Florida Workers Compensation Faq

Florida Workers Compensation Faq

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Question #1: Do I Have A Case?

If you were injured on the job, no matter how small your injury, you have a case. Floridas Workers Compensation Law is no fault law, which automatically entitles you to certain benefits if you are injured on the job. It is supposed to be a self-executing statute; which means that after you report your injury, you are supposed to automatically receive certain benefits.

Question #2: If I Am Injured, What Wage Loss/Indemnity Benefits Am I entitled To Receive?

Temporary Total Disability Benefits (TTD) - 66 2/3% of your average weekly wage when you are unable to engage in any form of employment temporarily after an accident, as indicated by your treating workers compensation doctor. You get paid TTD so long at the doctor keeps you at a No work status. As soon as he releases you to return to some form of work, not your old job necessarily, but any form of work, you begin to get TPD, not TTD. Also, as soon as the doctor releases you and places you at maximum medical improvement (MMI), your entitlement to TTD/TPD ends; unless you later deteriorate due to an aggravation or surgery, and are no longer at MMI. (combination of TTD/TPD cannot exceed 104 weeks).

Temporary Partial Disability Benefits (TPD) - Approximately 60% of your average weekly wage minus any earnings, if any, during any period of time that you are unable to engage in your full duty job, as indicated by the treating workers compensation doctor. As soon as the doctor releases you and places you at maximum medical improvement (MMI), your entitlement to TTD/TPD ends; unless you later deteriorate due to an aggravation or surgery, and are no longer at MMI. (combination of TTD/TPD cannot exceed 104 weeks).

Permanent Impairment Benefits (PIBs) - Believe it or not, these benefits are supposed to compensate you for your permanent injury. PIBs are paid once you reach the stage of maximum medical improvement (MMI), usually when the doctor releases you, or when you exhaust your entitlement to TTD/TPD, which ever comes first. Remember, usually they are not paid until you are placed at MMI from all specialists. Also, the number of impairment assigned does not correlate with your actual % loss of disability, in common sense terms. Technically, depending on the situation, an individual can be permanently and totally disabled with even a 1% permanency, and another person can be able to work with a much higher rating. The doctor assigns the number by looking in a book called the Florida Uniform Impairment Book, a sort of cook book of injuries. A number of impairment is given for each and every objective injury, and the doctor has very little discretion to deviate from the percentage number. Even if the doctor wants to give you a higher number, usually he is prevented by the plain language of the book which assigns a specific number to your objective injury. For accidents occurring prior to 10/1/03, you are entitled to three weeks of benefits, at a rate of of your TTD rate, for every percentage of impairment assigned by the treating doctor. For accidents occurring after 10/1/03, you get 75% of your TTD rate; but if you have returned back to work, you only get 50% of your TTD rate. After 10/1/03 you are entitled to two weeks of benefits for every percentage if your impairment between 1-10% permanency, three weeks for every percentage of impairments between 11-15%, four weeks for every percentage of impairment between 16%-20%, and six weeks for every percentage of impairment over 20% impairment.

Your case is not over once the doctor places you at MMI and PIBs are paid out. You still have an obligation to treat with the doctor, as will be discussed below, at least one time per year as not so that the statute of limitations does not run. Also, it may be possible to get TTD/TPD benefits restarted, or get more PIBs by getting 2nd opinions or switching doctors. Please do not make the mistake of thinking your case is over once PIBs are paid out. Failure to continue treating with the doctors will significantly limit the value of your case, as the carrier will assume you are cured, and could possibly result in the end of your case by running of the statute of limitations.

Retraining TTD - If you apply and are accepted through the State of Florida, Division of Administrative Hearings, to be retrained, workers compensation will pay you TTD while you are in school being retrained. These benefits are paid while you are in school for up to 52 weeks. Prior to 10/1/03 these benefits were paid in addition to the 104 weeks of TTD/TPD. After, 10/1/03, the total of TTD/TPD/TTD retraining benefits cannot exceed 104 weeks.

Permanent Total Disability- These benefits have historically been paid to those who are unable to engage in any form of employment on an uninterrupted basis due to the injuries suffered in the industrial accident. A permanently and totally disabled individual would get paid indemnity benefits at the rate of 66 2/3% of the average weekly wage for the rest of his/her life, so long as the person remained permanently and totally disabled; also, depending on when the person becomes PTD, you may also be entitled to a 5% per year cost of living increase on these benefits. For accidents occurring from January 1, 1994 until October 1, 2003, an injured worker would have to meet the Social Security disability standard in order to argue for these benefits. If met, the employer/carrier would then have the burden of showing the individual was not permanently and totally disabled. In accidents after October 1, 2003, an individual must be catastrophically injured in order to qualify, or unable to engage in at least sedentary work within a 50 mile radius of the employees residence. Also, PTD benefits are now only paid up to the age of 75 years old. Although the law was amended to take out the Social Security presumption language, I strongly encourage those who might be permanently and totally disabled to apply for Social Security Disability as soon as possible. I still think the carriers will be more likely to accept someone as being PTD if they see that Social Security has accepted them for disability. It also may provide for an income while the PTD claim is being litigated. Our office practices Social Security Disability law, and if you feel you may be a candidate, you should immediately make an appointment to discuss your case with an attorney in the office.

Question #3: What If My Employer Offers Me Light Duty Work?

If you are offered light duty work within your restrictions, as defined by the authorized doctor, you must accept the work or you will be barred from receiving any indemnity benefits. Make sure to work only within the restrictions as outlined by the doctor. If for some reason you find you cannot perform the work being provided, you must immediately go to the treating doctor and explain to him the reason you are having difficulty, and see if he will change your restrictions. Remember, many of these doctors have never worked in any job other than as a doctor, never mind in a manual labor field. In many cases, you must educate the doctor as to your exact job duties.

Question #4: What If I Return To Work And I Re-Injure Myself?

You should immediately let me know if you re-injure yourself, because it may constitute a new accident. Also, if you have another accident, either on the job or not, it may directly impact the benefits to which you are entitled. Please immediately let me know of any subsequent accidents.

Question #5: What Medical Benefits Am I Entitled To Receive?

As a general rule, if you are injured on the job, the employer/carrier is responsible for all your medical care for those injuries for the rest of your life, so long as you treat with an authorized doctor at least one time per year. If you fail to treat with an authorized doctor at least one time per year, you may lose your case due to the running of the statute of limitations. This medical care includes but is not limited to evaluations, diagnostic testing, surgeries, medicines, etc. After reaching the stage of maximum medical improvement, you will be responsible for a $10 co-payment, every time you return to the doctor. Please do not stop treating once being placed at MMI because this will significantly reduce the value of your case, as the insurance company will think you are cured. Also, you could end your case by the running of the statute of limitations.

Question #6: How Do I Request Benefits?

As indicated above, the workers compensation law is supposed to be a self executing system, and benefits are supposed to automatically be provided. However, in reality, there is usually long delays in getting treatment, and often disputes as to what is medically necessary. I have also found that writing to the adjuster or making phone calls does not always get the fastest response. Although we will usually write and call, the policy in my office is to file a Petition for Benefits requesting specific benefits, which requires a response from the carrier within 30 days of receipt. Unfortunately, the law has recently changed, and I am prohibited from filing for a specific benefit or new specialist without attaching the prescription from the doctor specifically requesting these benefits. You must help in this process by getting the treating doctor to write you a prescription for everything he is recommending, and either fax, mail or drop off the prescription. Otherwise, there will be a long delay due to the office procedures in most doctors offices relating to requesting medical records.

Along these same lines, it is very important to speak to your doctor and tell the him/her your concerns. I have found that the most doctors will usually defer to the wishes of their patients, so long as they know their concerns. If you think a referral to a specific specialist is necessary, ask the doctor for the referral. If he refuses at first, ask again on the next appointment. Also, make sure you tell the doctor of all body parts that are injured, every time that you treat with him. If you fail to mention a body part, he may assume that the condition healed. This could create problems later in your case. Remember, it is the opinion of the doctor that the Judge is obligated to follow. I cannot argue a position unless it is supported by the evidence, and in this case the evidence is almost always the opinions of the doctors. A friendly doctor will not only help you with your treatment, but also may significantly increase the value of your case.

Question #7: Once a Petition For Benefits (PFB) Is Filed, How Long Will It Take To Go To Trial?

After receiving a PFB, the carrier has 30 days to respond. The rules require that a mediation automatically be set up within 120 days of the filing of a PFB. This is automatically set by the Department of Administrative Hearings in Tallahassee, FL. Sometimes the mediation will be rescheduled because of a conflict in the schedules of the attorneys or because the parties would rather have a private mediator rather than a state mediator. If for some reason the case does not settle at the mediation, an impasse will be issued, which allows the parties to go to a final hearing. A pre-trial, which you do not have to appear, is automatically scheduled by the Court; which is a legal document that the attorneys fill out indicating the issues to be tried, defenses of the employer/carrier, witnesses to be called and evidence to be presented. Sometime after the pre-trial, the court will automatically schedule a final hearing. Depending on the County in which you were injured, and the Judge assigned to the case, a final hearing may be scheduled anywhere within six months to more than a year after an impasse is declared. Unfortunately, my office does not have any power over when the final hearing is scheduled.

Question #8: Can I Be Fired For Requesting Benefits?

It is illegal to retaliate against an employee for claiming benefits and gives rise to a separate cause of action. If you feel you are being retaliated against, please immediately let me know. Depending on the facts, I might be willing to file suit for retaliatory discharge.

Question #9: What If The Doctor Is Recommending Treatment Or A Surgery That I Dont Want?

You are not obligated to undergo any treatment that you dont want. You should always discuss with your doctor all options of care, and make an informed decision regarding that care. If you want a second opinion, let me know and we will request another opinion. However, you must be aware that if you decline treatment, it will usually affect your entitlement to indemnity benefits. Also, as will be discussed below, it may affect the value of your case when it comes time for settlement. For example, if you do not believe in taking prescription pain medicines, the adjuster will consider this view when evaluating your case for settlement. If you tell the doctor that you would never have a surgery under any circumstances, the adjuster will obviously not consider the value of a surgery when evaluating your case for settlement.

Question #10: Am I Entitled To Choose My Own Doctor?

In most cases the answer is No. You must treat with a doctor provided by the insurance company. If your employer/carrier has chosen to utilize a managed care company to provided medical care in the workers compensation case, the rules of the managed care arrangement will govern. Many times there will be a list of doctors for you to choose from. If it is not a managed care program, the law now requires the carrier to offer you a list of three names.

Question #11: What If My Own Private Doctor Is Saying Something Different From The Authorized Doctor?

You are not supposed to be treating with your own private doctor for a workers compensation injury. In fact, the Judge of Compensation Claims (JCC) is prohibited by law from even considering the medical opinions of a doctor unless it is an authorized doctor, an IME doctor, or an expert medical advisor assigned by the JCC.. Moreover, treating with your own doctor does not toll the statute of limitations, which requires you to treat with the authorized doctor at least once per year.

Question #12: Am I Entitled To Switch Doctors?

In most cases you are entitled to switch your doctor one time, if you are unsatisfied with the treating doctor. Depending on whether the medical care is being provided through a managed care company, you are also entitled to an IME (a one time evaluation by a doctor of your choice). For accidents happening prior to October 1, 2003, the carrier had to pay for this doctor. For accidents occurring after October 1, 2003, the employee is now responsible to pay for his/her own IME.

Question #13: Can I Return To The Doctor After He Releases Me?

Yes. Even if a doctor releases you, you must return back to him at least one time per year, or you may blow the statute of limitations. If the doctor refuses to see you, let me know immediately so that I can file a Petition for Benefits requesting a return to the doctor or a switch in doctors. Even if you have to pay out of your own pocket, and I have to file for reimbursement, make sure you treat with the authorized doctor at least once per year.

Question #14: What Is A Claimant Deposition?

A deposition is a question and answer period taken under oath in the presence of a court reporter. A claimant deposition usually lasts anywhere from 1-2 hours. It is the opportunity for the attorney for the insurance company to see you face to face, find out a little about you, evaluate your medical condition, investigate the existence of prior or subsequent accidents, so that he/she can make recommendations to the carrier. I will meet you approximately one hour before the deposition to prepare you for the questions. I find that if I prepare a client right before the deposition, the client does much better than if I prepare the client days earlier. You should not be nervous, as it is usually informal. However, your answers will be given under oath and must be given truthfully. Your dress should be somewhat professional in order to make a good appearance.

Question #15: What Is A Mediation?

A mediation is a meeting between the parties and an informal 3rd party mediator, in an attempt to resolve the pending disputed issues or to settle the entire case. Although the parties can settle the case or resolve issues without a mediation, I find it the best time to discuss resolution of issues and settlement. A mediator is not a Judge, and cannot order the parties to do anything. A mediator is usually an experienced attorney, former Judge, or some other individual with special knowledge of workers compensation matters. A mediator does not work for either side, and merely attempts to get the issues resolved or the case settled, utilizing their expertise in workers compensation matters. If the parties cannot resolve the issues or settle the case at a mediation, an impasse will be issued. An impasse is required before the parties can go forward and have the Judge of Compensation Claims hear the disputed issues in the case. If an impasse is issued, do not think of it as a failure. It is just one mandatory step before getting to the Judge.

Question #16: Can I Resolve Issues or Settle My Case Without A Mediation?

Yes. However, in many cases, a mediation is the best opportunity to resolve issues or settle the case. Many times the case is not properly evaluated for settlement until just prior to the mediation. As such, in most cases I recommend waiting until a mediation to try to settle the case. Moreover, if an effective mediator is used, it may help in convincing the adjuster to offer more money to settle the case.

Question #17: Can the Judge of Compensation Claims (JCC) Order A Settlement?

No. It is essential for you to understand that a Judge of Compensation Claims (JCC) cannot order the employer/carrier to give you a settlement. The Judge of Compensation Claims is a hearing officer, given his or her powers specifically by statute; a JCC is not the same as a Judge in a circuit court case with equitable powers. The JCC can only resolve issue relative to benefits you may or may not currently be entitled to receive. In most cases, the Judge of Compensation Claims determines whether you are entitled to past owed monies or medical care.

Again, The JCC cannot order a just settlement based upon the value of your case. For example, you attend a mediation and the employer/carrier offers you a settlement of $10,000.00 to end your case. There is a total of $2,000.00 in past monies that might be owed you, because you were not paid for a couple of months following the injury. There are no other issues involved in the case. After you decline the settlement offer, the employer/carrier of

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