; it is to comply with the law. However, your employer cannot legally put pressure on you to return to work before your situation calls for it. In relation to this, your employer cannot fire you, or pressure you to resign while you are recovering from injuries sustained on the job.

Many other injured workers want to know if they are eligible for any other benefits while on worker’s compensation. You can definitely apply for Social Security Disability Insurance while receiving worker’s compensation. However, according to the SSA, you can only receive up to 80% of your average weekly wages, so your social security payment would be adjusted based on how much you are receiving through worker’s compensation.

What about Unemployment Benefits? If you are filing a claim for Worker’s Compensation, you do not qualify for Unemployment. Unemployment benefits are for those who have the full capabilities to work, but can’t find a job. If you are filing or collecting worker’s compensation, it is because an injury is preventing you from being able to do your job, so in theory you can’t work.

“What happens if the injury I sustained will permanently prevent me from returning to my previous job?” There are vocational retraining programs that can help you gain the skills that will enable you to find another suitable job, if your injuries are severe enough to keep you off the job permanently.

And finally, when is the right time to hire a lawyer, when filing a worker’s compensation claim? Legally, you do not need an attorney to handle a claim, but if things get confusing or overwhelming, the support from someone who is an expert on the process can help greatly. Also, if you feel like you’re being taken advantage of, or something doesn’t feel right, getting help from a professional will only make things easier.
If you’re injured at work, your new job is to focus on healing. To get assistance with a worker’s compensation claim, contact your experienced, Central Florida worker’s compensation attorneys at the Coye Law Firm.

 

 

Let an attorney speak for you

August 18th, 2011 · · contract, disability, insurance, Medicare, personal injury, privacy rights, worker's compensation No comments - Tags: , , , , ,
Attorney Dan Smith

Dan E Smith - Worker's Compensation Attorney

I have a saying around the office regarding the likability of clients: “The clients I would most enjoy spending casual time with usually give the worse deposition testimony.”

This is generally because genuinely nice people want to be helpful and are under the misconception that the point of a deposition is to prove their case.  It’s not.  A deposition is a recorded personal statement about facts that will be argued in the event of a trial. It acts as an opportunity for the opposing legal team to gather information from the person giving the statement. Opposing counsel will then seek to use this information against defendants, witnesses, plaintiffs, or whoever is being deposed, in any way they can.

How many times have you watched a television cop show and asked yourself, “Did that guy really just say that?”  The Constitutional Fifth Amendment right against self-incrimination when questioned by police after being arrested has been around since the Supreme Court decision in 1966, Miranda v. Arizona. When arrested, you “have the right to remain silent,” and yet day after day people don’t use it. Some people may believe that they are invincible to prosecution, others may be ignorant of the workings of the legal system, and still others may falsely believe that in giving all the information they have they will receive some sort of leniency. In my experience with social security disability, worker’s compensation, and personal injury claims, I unfortunately witness this same tendency to over-reveal fairly regularly.

Whether it is ego or simply a polite eagerness to please, we as people think that if we talk enough, eventually we will convey our message to the party listening. We, for some reason, equate the quantity of words with the ability to convince others of the outcome we desire; but, this is not the case. Generally, the ability to convince someone is based on the structure and content of an argument, not the amount of words used. In legal matters specifically, it has more to do with how well a point of law is argued, not for how long.  How many times have you been persuaded from a position in which you felt confident by lengthy or informative arguments presented from the opposing side? For most of us, this is rare. Usually, when our positions are shaky on a topic we are able to be swayed one way or the other, however, a firm stance is less likely to be influenced. For an attorney, part of the job and one of the skills that we hone is this exact ability to sway those who are not firm in their stance and attempt to influence the perception of those who have already declared their position. This ability to skillfully argue a position is valuable and something which we study and practice on a daily basis.

In my personal experience, as well as situations I have heard about from other attorneys, there are times when great cases are destroyed because of a client’s well-meaning actions. In the heat of a moment, people have been known to send lengthy, wordy, and thorough documentation to the agency with which they have placed a claim (insurance, SSD, etc); detailing what the person believed was their entire case. While this person, who afterwards hires an attorney and becomes their client, may believe that honesty is the best policy and that being forthcoming to all involved is the right thing to do, the truth is that instead the client gave away something they should have kept. The information that they might reveal may not have been necessary to reveal or share, and in truth the client may have adversely affected their own case by revealing not only these details, but the nature of their personality, and their likeliness to react emotionally to various pressures.

While the client feels that their actions were justified, (“But Mr. Smith, it is all the truth!”) the attorney for the opposition will use every resource at their disposal to their advantage, including any direct correspondence to them, statements given to insurance agents or police, postings on social media such as Facebook or Twitter, and sometimes even the informal statements given to friends and relatives.

So please stand up, protest, write letters and argue your case, but do it to an attorney. Realize that the statements you want to make can and should be evaluated by an attorney on your behalf, to establish the validity and legalities of your claim. Once you’ve engaged counsel on your behalf you should make the most of your relationship with them to correspond with all others involved in your claim. Let the experience of legal representation work for you to fullest capacity, including knowledge of what information is required to be revealed to opposing counsel. Please, accept an attorney’s advice on how and when to “plead the Fifth,” and on how to appear and speak at a deposition, hearing, or in court.

The State of Assisted Living Facilities In Our State

June 7th, 2011 · · assisted living, current events, disability, Medicare, personal injury, wrongful death No comments - Tags: , , , , , , , ,

Dan E Smith - Personal Injury Attorney

The Sunshine State has long been a desirable locale for retirees. People come from all over the country to settle in and spend their final years in Florida’s warm climate, beautiful scenery, and relaxing lifestyle. Many people initially purchase a home when they arrive, but after a few years might find that their capacity to care for themselves becomes increasingly limited. As their ability to care for themselves (or their spouse) diminishes, some people may choose to relocate to an assisted living facility to receive the daily medical and physical care that they need.

Florida was once the “gold standard” for assisted living facilities (ALFs), providing an example of the best care in the nation for our country’s senior citizens. So I was disturbed to hear recent news put forth by investigations conducted by the Miami Herald and Miami NPR station WLRN about the current state of care in our state’s ALFs. According to their findings, thousands of our state’s senior citizens are at risk of serious neglect, abuse, and potentially wrongful death due to the “care” they may receive at certain sub-par ALFs around the state. Accusations range from prescription violations, to forceful restraint and physical abuse, to negligent supervision, to a gross lack of basic physical provisions – such as bathing, clean clothing and linens, and proper nutrition. The stunning and inexcusable list goes on and on.

With my areas of law practice involving topics sensitive to the needs of our senior citizens, this issue is near to my heart and makes my blood boil. How can a family member be betrayed in such an appalling way by an establishment they have entrusted to care for a loved one? How can state agencies allow taxpayer money to continue funding places where a generation of US citizens known for their hard work and integrity are mistreated in such ways?

The reason I bring up taxpayer money is this: if these ALF residents are disabled and receiving Social Security Disability (SSD) from the state, that money may be used to help pay their living expenses. If these residents are over 65 and eligible for Medicaid, Medicare, and/or Supplemental Security Income (SSI) their expenses at an assisted living facility may be at least partially (but in some cases entirely) covered under their government assisted income. So, when these facilities are accepting government funding, how can their state of care be so abysmal? How could state regulated agencies not place priority on investigating the personal injuries or potentially wrongful deaths which occur at these locations? How can these facilities be allowed to continue? 

While the agencies are being run through the social and political gauntlet for improving their regulations and navigating the hot water they have gotten themselves into, the real underlying problem remains in the forefront of my mind: people are being hurt. People are suffering. And I want to do anything in my power to work against this fact. Florida §429.28, also known as the Assisted Living Facility Resident Bill of Rights, explicitly states that residents of these facilities are entitled to all rights guaranteed by law. Every ALF resident has the right to live in a safe and decent environment, free from abuse and neglect. Every ALF resident has the right to exercise civil liberties and to have access to adequate and appropriate health care. Every ALF resident has the right to present grievances and recommend changes in policies, procedures, and services to governing officials without restraint, coercion, or reprisal.

If you know someone who has suffered personal injury, or any violation of these rights, at an assisted living facility in the state of Florida, or if you suspect that a family member has suffered a wrongful death due to negligence or poor care while being housed in an assisted living facility, please seek justice immediately.

Effects of Gov Scott’s Decisions on BP Claim and Disability

May 2nd, 2011 · · current events, disability, good faith, Medicare No comments - Tags: , , , , , ,

Dan Smith - Disability Attorney

In the last two weeks, two major decisions involving the Florida budget have come out of Governor Rick Scott’s office which are upsetting and concerning for many of my clients and Floridians in general: the Governor’s proposal to cut state Disability funding, and his decision not to have Florida participate in the Class Action Lawsuit against BP and DeepWater Horizon for the 2010 Gulf Oil Spill.

Earlier this month Gov. Scott placed an emergency order to cut funding for the Medicaid-waiver program by 15%. This program is offered by the Agency for Persons with Disabilities, which is over-budget by $174 million. Gov. Scott lifted that emergency order on the condition that the state Legislature can find a way to cover the gap. The House and Senate have resolved to work out this issue over the next two weeks. So, while the immediate danger to Medicaid funding may have been avoided, the bottom-line problem of insufficient funds remains.

The program, which supports independent living for over 30,000 Floridians and has a waitlist of almost 20,000 more, is a big concern for lawmakers as well as the people who rely on that funding. Tallahassee.com reports that without this funding, the executive director of Habilitation Management Services is afraid that it will “likely be a death sentence” for some people. “It’s real frustrating,” Gov. Scott said this week, “we’ve got to come up with a funding mechanism and a management team that’s going to make sure we can take care of this very vulnerable group of people but also make sure we live within our means.”

Meanwhile, on April 19 Gov. Scott announced that Florida will forgo joining the Class Action suit against BP for last year’s oil spill, which has outraged many. State Representative Rick Kreisman called it a “dereliction of duty” not to “make a claim for damages and other relief beyond what BP may pay through the Gulf Coast Claims Facility (GCCF).” The House is scheduled to meet with the GCCF’s attorney this week or next to discuss compensation distribution to individual Floridians, but they will not be discussing any compensation to Florida itself. A spokesperson for the State Attorney General’s office says that they agree with Gov. Scott that “filing a claim against BP is the best and fastest way to recoup losses” for the state.

Two days later, BP announced their voluntary creation of a $1 billion Environmental Restoration Fund to be divided between the effected states so the Gulf area can begin the process which Gov. Scott called “restoring our natural treasures to pre-spill status.” Florida’s piece of this pie is reportedly $100 million, but no one has any accurate estimate of the total cost it will take to repair the environmental damages. At least we know that it will be BP and not tax-paying Floridians who will foot the initial bill of repairing the effects of this disaster.

The Governor is an experienced businessman used to handling big numbers and big business, but he seems to be upsetting so many people who feel he is missing some of the small, yet important, details for Florida’s long-term financial and social goals.

The funding generated by a 15% decrease to the Medicare-waiver program may be a short-term fix for that program’s deficit, but it would likely be a band-aid over a bullet wound to the whole state budget. While BP is voluntarily providing funding to begin environmental recovery, the state could both take advantage of that funding and pursue any additional avenues for possible income – including claims through the GCCF.

The federal trial for the class-action lawsuit isn’t scheduled to begin until next February, and no one has an estimated cost for the litigation yet. Maybe this is the reason that Gov. Scott decided not to join in – to avoid encumbering the State with the additional up-front expense. I only hope that the money the State saves by not participating in this suit will help citizens by making its way into programs which Floridians already enjoy and are benefited by, like Medicare. There’s also the timeline to consider: if litigation doesn’t even begin until next year who knows when the State may actually receive any compensation? A claim through the GCCF may end up being much quicker.

Many of my clients are on SSD or recipients of Medicare and have concerns about the changes taking place in Tallahassee. Right now, all I can tell them is that we’ll have to see how the Legislature works things out in the next couple weeks. Of course, I myself am very anxious about the potential changes. My last blog, talked about the national attention that Medicare costs and cuts have received, but here we see the issue at our own front door – amongst our family, friends, and neighbors. While Florida’s natural beauty may be on its way to recovery, we must remember the damage that can be done to our community if responsible budget management is not balanced with basic human kindness.