Month: September 2015

Florida Work Comp; Unmanned Surveillance

As part of every initial consultation with an injured worker, our workers’ compensation attorneys discuss the fact that many insurance carriers hire private investigators to perform surveillance on injured workers. While it would not be cost effective to perform surveillance on every person who has a Florida workers’ compensation claim, the insurers spend enormous amounts of money on surveillance. It is therefore imperative that every injured worker be entirely candid regarding the extent of their injury, medical history, and any income/earnings.

Why and How is Surveillance Used?

In a recent case, Leggett v. Barnett Marine, Inc., surveillance revealed that the claimant was capable of performing physical tasks consistent with his pre injury job. The physical exertion shown in the surveillance was not consistent with representations made by the claimant, which led to a finding of fraud. The JCC held the claimant had made misrepresentations, and thereby forfeited all benefits under the Workers’ Compensation Act pursuant to Section 440.09 and Section 440.105, Florida Statutes. In summary, when a person commits fraud under the Workers’ Compensation Act, he/she forfeits any and all benefits.

The basic Florida work comp fraud rule: to establish the “fraud” defense, the employer/carrier must prove by a preponderance of the evidence that the Claimant knowingly or intentionally engaged in one of the acts provided in section 440.105, Florida Statutes, for the purpose of securing workers’ compensation benefits.[1] This concept was discussed in greater detail in our prior blog post, which you can view here.

Surveillance is one tool insurance companies use to demonstrate a claimant has made misrepresentations. In our ever evolving technological world, an interesting form of surveillance came to our attention: unmanned surveillance.

Below is a video demonstrating unmanned surveillance. It is advertised as “fully automated” and “hidden in plain sight in objects seen every day by everyone”.

As always, we encourage every person to be candid with their work injuries. Often, the bad apples ruin it for those truly injured, but it’s important to be aware of the lengths insurers go to in attempt to combat fraud. Sustaining an injury at work in Florida opens a person up to all sorts of things, being surveilled is just one of them.

If you have questions regarding workers’ compensation, call our office to speak with one of our work comp attorneys in Tampa, FL for a free consultation.

[1] Smith v. Target; OJCC Case #: 13-029085MRH (Decision issued March 2, 2015)

Trial Work Period; Social Security Disability

This article is intended to provide information regarding a trial work period in general, and how the Social Security Administration determines what actions trigger the beginning of the trial work period.

Social Security recognizes the concept of a trial work period, during which a person eligible for Social Security disability benefits is permitted to attempt to engage in work and still collect disability benefits. A trial work period begins when the person engages in services in any given month. In this context, services are defined as greater than $780 per month (in 2015). In 2014, the services threshold was $770 per month. In 2013, the amount was $750 per month. In 2010-2012, the services threshold was $720 per month.  For self-employed persons, services can mean any month in which the person works 80 or more hours.

Social Security will not consider the services performed during the trial work period as showing that the person’s disability has ended until such time as the individual engages in services for at least nine months in a 60-month period. The months do not have to be consecutive, but any month in which the individual engages in services as defined above. When an individual engages is services  for nine months in the 60-month period, the individual will go into what is called an Extended Period of Eligibility where an individual’s earnings and medical conditions are assessed by the Social Security Administration.

If an individual eligible for Social Security disability benefits does perform work for money, or puts in hours in self-employment, it is important to keep meticulous records of wages earned and hours worked.  This is not only because an individual needs to the ability to definitively state whether his/her earnings or hours are considered services, but to have that information in the event there is ever a contention by the Social Security Administration that the individual has engaged in services, when in fact they had not.

If you have questions regarding a trial work period and how it applies to your specific situation, please contact our office. The Social Security Administration has a very informative FAQ section on a trial work period, which can be viewed here and here.

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. Our firm assists clients with applications, request for reconsiderations, request for hearings, and administrative hearings. If you have questions for a Social Security Disability attorney in Tampa, call our office for a free consultation.

Pain and Subjective Complaints; Workers’ Compensation

The Florida Workers’ Compensation Act requires that an injured worker show objective evidence of injury. This means that pain and subjective complaints alone will not be enough to establish compensability of an injury sustained in the course and scope of employment. The next logical question is; What is objective evidence of injury?

subjective-complaints-of-painFlorida Statute 440.09(1) contains the following definition:

“For purposes of this section, “objective relevant medical findings” are those objective findings that correlate to the subjective complaints of the injured employee and are confirmed by physical examination findings or diagnostic testing.”

In order to discuss what qualifies as an objective finding, it’s important to discuss the distinction between objective findings and subjective complaints. Subjective complaints come directly from the injured worker: my head hurts, my back hurts when I twist, my hands hurt when I grasp.  Objective evidence is something that does not come only from the injured worker. The easiest example of objective evidence of injury is an MRI, x-ray, or results from other diagnostic testing. Objective evidence of injury could be swelling, spasm, rash. Subjective complaints could be pain, nausea, vertigo, and anxiety.

As work injuries most often produce some type of pain for the injured worker, it is extremely important for thorough and candid explanation of pain symptoms to authorized workers compensation doctors. If a patient is reporting his/her pain is at a 10, and there is no objective evidence of injury, the physician may make notes in the chart that he/she is exaggerating symptoms, has “nonorganic” pain, or that he/she is a malingerer. Therefore, it is extremely important that an injured workers describe pain as clearly and honestly as possible. Doctors often ask patients to complete a pain questionnaire, or ask them how their pain is on a scale of one to 10. Patients often say it’s a 10. A 10 on the pain scale should be reserved for pain so intense that you will go unconscious. The pain of a crushed limb or severe accident. If pain is at a seven, it will still dominate senses causing the person to break concentration frequently due to the pain. There are many factors that go along with pain and subjective complaints. The environment, expectations, attitudes and beliefs have an impact on the experience of pain. Acute or chronic pain can lead to varying degrees of altered behavior, dysfunction or disability.[1]

Florida-workers-comp-lawyers-westIf you have been injured on the on the job and have questions about workers’ compensation in Florida, or wish to discuss your potential case with a Workers’ Compensation attorney in Tampa, Florida, call our office for a free consultation. Our firm has been representing injured workers in Florida since 1989. We represent clients throughout West Florida. We offer in home consultations.

 

 

[1] Pain: A Review of Three Commonly Used Pain Scales. Link here.