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.

No Social Security Cost of Living Adjustment for 2016

The Social Security Administration announced there will be no cost of living adjustment (COLA) for benefits for the calendar year 2016. There are almost 13 million persons receiving Social Security Disability payments and/or SSI that will be impacted by this decision not to give a COLA.

History of the Cost of Living Adjustment.

The purpose of the yearly adjustment is to ensure that the purchasing power of Social Security and Supplemental Security Income (SSI) benefits are not eroded by inflation.

How does Social Security calculate the Cost of Living Adjustment?

It is based on the percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) from the third quarter of the last year a COLA was determined to the third quarter of the current year. If there is no increase, there can be no COLA. [1]

Automatic COLA adjustments began in 1975, and the only years in which there has been no COLA are 2010, 2011, and now, 2016.

 

Interestingly, the Social Security Trust Fund took in 855 Billion dollars in 2014. Of that 855 Billion, only 96.2% was paid out to beneficiaries and to cover administrative expenses.[2] That means that the Social Security Taxes collected over what was paid resulted in a net surplus of 3.8%.

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 Tampa Disability Lawyers are available for free consultations.

[1] http://www.ssa.gov/news/cola/

[2] http://www.ssa.gov/policy/docs/chartbooks/fast_facts/2014/fast_facts14.pdf

Independent Contractors and Florida Workers’ Compensation

We start with the general proposition: most Florida employers are required to carry workers’ compensation insurance coverage for employees. Workers’ compensation benefits are designed to help cover the costs of lost wages and medical expenses for work-related injuries sustained by employees. The Florida Workers’ Compensation Act specifically excludes the obligation of an employer to provide coverage for independent contractors. Independent contractors, except those in the construction industry, are not employees. There are also several types of jobs which are (generally) independent contractors by statute: real estate agents, entertainers, truck owner-operators, horse exercise riders, and drivers for hire, among others. However, there are other positions where it may be a “close call”, and could mean the difference between having coverage and entitlement to benefits or not. Therefore, correctly determining whether an individual is truly an independent contractor not eligible for coverage or an employee eligible for coverage is a vitally important matter.

florida-work-comp-lawyers-statuteThe law provides that independent contractors are employees unless they meet the following conditions 440.02 (15)(d)(1), Fla. Stat (2015):

a. In order to meet the definition of independent contractor, at least four of the following criteria must be met:

(I) The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations;

(II) The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal regulations;

(III) The independent contractor receives compensation for services rendered or work performed and such compensation is paid to a business rather than to an individual;

(IV) The independent contractor holds one or more bank accounts in the name of the business entity for purposes of paying business expenses or other expenses related to services rendered or work performed for compensation;

(V) The independent contractor performs work or is able to perform work for any entity in addition to or besides the employer at his or her own election without the necessity of completing an employment application or process; or

(VI) The independent contractor receives compensation for work or services rendered on a competitive-bid basis or completion of a task or a set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists.

[alert type=”info” close=”true”]Even if four of the above are not met, an individual may still be presumed to be an independent contractor and not an employee based on full consideration of the nature of the individual situation with regard to satisfying any of the following conditions:[/alert]

(I) The independent contractor performs or agrees to perform specific services or work for a specific amount of money and controls the means of performing the services or work.

(II) The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform.

(III) The independent contractor is responsible for the satisfactory completion of the work or services that he or she performs or agrees to perform.

(IV) The independent contractor receives compensation for work or services performed for a commission or on a per-job basis and not on any other basis.

(V) The independent contractor may realize a profit or suffer a loss in connection with performing work or services.

(VI) The independent contractor has continuing or recurring business liabilities or obligations.

(VII) The success or failure of the independent contractor’s business depends on the relationship of business receipts to expenditures.

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Employment arrangements can be complex and varied. Therefore, whether or not a person is an independent contractor will be based on the specific facts and circumstances between the individual and the employer/business. Classification as an independent contractor may not always be a bad thing, if there was negligence on the part of the business that caused the injury. This is because an employer not covered by the act may not enjoy the benefit of workers’ compensation immunity. If you have questions regarding workers’ compensation, or about the topic of this blog post, Independent Contractors and Florida Workers’ Compensation, please do not hesitate to contact our office for a free consultation.

 

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.

 

 

 

 

Recurring Problem; Does a Referral Go Stale?

When an injured worker goes to the authorized treating physician and receives a referral for medical treatment or testing, the workers’ compensation carrier should immediately authorize and schedule the treatment or testing. Often times, the testing or treatment is scheduled within a reasonable time. However, there are certain situations where the insurance company fails, refuses, or neglects to honor the referral, and the treatment or testing goes unscheduled. This happens frequently with referrals to specialists, physical therapy, medications, MRIs, x-rays, etc. In these situations, it’s often times necessary to file a Petition for Benefits to pursue authorization of the treatment or testing. The next logical question is how long is too long to wait? If the referral was made a month ago, is it still needed? What about a year ago? Is the referral for treatment “stale” at this point? In other words, does the insurance company have to honor a referral written a year ago or do you need to go into the doctor for a new referral? This question was addressed by the First District Court of Appeal in Young v. American Airlines, 100 So.3D 1168 (2012).

In Young, the claimant sought approval of a referral to a cardiologist made several years earlier. The Trial Court denied the referral because there was “no current medical evidence” of the need. The First DCA rejected this finding and held there is no legal authority which indicates a recommendation or referral from an authorized doctor can become stale in the absence of a change in the claimant’s condition that would affect the need for the recommended benefit.[1]

This holding is good for injured workers for a few reasons. First, “current” is a difficult standard to determine. We often see delays of months for testing or referrals to specialists. Is current a month? Two months? Second, It would seem against logic to propose that an insurance company can delay authorization or scheduling treatment recommended by the authorized doctor selected by the insurance company, and then require you to go in to renew that referral again after the delay elapsed due solely to their failure to authorize it timely.

If the question is does a referral go stale? The First DCA has confirmed it does not, as long as there is no evidence of a change in the claimant’s condition that would affect the need for the recommended benefit. 

[1] Young v. American Airlines, 100 So.3D 1168 (2012).


Our firm 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. Contact our office at 800-886-0659.

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).