Month: January 2015

doctor confidentiality in Florida workers comp

Doctor Patient Confidentiality in Florida Workers Comp

Doctor-patient confidentiality is one of the core concepts of a doctor-patient relationship. It requires health care providers to keep a patient’s personal health information private unless consent to release the information is provided by the patient. The purpose of such strict confidentiality is patients routinely share personal information with health care providers. If the confidentiality of this information were not protected, trust in the physician-patient relationship would be diminished. Patients would be less likely to share sensitive information, which could negatively impact their care.

When a worker is injured on the job, the workers comp insurance company (typically) will authorize treatment. When the workers comp insurance company gets involved, there are now several stakeholders interested in the outcome of treatment: the insurance company, the employer, and the employee. While Tampa workers comp attorneys work with the doctor on behalf of the injured workers, there are many agents who work with the doctor on behalf of the employer/carrier: the nurse case manager, the attorney for the insurance company, the adjuster, and other third-party companies. Because there are so many stakeholders, the injured worker’s privacy rights are given up and the free flow of private information is extended to these stakeholders and their agents.

Ex parte communication is a term used to describe one of these other persons speaking or corresponding with the doctor about the treatment of the injured worker without the injured worker’s knowledge. This means that an agent of the insurance company can have a conference with the doctor regarding the patient and the patient will know nothing about it. This seems like a violation of privacy to many—not so much just that the person can speak with the doctor, but that they can do so in a completely “secret” manner. By secret, I mean without notice to the injured worker. You may ask: How is that permitted? [1]

F.S. 440.13(4)(c) sets forth the following:

It is the policy for the administration of the workers’ compensation system that there shall be reasonable access to medical information by all parties to facilitate the self-executing features of the law. An employee who reports an injury or illness alleged to be work-related waives any physician-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation. Notwithstanding the limitations in s.456.057 and subject to the limitations in s. 381.004, upon the request of the employer, the carrier, an authorized qualified rehabilitation provider, or the attorney for the employer or carrier, the medical records, reports, and information of an injured employee relevant to the particular injury or illness for which compensation is sought must be furnished to those persons and the medical condition of the injured employee must be discussed with those persons, if the records and the discussions are restricted to conditions relating to the workplace injury. Release of medical information by the health care provider or other physician does not require the authorization of the injured employee. If medical records, reports, and information of an injured employee are sought from health care providers who are not subject to the jurisdiction of the state, the injured employee shall sign an authorization allowing for the employer or carrier to obtain the medical records, reports, or information. Any such discussions or release of information may be held before or after the filing of a claim or petition for benefits without the knowledge, consent, or presence of any other party or his or her agent or representative. A health care provider who willfully refuses to provide medical records or to discuss the medical condition of the injured employee, after a reasonable request is made for such information pursuant to this subsection, shall be subject by the department to one or more of the penalties set forth in paragraph (8)(b). The department may adopt rules to carry out this subsection.

This statute allows carriers, employers, and defense attorneys free contact with physicians regarding an injured worker—conveying the right hold ex parte communications with physicians and effectively reverses prior case law prohibiting such contact.  Claimants no longer have the right to be present during discussions between employers and carriers and those physicians [see Pierre v. Handi Van, Inc., 717So. 2d 1115, 1117 ( Fla. 1st DCA 1998)].

Courts have held that such ex parte communication with physicians does not infringe on the employees’ right to privacy under the Florida Constitution. This is because the workers’ compensation system transposes dispute resolution from the private law of torts to a publicly administered and regulated system. By presenting themselves to physicians, not only for treatment, but for evaluation and assessment of an injury’s relationship to work, injured workers consent to the disclosure of medical information relating to the claim.

[1] Ex parte communication with an expert medical advisor (EMA) is not permitted.

H&R Firm Awards Announced

Many colleges and universities already have MOUs in place with local law enforcement authorities covering a variety of areas.  Our conversations with campus administrators, campus police, and law enforcement have underscored the need for additional tools and strategies that are specifically tailored to the dynamics of sexual assault on campus, as well as the needs of sexual assault survivors.  The task force is providing this sample MOU with that in mind.

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Detroit’s Lawyers Defend Billing

In court papers, lead law firm Jones Day and others that helped Detroit navigate its historic debt restructuring made a case—at the request of U.S. Bankruptcy Judge Steven Rhodes—for why their hourly billing rates and final tab are reasonable. Officials at Jones Day, who pointed out they had already cut $17.7 million from their tab, defended the $53.7 million in fees charged for roughly 17 months’ work.

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Real estate attorney Bill Kuehling

Bill advises developers, nonprofit corporations, and public entities on a variety of real estate transactions and infrastructure finance. He has more than 20 years of experience in real estate development, public/private partnerships, land use, and municipal law, and serves as an advisor to national developers seeking tax abatements, tax increment financing, or any other redevelopment opportunities across the St. Louis region.

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For Foreign Law Firms in Australia

The gamble of doing business in Australia came into sharp relief this past week when one U.S. law firm parted ways with Australia while another global firm took its relationship with the country to a whole new level.

New York law firm Fried, Frank, Harris, Shriver & Jacobson LLP announced that it’s shutting down its offices in Shanghai and Hong Kong in coming months. Meanwhile, global law firm Dentons unveiled plans to merge with mainland Australia’s largest law firm.

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Florida work comp death benefits

Florida Work Comp Death Benefits

Under the Florida Workers’ Compensation Act, if a worker dies as the result of a compensable injury, the worker’s dependents are entitled to certain benefits. The benefits are compensation up to be $150, 000, funeral expenses, and, under certain circumstances, educational benefits for the spouse. In order to be a compensable, death must result from the accident within one year. If death does not occur after one year, benefits are awarded only if follows continuous disability and occurs five years after the accident. In occupational disease cases, the window is slightly greater (within 350 weeks; roughly six and three quarter years after the date of last exposure).

If the death does not occur within one year, it must occur within five years (excluding exposure cases) of “continuous disability”. There has been litigation over the meaning of this term, and the Florida Supreme County has held that there must be continuous suffering from the injury. However, the Court has held that a statement from a doctor that a claimant was “never the same since the accident” was a sufficient showing. In re Lupola, 293 So.2d 354 (Fla. 1974).

Of course, the legislature’s cap of five years is completely arbitrary, and has been attacked. However, the Supreme Court has held the cap is not unconstitutional. To illustrate the impact of the cap, consider the case of Leslie Newton.  Mr. Newton sustained a compensable work comp accident on April 30, 1973, while in the employment of McCotter Motors, Inc. As a result of this accident, he underwent multiple back surgeries which required bed rest. Because of the bed rest, he developed thrombophlebitis of his legs for which condition he was treated with anticoagulation therapy to thin his blood and to prevent clotting. Resulting from this therapy, he sustained several episodes of internal bleeding. His condition was further complicated by back pain, depression, and reactive hypertension. He was continuously disabled from the date of his accident until his death on May 5, 1982, which resulted from cerebral hemorrhage. His wife applied for dependency death benefits under the Workers’ Compensation Act as his widow. The employer/carrier contested the claim on the basis that the death occurred more than five years following the accident and that her claim was therefore barred by section 440.16(1).

Refusing to enforce section 440.16 because he determined that application of this statute to this case would produce an unconstitutional result, the deputy commissioner awarded benefits to Betty Newton. The First District reversed and upheld the constitutionality of section 440.16(1) against challenges that it denied due process of the law, to-wit: access to the courts, and denied equal protection of the law. The Supreme Court agreed with the First DCA in this regard. Newton v. McCotter Motors, Inc., 475 So.2d 230 (Fla. 1985).

If you have questions about Florida work comp death benefits or have questions for a workers comp attorney in Tampa, Fl, please do not hesitate to contact us to speak with an experienced Tampa work comp lawyer today. We offer free consultations, and there is never a fee if we don’t recover benefits on your behalf.

Reporting Workers Compensation Injuries in Florida

Reporting Workers Compensation Injuries in Florida

Reporting Workers Compensation Injuries in Florida

An injured worker has an obligation to report a work – related accident within 30 days after he or she knew, or should have known, an injury in the course and scope of employment was sustained. Obviously, the sooner after the accident the reporting occurs, the better. If the employer does not immediately complete a notice of injury form, it is important to immediately consult with a qualified workers’ compensation attorney in Florida. The attorney can provide assistance in making certain a notice of injury form is completed and a claim established. Alternatively, the claimant can immediately contact the insurance company who provides workers’ compensation coverage for the employer to advise that an injury has occurred. By contacting the insurance carrier, the carrier will complete the notice of injury form even if the employer failed to timely do so.

reporting your florida workers compensation injuryAccurately Reporting Information to the Employer or Carrier

It is important that the notice of injury form contain an accurate and complete summary of all injuries sustained, as well as an accurate description of how the accident occurred. If the notice of injury does not contain an accurate list of all injuries sustained, it may become difficult, months later, to get coverage for a particular body part if it was not reflected on the original notice of injury.

Once the claimant reports the workers compensation injury, the employer has a period of seven days in which to notify its workers’ compensation insurance carrier. If you suspect your employer has failed to establish your claim with the insurance company, failed to accurately list all of the injuries sustained, or if you have not heard from an insurance company within seven days after you report your injury, please be sure to contact a workers’ compensation attorney in your area immediately.

If You Require Assistance Reporting Your Injury in Florida

If you have questions regarding reporting a workplace injury, or any other question involving workers’ compensation benefits in Florida, contact our office at 813-931-1145. The workers’ compensation lawyers of Christopher J. Smith, P.A. are prepared to explain the nature of benefits available to injured workers after successfully establishing a claim. We offer free in-home consultations, and there is never a fee unless we secure benefits on your behalf. Our attorneys assist injured employees with workers’ compensation cases in Tampa and surrounding areas.

Importance of Accurately Calculating the AWW

All indemnity (money) benefits paid to an injured worker throughout the life of their workers’ compensation case are dependent upon the calculation of the average weekly wage (AWW). If it is under calculated from the beginning, it will result in months or potentially years of under paid benefits. For this reason, careful examination of how the carrier arrived at the Average Weekly Wage and whether that calculation is correct are very important questions in most Florida workers’ compensation claims.

Under most circumstances, if the individual works substantially the whole of the 13 weeks before the accident, (defined as at least 75% of those 13 weeks), then the average weekly wage is calculated by taking the total earnings total money earned by the claimant during the 13 week period. There is a form used by the insurance carriers to calculate the average weekly wage, which is referred to as a wage statement (DWC Form 1a-pictured at right). The form is supposed to be completed within 14 days after the employer’s knowledge of any accident has caused the employee to be disabled for more than 7 calendar days.

In order to make certain that the average weekly wage relied upon by the insurance carrier is correct, it is important to consider the following questions:

  • Does the carrier have my correct hourly rate of pay?
  • Did I work any overtime during the 13 weeks before the accident?
  • If I perform work involving sales, does the money reflected on the 13 week wage statement accurately reflect my earnings during the 13 weeks, or merely the money I was paid during the 13 weeks?
  • Was I paid (or entitled to) any bonuses during the 13 weeks before the accident?
  • Was I provided with health insurance by the employer during the 13 weeks before the accident? If so, what amount of money on a weekly basis did the employer pay toward the premiums associated with that health insurance? If the employer paid any portion of the health insurance premiums, is my health insurance coverage still in force? Does the insurance carrier can does the employer continue to pay their portion of the health insurance premium?

If you have questions about calculating your average weekly wage or your Tampa workers’ compensation claim, please do not hesitate to contact us to speak with an experienced Tampa workers’ compensation attorney today. We offer free consultations, and there is never a fee if we don’t recover benefits on your behalf.

cash advances in Florida Work Comp Cases

Cash Advances in Florida Workers’ Compensation Cases

A work injury can impact many facets of an employee’s life: ability to work, routine daily tasks, relationships with friends/family, and a reduction in income. Temporary total and temporary partial disability benefits are roughly two-thirds of the gross wages an employee was earning prior to the accident. This reduction in income, particularly for one income households, creates a financial hole which may be difficult to overcome. There are situations following a Florida workers’ compensation accident where a claimant may need additional financial assistance to fund various items: medical treatment (such as an independent medical exam), past-due bills, or other financial needs arising from workplace injuries. One option available to an injured worker is to seek a cash advance on future benefits from the insurance company. If the carrier will not voluntarily agree to issue a cash advance to the injured worker, a Judge of Compensation Claims has the authority to order a carrier to advance a payment to a claimant. While there are situations where a claimant can request an advance beyond $2,000, this article will address requests of $2,000 or less.

florida-workers-compensation-motion-hearingThe Judge of Compensation Claims may order the advanced payment upon showing the claimant has suffered either a substantial loss of earning capacity or a physical impairment. For consideration of requests for advances up to $2000, a JCC must perform a two-step inquiry:

First, the JCC must determine whether the claimant falls into one of the three specified statutory categories:

(1) claimants who have not “returned to the same or equivalent employment with no substantial reduction in wages”;

(2) claimants who have “suffered a substantial loss of earning capacity”; or

(3) claimants who have suffered a “physical impairment. § 440.20(12)(c)(2)[1]

Second, a JCC must determine that the claimant (a) is a proper claimant and (b) has provided adequate justification for his or her request.

A claimant requesting an advance of $2,000 or less does not have to demonstrate he or she will achieve a permanent disability status, or that there will be a source of future benefits to repay the advanced monies.[2] However, the claimant must show there is a nexus between the need for the advance and the workers’ compensation injury. The need must be tethered to a justifiable medical or other need arising from and related to the workers’ compensation claim.[3]

If you have questions regarding cash advances in Florida workers’ compensation claims, or any other Tampa workers comp matter, please contact our office for a free consultation. Our office has represented injured workers in Florida since 1989.

[1] Lopez v. Allied Aerofoam, 48 So. 3d 888 (Fla 1st DCA 2010).

[2] Florida v. Williams, 743 So. 2d 609 (Fla. 1st DCA 1999).