Tuesday, August 8, 2017

Florida Workers Compensation (Part 1) - What they don't want you to know.

If you are here, it is because you are looking for information on how Workers' Compensation works in Florida.  This is going to be a little different than me selling my services giving you a slight overview of workers' compensation and asking you to call.  Nevertheless, if you want to have your work comp case handled, you can call me at 904-383-7448.  I generally pick up the phone- but I won't be interested in giving you any more free advice than below.  I wanted to hit the top 10 issues that I see on a daily basis.   I practice in Jacksonville, Florida.

For the past year and a half, I have been working for a high volume large firm handling only workers' compensation cases.  This is based on my experience and is not to be construed as legal advice- although I will be dealing with the questions where most people have asked for advice.

The only thing that the insurance company has to do is give you the benefits of the policy.  They can always decide that they don't want to give you a lump sum settlement.

1.  Money or Doctors?  To settle or not to settle.

Settling your workers' compensation case in Florida is as easy as taking a check to the bank, if that process involved getting three people, two witnesses, and judicial approval.  If you wanted to settle your work comp case from $500 to $2000, it could be finished tomorrow.  If you want more, you will have to let your attorney build his case and try to see what he can get for you.  If the insurance company has made an offer, you can accept it and place it in the bank.  

You don't have to settle your case.  But, with the substandard doctors, poor care, and bureaucratic red tape, most everybody in workers' compensation will tell you that you will get better care using your own money and selecting your own doctors.  (Yes, in Florida, the insurance company picks your doctors.)  

            1a.  Will I have to lose my job if I settle?

99% of the time, if you settle your case in Florida you must also resign from your employer.  The largest exception to this is Walmart, who notoriously does not require a resignation to settle a work comp case.  The other exception, is if your employer has hired a new or different Work Comp Insurance carrier between your accident and the current date.  Technically, if you employer wanted to still employ you after settlement, it would be advisable for your employer to find a new insurance company and to enter into a new written agreement for employment.

            1b.  How much is my case worth?

Probably less than you think.  When looking at a workers' compensation case, the insurance company does an analysis based on your expected treatment, whether or not you need surgery, how long you would be out of work.  In essence, they are asking "How much is this person going to cost me if we treat them fully for their injuries?"  With differing injuries, you would get different results.  Someone who needs an outpatient knee surgery is going to have less of a case value than someone who needs a inpatient back fusion.     

There are multiple reasons for this price difference.  First is that an inpatient procedure costs much more than an outpatient procedure.  Also, the recovery time for an inpatient procedure is bound to be longer than the recovery time for an outpatient procedure.  They look at all the potential costs that they must bear if they were to see you all the way to your maximum medical improvement.  This is called MMI, and it generally signals the end of your treatment with physicians.

It is possible that someone who needs a back fusion has not suffered as much as someone who needs a knee arthroscopy.  This does not matter to the insurance company.  They do not pay for pain and suffering.  Again, they do not pay for pain and suffering.  Generally, you will find that the insurance company will inflict pain and suffering, sometimes purposefully, by denials of operations, prescriptions, etc.  The work comp insurance company issue denials to help out their profit margin and to put Porsche's in their driveways.   Before you raise your voice at me, and try to tell me that your employer created such an unsafe condition, I can only explain that worker's compensation does not care.    

There are exceptions to this rule.   Florida Statutes 440.011(1)(b) lists the requirements for a direct suit over and above worker's compensation.  These are generally impossible to prove except in the worst of circumstances, and 999/1000 times, your case does not fall into this category.  One court has allowed an injured worker to sue his employer when the employer did not report an accident and caused the employee to fail to timely file a claim.   Ocean Reef Club, Inc. v. Wilczewski, 99 So.3d 1 (Fla. 3d DCA 2012).  Again, you likely do not fall under these exceptions.

            1c.  But my surgery would cost $60,000 - I looked it up.  You're telling me that they wont pay me $60,000?

If you walked in off the street, without insurance, your surgery might cost $60,000.  However, the insurance company negotiates lower rates and some procedures are set out by statute are fixed by a reimbursement schedule set forth by our legislature.  https://secure.fldfs.com/wcapps/cpt/ProviderManMenu16.asp   So, even though your surgery might run in the range of $60,000, it is possible and even likely that if worker's compensation would only need to pay $20,000 for the surgery.  

Why would it ever make sense to settle your case then, if you needed surgery?  Currently, under the Affordable Care Act, you can apply for health insurance that will cover preexisting conditions.  If they were facing costs of $20,000 for your surgery, and would offer you $20,000 to settle your case, you could use that money, obtain insurance, and treat your conditions with the doctor of your choosing.

2.  I have been offered light duty from my employer / my employer has no light duty.  What should I do?

If your employer has offered you light duty, you should accept it.  Why?  Because work comp does not have any duty to pay you indemnity checks if you reject an offer of light duty.  Indemnity checks are only two thirds of your expected paycheck.  Most people find it difficult to live when their income is cut by a third.  Remember, they do not pay for pain and suffering.

But my employer has no light duty!  When a client says this to me, the first thing I generally ask is, "How do you know?"  Generally my client will launch into a giant discussion about how "The only thing that they do at my company is  ______________, and because of my injury, there is no way that they would let me do ____________."

Call your employer- ask about light duty availability.  If they tell you that none is available, you should be receiving checks from work comp.  If they tell you that some is available, then you should report to work or else you forfeit your indemnity checks.

          2a.  But I only work in the area of __________, but they are having me do desk work.  This is not what I signed up for!  I'm supposed to be doing __________.

Tough.  If they want to make you the designated toenail clipper, and it is within your light duty restrictions, you must comply with their light duty requests or else you forfeit your right to indemnity checks.  

         2b.  I don't want to work there anymore, I just want to quit.  Will this hurt my case?

In general, I always advise my clients to do whatever it is that they need to live.  No one should ever think that their work comp case is going to set them up for the rest of their lives.  If you have another job lined up, and you want that job and it will make your life better- then go ahead and quit.  None of the benefits that you would gain by staying employed with your employer after your work injury can equal the benefit of being in a good job that you love.

3.  I don't want surgery, I don't want money, I just want to be better!

Personally, I find that many of my clients are offended when I ask if they want money rather than doctors.  The discussion generally starts like this, "So you want to try and get money out of the case rather than doctors?"

The client generally chimes back saying "I'm not in this for the money, I just want to get better."  Often times there is a slight undertone of offense that I would only think that they are looking for a payday.

This offends me on two levels.  First, is the incorrect assumption that I would think less of a client who wanted to get cash and get out of worker's compensation.  Second, is the incorrect assumption that if they get money, they would not be able to get better.
It is a fundamental truth, that you will have better doctors, a wider range of care options, and a generally higher level of care with doctors outside of work comp.  
         3a.  I don't want surgery, I just want money!

By telling them you don't want surgery, you have just lowered the amount that the insurance company expects to pay on your case.  You want surgery, or money.  You want surgery, or money.  You want surgery, or money.

4.  My bi-weekly indemnity checks stopped- my surgery was not authorized- my prescription was not authorized, what can I do?

Generally, these are the issues that cause more people to hire an attorney more than any thing else.  Before you hire an attorney, try calling your adjuster.  They are the folks that need to approve all benefits that are paid.  If they refuse, then it would be up to you to hire an attorney or to file your own petition for benefits yourself.  If you don't hire an attorney to file your petition for benefits, make sure you have all medical records from your case.