Month: November 2015

Florida Workers’ Compensation; State Mediation

After an injured worker has filed a Petition for Benefits (seeking some medical or indemnity benefit that is due not being provided by the insurance company), a state mediation is scheduled. The judge assigned to the case issues a Notice of Mediation order within 40 days of filing the Petition for Benefits. The mediation conference must take place within 130 days after the date of filing the Petition for Benefits. The judge may grant a continuance if the requesting party can demonstrate the continuance is required for reasons beyond the requesting party’s control. How quickly after a Petition the mediation is scheduled usually depends on the District. Most are set within 90 days and are held at the District office of the OJCC. For example, mediation for injuries sustained in Hillsborough, Hernando, Citrus and Sumter Counties are held at the Tampa office:

Office of the Judges of Compensations Claims – Tampa District
6302 E. Dr. Martin Luther King Jr. Blvd.
Suite 460
Tampa, FL  33619

The complete list of Florida districts can be found here.

State Mediation is a required step in the dispute resolution process. The topic of the mediation is the outstanding benefit(s) claimed in the Petition for Benefits. For example, if surgery was recommended by a treating physician and not authorized, an injured worker would file a Petition seeking authorization of the surgery. At the state mediation in this example, the issue discussed would be authorization for the surgery.

The state mediation is an opportunity for the claimant to fully inform the employer/carrier of his/her position. Similarly, the employer/carrier will have an opportunity to fully inform the claimant of why it will not pay or authorize the benefit.

Settlement Discussions at a State Mediation

No matter what the issue(s), settlement of the entire case typically comes up at mediation. In this situation, the employer/carrier would rather discuss a settlement of the case in its entirety versus just a discussion of the pending issue(s). In this situation, an injured worker and his/her attorney would consult regarding whether this option would be in the best interests of the claimant.

What Happens When Nothing is Resolved At Mediation?

When the parties are unable to resolve the pending issue(s), the mediation has reached an impasse. This means that there are still issues outstanding that will need to be addressed by a Judge of Compensation Claims at a Final Merits Hearing. Given the complex nature of disputes in Florida workers’ compensation cases, it is not uncommon to resolve some issues and not others at mediation. If some issues are resolved, those issues will not need to be addressed at a hearing.

Whether a workers’ compensation case has 15 state mediations or never goes to state mediation is entirely case specific.  An employer/carrier can deny medical and indemnity benefits continually in a case. Therefore, only if disputes need to be resolved does a case proceed to state mediation.

This post does not cover all the possible scenarios under which a state mediation can take place or what is discussed at mediation, but is simply meant to demonstrate that state mediation in Florida workers’ compensation cases is typically mandatory and is typically confined to discussing the pending issues and/or settlement. If you have question for a work comp attorney in Tampa, FL, contact our office for a free consultation. Our experienced Tampa injury attorneys are here to help.

Work Comp Made an Overpayment. Now What?

Circumstances sometimes present where a Florida workers’ compensation insurance company overpays an injured worker for one reason or another. Maybe they were unaware an injured worker began working and overpaid temporary partial disability benefits, or maybe they incorrectly over calculated the average weekly wage and paid benefits at a rate higher than obligated. In this situation, the injured worker will essentially owe the money back to the insurance company. The obvious question is: What happens if the injured worker doesn’t have the money to pay them back? Can the workers comp insurance company take the money they owe from future benefits?

Prior to 1993, overpayments made without a reasonable basis were considered gratuity. Essentially, if the error was on the part of the insurance company and there was no basis for it (just plain error), there was no right to recoup the overpayment.

Effective January 1, 1994, insurance companies can recover all overpayments, regardless as to why they were made. The law gives the carrier the right to recover overpaid amounts directly from the injured worker, or by deducting them from the injured worker’s compensation benefits. This applies only to indemnity benefits-not to medical benefits. Benefit deductions, however, are limited to 20 percent, The section provides [440.15(12), Fla. Stat. 2015]:

florida-work-comp-lawyers-statuteREPAYMENT.—If an employee has received a sum as an indemnity benefit under any classification or category of benefit under this chapter to which she or he is not entitled, the employee is liable to repay that sum to the employer or the carrier or to have that sum deducted from future benefits, regardless of the classification of benefits, payable to the employee under this chapter; however, a partial payment of the total repayment may not exceed 20 percent of the amount of the biweekly payment.

Christopher Smith, P.A. has represented injured workers throughout Florida since 1989.

The workers’ compensation laws have changed frequently over the last few decades, eroding the workers’ compensation benefits available to individuals hurt on-the-job. There is no obligation when you call us for a consultation, but it is important you discuss your workers’ compensation rights with a qualified lawyer immediately. Our attorneys have never represented any workers’ compensation insurance company. At our firm, an experienced Tampa workers’ compensation attorney will handle your case from start to finish.