Tag: government

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.

Why it’s a great thing that HB 243 did not pass

April 27th, 2012 · · current events, Florida law, litigation No comments - Tags: , , , , , ,
Dan Smith, Esq

Dan Smith, ligitation attorney

Recently the Florida state Senate prevented a change to the way litigation processes are performed that would have had a lasting and rippling impact across the state in more ways than projected. Thank goodness it didn’t pass. The average citizen may not appreciate the effects it would have on every aspect of the legal system, so I’d like to get into a few details with you about what the “Expert Testimony Bill” (HB 243) would have meant for Floridians.

When attorneys call experts to testify in court, they are held to standards to prove to the court that the “expert” is qualified to speak on the subject as an actual expert. Since 1923 Florida has abided by a set of standards for this proof known as the Frye standard, which requires that expert testimony be based on information that is generally accepted in the expert’s field. HB 243 would have changed the requirement of proof to be in line with a standard known as the Daubert standard instead.

The Daubert standard is a more complicated, multi-part test in which every judge has to test the scientific basis for the expert’s opinion before the jury can hear it as evidence. In this situation judges become expected to be intimately familiar with various scientific studies; in effect, turning them into mini-scientists.

There are several problems with the replacement of the Frye test by the Daubert standard. For starters, it would allow companies who choose to be negligent in their responsibilities to injured people to continue eliminating the rights of individuals. Companies with negligent safety procedures or slip-shod policies already try to place the blame for the cost of litigation on the injured victims. Companies go so far as to call the lawsuit of someone who has been injured by their negligence “frivolous.” These irresponsible business practices let companies get away with relying on the assumption that an injured person won’t be able to afford litigation or that the lawsuit can be subdued by the immense cost and settled out of court instead. This means an injured victim will likely receive far less than they could have been awarded in Court.

Under the Daubert standard more stringent regulations for acceptance of expert testimony would have given these large companies another tool in their arsenal to delay litigation, increase its potential cost, or intimidate an injured person with the potential snag that experts called on behalf of the victims may never even be heard by the jury. This underhanded move by large businesses with already questionable policies would have allowed the denial of full justice to many people who receive life-altering injuries after accidents.

Big businesses may have tried to get away with more, and although it seems like it might have been a positive for businesses overall, HB 243 would have increased the cost of litigation for all businesses in the long run. Increased court costs would be detrimental to honest and responsible medium-sized or small businesses throughout the state faced with litigation procedures. Most of these businesses which are sued have little choice in their litigation strategy, and this should be a big consideration toward the justice they will receive as well.

Another more universal and fundamental problem with changing expert testimony requirements across all types of court cases is that power is removed from the jury’s hands and is placed into the hands of judges. When a judge is expected to know whether or not an “expert” is indeed considered an expert in their field by that field’s standards of scientific practice it can prevent the jury from hearing all the potential expert testimony and deciding for themselves based on all the information. If the information is based on general principles accepted in the expert’s field, then the jury should decide which expert they believe, not the judge.

The community will end up suffering from an increased burden of cost for this change as well. If a person cannot afford the litigation process at all, or does not receive a settlement that allows them to be self-sufficient long-term, the person could end up going on social support systems such as Medicare, Medicaid, Social Security disability, or Supplemental Security Income. This displaces the onus of a person’s pain and suffering from the company whose negligent procedures were the cause of the disability, back onto the taxpayers of the community.

Insurance companies and big businesses will continue to make it difficult for those with legitimate claims to seek reimbursement for their injuries. The rippling effect of increased cost, decreased payout, and more difficult burdens during the legislative process for normal citizens and taxpayers would have ended up spreading from the companies themselves, through the court system, and back out into the pockets of other taxpayers. If HB 243 had been allowed to be implemented, regular Floridians may not have noticed an immediate difference, but they certainly would have been affected. Personal liberty, corporate responsibility, and judicial process affects each of us every day, and changes to one will unavoidably cause changes to the others whether we are immediately aware of it or not.

Universal Healthcare Could Be Demise of Workers’ Compensation

March 31st, 2011 · · Uncategorized No comments - Tags: , , , , , ,
Dan Smith

Daniel E. Smith, Workers Compensation Attorney

Barack Obama ran his presidential election on the promise of healthcare reform. It is estimated that upwards of 50 millions Americans are uninsured in the United States. That is a staggering number when you think of the population of the United States, which currently sits just above 300 million people. Add that figure to the number of jobs that have been lost (and the insurance that comes with a job) then the amount of Americans uninsured is frightening.

People from both sides of legislation fought and are still fighting to amend Obama’s recent healthcare plan, but that is not the only healthcare issue that has been circulating on Capitol Hill. People might remember that Hilary Clinton promised, if elected, that she would set up a universal healthcare system for all Americans. Just because she didn’t get elected doesn’t mean that the issue was dropped.

Even though a universal healthcare plan is not in the very near future, it’s still not too early to talk about the effects that a universal healthcare plan could have on workers’ compensation. Most people are insured through their employer and are covered under workers’ compensation should they get injured at their place of work. The employer, through the insurance carrier, should provide benefits that include, but are not limited to, hospitalization, physical therapy, medical tests, doctor’s visits, and medication. If a universal healthcare plan were implemented then how would the new system go about figuring out what coverages are provided?

Currently, workers compensation is a state run program. Considering that workers’ compensation only accounts for about 2-3% of the health care system makes overhauling it on a national level a daunting task. Adopting national laws for workers’ compensation could also interfere with state laws that are already in place. If not kept at a state level then workers compensation benefits could decrease. At worst, we could see the end of workers’ compensation as it would seem redundant to offer workers’ compensation if all Americans are provided insurance regardless if they have a job or not.

Employees are also offered indemnity benefits under workers’ compensation, which helps provide an income for injured employees while they are recovering and unable to work. Under a universal healthcare plan, an employee’s medical costs would be covered, but an employee might not be able to collect indemnity payments to support him or herself.

The bottom line is that workers compensation is too fragile and small of an area of the healthcare system to be amended and overhauled by a universal healthcare plan.