Tag: employer

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.

 

 

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.”

Medicare Cuts Could Be Costly

April 14th, 2011 · · Uncategorized No comments - Tags: , , , ,

Dan Smith - Disability Attorney

Crisis was averted last week when President Obama and Congress agreed to cut $39 billion in the federal budget for the remainder of the fiscal year. President Obama also laid out an outline of how to decrease the deficit by $4 trillion over the next 12 years, which included ending the Bush tax cuts to incomes above $250,000 and reforming social security.

According to the Social Security Administration website, 54 million Americans will receive $730 billion in Social Security benefits and of those 54 million Americans, 8 million are disabled and in 2010, received $8.8 billion with an average of $1,068 in month benefits. Considering that there is expected to be almost twice as many elderly Americans in 2041 as there are now, talk of reforming Medicare and Medicaid might be worrisome to the public, but it is only logical.

In the last five years there has been a steady increase of applications for social security disability. President Obama has stated that he does not want to make any immediate changes to social security since the program is not a major contributor to the deficit, however, if he were to make changes to Medicare then the value in Social Security Disability for obtaining Medicare has to be looked into.

Republicans are against increasing taxes for the rich, and some such as Rand Paul of Kentucky, are putting forward an alternative. His Social Security Solvency Sustainability Act would gradually increase the retirement age to 70 by 2032. Right now, Medicare is for people aged 65 years and older, but people younger than 65 with disabilities or permanent kidney failure can also qualify for Medicare. If you are under the age of 65 then you are eligible for free Medicare hospital insurance if you have been entitled to Social Security disability benefits for 24 months. If the retirement age is increased then the resulting affect on Medicare could be a change in policy where elderly citizens don’t receive their full Medicare benefits until the age of 70 and those under 70 could possibly have to wait longer to receive their Medicare benefits as well.

Political, social, and financial reforms are all apart of life, as nothing remains constant forever. If any changes are to be made towards Medicare then it requires serious consideration of the effects that it could have on those that rely on Medicare to survive. Ample portions of my clients are those that are either on or fighting for Social Security disability benefits in order to receive Medicare. If Medicare, for whatever reason, were to be altered in a way that it made difficult to receive treatment then it would not only hurt the patient, but also the doctors that treat the patient and the government.

Hypothetically, say I had a 42 year-old construction worker who got hurt on the job and needed to be put on Social Security disability in order to sustain a living. He receives his monthly disability check, but because of recent changes to Medicare, he is unable to get the treatment he needs to recover completely and return to work. Without Medicare he will not be able to work at the level he did before, which means he will make less money to treat his persisting pain. Doctor’s visits and treatments could go unpaid all the while, diminishing his role as an active member of the human society.

There is light at the end of the tunnel, though, as some practices to save money are being put into form. The Social Security Administration is now sending all files electronically to the attorneys at the Coye Law Firm, which helps save money on stamps, paper, and envelopes. Attorneys at the Coye Law Firm have also been selected as a test site for holding hearings with the Social Security Administration through teleconferencing, which will help save money on gas and future wear and tear on a car that comes with driving back and forth to hearings.

The discussions of revamping Medicare is likely a topic that will be reproached for years to come on Capitol Hill, but the impact that a change could have on its existing and future members must be at the forefront of the negotiations.