Month: July 2015

When the Claimant Must Pay; Prevailing Party Costs

In Florida workers’ compensation cases, the prevailing party is entitled to recover its costs from the losing party. This means that even if a claimant pursues a claim in good faith, if he or she does not prevail on an issue, the employer/carrier can recover the costs expended in defending the claim/issue.   This rule requiring a losing claimant to pay costs was part of the massive 2003 Florida workers’ compensation overhaul. Prior to 10/1/03, only the employer/carrier had exposure to the payment of costs.

[teaser img=””]the-statuteFlorida Statute 440.34(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. (amended 2003)[/teaser]

 

How Do You Determine the “Prevailing Party”?

The term “prevailing party” generally means that party, as claimant or defendant, who substantially prevails against the other party. In Florida workers’ compensation cases,  a Judge of Compensation Claims is not limited to finding that only one party (or neither party) prevailed. The unique nature of workers’ compensation proceedings, wherein a sequence of (often non-competing) claims and defenses is normally consolidated into a single hearing, creates the potential for a party to be both prevailing and nonprevailing, relative to different claims in the same proceeding.[1]

A dismissal by a claimant can also result in becoming the nonprevailing party. In Griffin v. Progressive, the claimant voluntarily dismissed her claims prior to a hearing. As such, the Judge of Compensation Claims taxed the costs of defending the outstanding issues (the claims dismissed) against the claimant. [2]

What Costs are Recoverable?

As a general rule, costs relevant to the claims at issue in the Uniform Guidelines for Taxation of Costs can be charged against the nonprevailng party. Generally, costs for relevant copies of medical records, deposition fees, court reporter fees, medical expert fees (these fees can be tricky), and the like. Payments for conferences with physicians can be taxable. The Uniform Guidelines for Taxation of Costs should be considered when determining if a cost is taxable. However, these Guidelines are advisory only and consideration will be given to the purpose of the conference in determining if the cost is taxable.[3] If a conference with a physician was regarding an issue in dispute, it may be taxable.

If you have questions regarding prevailing party costs in Florida workers’ compensation claims, or any other question relevant to workers’ comp claims, contact one of our workers comp attorneys in Tampa for a free consultation.

[1] Aguilar v. Kohl’s Department Stores, 68 So.3d 356 (Fla. 1st DCA 2011).

[2] OJCC Case No.: 14-021911MES.

[3] Martin v. Code Enforcement, City of Jacksonville, 122 So.3d 438 (Fla. 1st DCA 2013).

Tolling the Statute of Limitations; Prescription Medication

Under the Florida Workers’ Compensation Act, there is an initial two-year statute of limitations, followed by a one year statute of limitations. The initial two-year statute of limitations requires the injured worker to either receive authorized medical or indemnity benefits, or file a Petition for Benefits seeking appropriate benefits, within two years of the date of their work comp accident. Thereafter, the statute is converted to a one-year statute of limitations. This means the individual must never allow a year or more to pass without receiving treatment from an authorized provider.

This blog post will discuss how authorized prescription medication has been used to toll the statute of limitations in Florida workers’ compensation cases.

 

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Florida Statutes 440.19(2) states the following:

Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment. This tolling period does not apply to the issues of compensability, date of maximum medical improvement, or permanent impairment.

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In the case of Vartimidis v. Walgreen Company/Sedgwick, the employer/carrier furnished medication prescribed by the authorized physician 23 months after the accident.[1] The employee filed a petition for benefits several months later, and the employer/carrier alleged the statute of limitations had run. The Judge found the medication had been inadvertently furnished and in doing so, imposed upon claimant the burden of demonstrating he detrimentally relied on the prescription. The JCC concluded claimant failed to demonstrate detrimental reliance on the inadvertently provided benefit and therefore the pending petition was barred by the statute of limitations. The First DCA disagreed, and found that because the medical benefit was furnished within two years of the date of accident, the SOL never expired and the petition filed within one year of the provision of benefits was timely. The court stated the following:

When an E/C furnishes an indemnity or medical benefit before the statute of limitations expires, the limitations period is extended for one year by operation of law pursuant to section 440.19(2). A claimant who files a proper petition for benefits within this one-year period has no need to assert waiver or estoppel against an E/C, or prove detrimental reliance upon an E/C’s mistake or inadvertence, to avoid dismissal based on the statute of limitations. Here, the E/C’s furnishing of a medical benefit extended the limitations period for one year from November 12, 2009. Consequently, the petition for benefits filed on February 8, 2010, was timely and the JCC erred in concluding it was barred by the statute of limitations. Accordingly, we reverse, and remand for further proceedings consistent with this opinion.

As practitioners, we constantly advise our clients about his/her obligation to never allow a year or more to pass without receiving treatment from an authorized provider. If an individual’s case is stabilized, and he/she is receiving follow up care for his/her workers’ compensation injury, it is always good practice to only keep six to nine months between appointments. Things happen. Doctors get called into surgery, have to cancel appointments at the last minute, etc. If an injured worker only keeps six to nine months between appointments, he/she will never have to worry about “cutting it too close”. If you have questions about the statute of limitations, or general questions about workers’ compensation, contact one of our workers comp attorneys today for a free consultation. Our main office is in Tampa, but we have offices in Brooksville and Inverness to meet with clients at by appointment. We serve all counties in West Central Florida.

[1] Varitimidis v. Walgreen Co./Sedgwick Claims Mgmt. Serv. Inc., 58 So.3d 406 (Fla. App., 2011).

Petition for Benefits; General Timeline

This diagram is not intended to be a conclusive timeline of every case, but is illustrative of a general timeline of workers’ compensation disputes following the filing of a Petition for Benefits. If you have questions about your specific facts and circumstances, please call our office to speak with one of our Tampa workers  compensation attorneys. We offer free consultations.


 

Petition for Benefits ; Florida workers' compensation


[alert type=”info” close=”true”]There is no limit on the number of Petitions for Benefits filed in any given workers’ compensation case. Petitions are filed as disputes arise. Therefore, in some cases, there is no need to ever file a Petition for Benefits. However, in some cases, there may be numerous Petitions filed. The number depends on the specific benefits being denied or not provided by the workers’ compensation carrier.[/alert]

What is a benefit that is not being provided?

A common benefit not being provided would be a surgery recommended by the authorized treating physician, which is not being authorized by the workers’ compensation carrier. This can also be a variety of medical benefits: physical therapy, diagnostic testing, medications, etc. If the case is denied in its entirety, then no benefits are being provided. Additionally, there may be entitlement to indemnity benefits that are not being provided.

If your attorney feels there is a benefit you are entitled to that is not being provided, he/she will make a good-faith attempt to resolve the matter with the workers’ compensation insurance carrier. If the good-faith attempt is unsuccessful in resolving the dispute, a Petition for Benefits will be necessary.

Filing a Petition for Benefits

Most Petitions are filed by an attorney, although an injured worker can file one pro se.  Petition for Benefits must meet certain specificity requirements and must contain certain information. See. F.S. 440.192 (2014) here.

Claimant’s Deposition

We have a long summary of information regarding claimant depositions in Florida workers’ compensation cases.  A claimant’s deposition typically occurs within two months of filing the initial Petition for Benefits, but does not have to occur at any specific time. Depositions are scheduled on a case-by-case basis, so your case may differ. However, as a general rule, many cases will involve the claimant’s deposition being taken between the filing of a Petition for Benefits and the state mediation.

State Mediation

A state mediation is a meeting of the parties (the injured worker/their attorney and the insurance company/their attorney) in which a mediator acts to encourage and facilitate the resolution of issues/disputes prior to those disputes being decided by a judge. Mediation is required in order to have your case eventually heard by a Judge of Compensation Claims. The mediation is an informal discussion and there is no formal questioning [such as in the deposition]. The judge is not allowed to know the substance of any of the discussions that occurred during mediation.

If the parties resolve the outstanding issues (the benefits contained in the PFB, or the case in its entirety), the pending benefits claimed in the Petition for Benefits are essentially resolved. At this point, the mediator sends a form to the judge noting that all issues have been resolved and therefore no final hearing will be needed. If any issues are left unresolved, the mediator sends a form to the judge stating that the parties did not resolve all the pending issues so that the judge knows to schedule a final hearing on the unresolved issues. If some outstanding issues remain for the judge to resolve a final hearing is scheduled.

Additional Discovery

While not required to take place at this specific time, this time period (between mediation and final hearing) is when litigation/discovery typically heats up. If a surgery is being denied, it is common to take the treating physician’s deposition or the deposition of the independent medical examiner.

Final Hearing

The final hearing is a trial without a jury. The judge hears evidence and witnesses from the claimant and then from the employer/carrier. Within thirty (30) days after the final hearing, the judge of compensation claims issues a written decision regarding the entitlement to the benefits claimed.

Workers’ compensation cases can be straight forward, or extremely complex based upon each injured worker’s specific facts and circumstances. If you have questions about how this timeline applies to your Florida work comp injury, please contact our office for individualized legal advice.

Social Security Benefits; Withdrawing an Application

Social Security Benefits; Withdrawing an Application

While withdrawing an application for either Social Security disability benefits or Social Security Retirement benefits is rare, certain circumstances can present where withdrawal of an application is the better course of action for an individual.

For example, John turns 62 and files an application for Old Age Benefits (Retirement Insurance Benefits), commonly referred to as “Early Retirement”. He is working at the time he elects to file for retirement benefits. Three months later, he has an accident where he sustains injury to his back and neck. His injuries from his back and neck will prevent him from working for the rest of his life. In this situation, John has the option to withdraw his application for retirement benefits and file for Social Security disability benefits, which will likely result in a higher monthly benefit than the reduced early retirement benefit. This option is made possible through the rule allowing withdrawal of an application.

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The Rule: Withdrawal of an Application, C.F.R. § 404.640

(a) Request for withdrawal filed before a determination is made. An application may be withdrawn before we make a determination on it if—

(1) A written request for withdrawal is filed at a place described in § 404.614 by the claimant or a person who may sign an application for the claimant under § 404.612; and

(2) The claimant is alive at the time the request is filed.

(b) Request for withdrawal filed after a determination is made. An application may be withdrawn after we make a determination on it if—

(1) The conditions in paragraph (a) of this section are met;

(2) Any other person whose entitlement would be rendered erroneous because of the withdrawal consents in writing to it. Written consent for the person may be given by someone who could sign an application for him or her under § 404.612; and

(3) All benefits already paid based on the application being withdrawn are repaid or we are satisfied that they will be repaid.

(4) Old age benefits. An old age benefit application may be withdrawn if, in addition to the requirements of this section—

(i) The request for withdrawal is filed within 12 months of the first month of entitlement; and

(ii) The claimant has not previously withdrawn an application for old age benefits.

(c) Request for withdrawal filed after the claimant’s death. An application may be withdrawn after the claimant’s death, regardless of whether we have made a determination on it, if—

(1) The claimant’s application was for old-age benefits that would be reduced because of his or her age;

(2) The claimant died before we certified his or her benefit entitlement to the Treasury Department for payment;

(3) A written request for withdrawal is filed at a place described in § 404.614 by or for the person eligible for widow’s or widower’s benefits based on the claimant’s earnings; and

(4) The conditions in paragraphs (b) (2) and (3) of this section are met.

(d) Effect of withdrawal. If we approve a request to withdraw an application, the application will be considered as though it was never filed. If we disapprove a request for withdrawal, the application is treated as though the request was never filed.

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Our firm has been practicing Social Security Disability Law since 1994. If your claim for Social Security Disability benefits has been denied, it is crucial you appeal the Social Security disability denial within 60 days. As a Tampa Social Security Law Firm, we will do everything in our power to keep you from losing out on disability benefits you deserve. For more information on the Social Security Disability process, please browse our pages:

1. The Social Security Disability application
2. Filing a Request for Reconsideration
3. Filing a Request for Hearing
4. The Five Step Sequential Evaluation Process
5. The difference between Social Security Disability vs. Supplemental Security Income
6. How Social Security has changed the claims handling process.

We would be happy to answer questions regarding you Social Security disability claim. Call for a free consultation.