Category: worker’s compensation

Worker’s Compensation Alert: What you Should Know About Florida Statute 440.34(3)

December 28th, 2012 · · Florida law, worker's compensation No comments - Tags: , , , , , , , , , ,
Attorney Dan Smith

Dan E Smith – Worker’s Compensation Attorney

Florida Statute 440.34(3) is a statute dealing with the payment of costs after a worker’s compensation case is processed. Enacted in 2003, this statute was amended in 2009 to supposedly clarify vague language. Listed below are the 2003 and 2009 versions of this statute:

2003:

(3) If the claimant should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the employer the reasonable costs of such proceedings, not to include the attorney’s fees of the claimant. A claimant shall be responsible for the payment of her or his own attorney’s fees, except that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer

2009:

(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees. A claimant shall be responsible for the payment of her or his own attorney’s fees, except that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer

The original version explained that if a claimant won their case, they were entitled to have their attorney fees covered by the carrier. The ambiguity arises with what happens when an employer/carrier wins the case. The 2009 amendment makes this very clear, as it states the employee would then be responsible for the employer’s attorney fees.

Legally, this change was not intended to penalize anyone, but make the prevailing party “whole.” Now I could understand if the change in language was a mistake, but research shows it was not, making this law a complete abuse of power.

 

What this law does is force an injured employee to pay back thousands of dollars in attorneys’ fees if they lose their case. This is a ridiculous expectation, as if someone was injured at work, they’re probably not in any condition to work, let alone pay for an attorney. Because of this, there is an immanent threat of paying for all of the litigation fees, which scares many people out of filing suit. This small amendment is imposing an unconstitutional restriction on a person’s right of access to courts.

With all of this taken into consideration, I wonder how it is fair to expect this of an injured person, especially if they are seeking benefits in good faith. For example, I read about a case where a woman was clearly injured at work. She was set to receive worker’s compensation benefits, but there was a discrepancy between two medical professionals: one said she was permanently totally disabled, another said it wasn’t a total disability. Because of this discrepancy, she dropped the case, after which her employer petitioned for her to cover $16,000 in litigation fees. By dropping her case, her employer was technically the prevailing party, despite the fact that her injury was decidedly at the fault of her employer, and that she clearly could not work.  The courts still required her to pay $11,834.35 to her employer, per the stipulations in Statute 440.34(3).

Confusing laws, like Statute 440.34(3), are the reason why if you are filing a worker’s compensation claim you need an attorney on your side to help work through the details. The attorneys at the Coye Law Firm don’t want you to be afraid to seek the benefits you deserve, and we will work to get you the most compensation to the fullest extent of the law. If you or a loved one needs to file a Worker’s compensation claim, contact us today.

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.

Expert Medical Advisors Could Be an Injustice to the Florida Worker’s Compensation System

July 11th, 2011 · · current events, disability, EMA law, insurance, worker's compensation No comments - Tags: , , , , ,

Dan E Smith - Worker's Compensation Attorney

As a passionate worker’s compensation attorney, I am dedicated to fighting for justice for people injured on the job. The intent of worker’s comp insurance, provided by employers to their employees, is to ensure that any person injured in the performance of their job duties is expediently compensated for medical expenses or lost wages suffered due to the injury. According to FL §440.015, a worker’s comp claim should be a fairly straightforward process. It is frustrating to me, as an ardent believer in corporate responsibility and social justice, to see anyone – but especially one of my clients – become entangled in complications unnecessarily injected into this process. Let’s talk specifically about Expert Medical Advisors (EMAs) for a minute.

Let’s go step-by-step through a worst-case hypothetical scenario for a possible worker’s comp claim.

First, someone is injured at work. The injured person makes the report to the employer and is referred to the employer’s worker’s compensation doctor for necessary medical attention. This doctor, under the assumption of being paid by the worker’s compensation insurance, will use their medical knowledge to recommend the best course of action he or she sees that the injuries require. In this hypothetical, let’s imagine that this person’s injury is severe enough that the doctor recommends an expensive medical procedure or long term treatment.

At this point, the insurance adjuster – who may have no more medical training than a high school graduate – may make an arbitrary decision to deny the injured person’s worker’s compensation claim. In the worst of situations he or she may do so because they simply do not see the procedure as “necessary,” but in the best of cases he or she may have consulted with a doctor in order to make this decision. Never mind that this doctor may have only reviewed the case on paper and never met with the client, or may be located out of state and not licensed to practice medicine in Florida. The doctor may not even be in the same specialty field as the treatment recommended. Maybe the worker’s compensation doctor who physically examined the injured person has recommended an orthopedic surgery and the doctor reviewing the case for the insurance adjuster is a gynecologist; it doesn’t matter as long as they have graduated from medical school and have a license to practice medicine somewhere they are allowed to report back to the insurance adjuster with their professional medical opinion.

At this point, since the claim has been wrongfully denied, an injured person can still file a Petition for Benefits. Either party can hire an Independent Medical Examiner to make a judgment on the person’s health and necessity of the suggested medical procedure. Typically, the injured person cannot afford to hire this person, so after a long wait, the insurance carrier may do so. In an ideal situation, this medical examiner will see that the procedure is medically necessary, even if it is expensive, and will advise the parties and adjuster of his or her decision. But, unfortunately there is nothing really “independent” about this medical examiner, as they have been hired by the insurance company. The independent examiner can also give a bogus reason why the medical course of treatment is not necessary. He or she might say that the injury existed before the person was injured at work, or that it has been caused by a degenerative physical state and cannot be attributed to the at-work injury. Any number of reasons can be given in order to further bury the injured person’s worker’s comp claim.

Unfortunately, the situation in place prevents the judge from being a judge. The EMA law prevents the Justice from taking into evidence additional clarifying statements from the injured person about the state of their health and cause of the injury, or from considering prior medical records and history. Instead, EMA law specifies that at this point an Expert Medical Advisor (EMA) be called in to make the final decision about the recommended course of treatment for the injured person. Typically, the EMA will only be required to examine the patient once before making his or her final determination on the necessity of the recommended medical procedure. If the EMA confers with the independent medical examiner’s previous assessment, and reports to the court that the procedure is unnecessary, this is the final determination of the client’s worker’s compensation claim. Denial of the claim in its entirety. There are options to appeal this final determination, but they are limited.

So, sometimes it doesn’t matter what the original worker’s compensation doctor advises. It doesn’t matter what evidence the injured person has to support their claim, or to invalidate the opinions of the medical examiners. It doesn’t matter that the judge may be sympathetic to the injured person’s plight, or that the medical examiners are not intimately familiar with the injured person’s case, the injured person’s hands can be tied by the final word issued by the Expert Medical Advisor.

Of course, I understand the argument that this system has been put in place to prevent fraudulent worker’s compensation claims. I understand the argument that it also prevents judges from considering faulty or outdated medical knowledge, or the misinformed medical testimonies of attorneys, as supporting evidence for worker’s compensation claims which may be unjustified. I understand that this law exists so that each person who has been denied in a worker’s comp claim can have their case evaluated by a court-appointed expert. Of course, I believe that each injured person is entitled to have their claim examined by an expert upon its denial, and of course I do not believe that judges should be expected to be experts in both the vast areas of legal and medical knowledge. But, I do believe judges should be allowed to be judges.  It simply makes me furious when this existing system allows insurance companies to deny claims in order to pay more attention to their profit margin and effects on their bottom line than the quality of coverage they provide for real-world people, with real-world suffering.

Florida legislators should have their attention called to this situation. It is a legislative injustice to disallow the judicial system from providing recompense to injured people based on arbitrary or under-informed so-called “experts.” Maybe it’s because I have a heart which is sensitive to the struggles of the underdog,  maybe it’s because I am afraid anytime I see people swallowed by cracks in a system which is intended to protect them, or maybe it’s because I simply can’t stand to see injustice occur to the citizens of my home state. Whatever the reason for my personal frustration, I am reminded of the eternal truth in the immortal words of Dr. Martin Luther King, Jr.: “Injustice anywhere is a threat to justice everywhere.”