Indemnity Benefits


Medical questionnaires are a wonderful tool to get a snapshot opinion from an authorized doctor.  They are also cheaper than paying a doctor a witness and records fee (which can exceed $500).  For less than $100 (typically), an E/C can find out MMI, work status, and major contributing cause before it decides it wants to delve into expensive litigation.

It is best to use medical questionnaire after a conference with a doctor to confirm his opinions in the phone call.  If a doctor is advising surgery is necessary, then the E/C knows to raise reserves.  If the litigated issue is major contributing cause and the doctor confirms in the conference and subsequent questionnaire that the compensable accident is the MCC, then at least the E/C can make a decision if it still wants to pursue a possibly futile denial.

But, remember, these questionnaires (usually in the letterhead of a defense counsel) are just tools.  They are not the be all, end all.   If an E/C wants to adopt the questionnaire as its defense, it must follow through with deposing the doctor to confirm his opinions for the record.  These questionnaires are not medical records and therefore are not afforded automatic admission in front of a judge, per s. 440.13(5)(e).

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With the state of IME’s these days, it’s always wise to consider using one for your defense.  After all, the limitations on how many you can have are lifted.

But, its important to also present evidence to combat Claimant’s own IME doctors.  Especially, when they present opinions regarding retroactive temporary benefits.

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A common misconception in Chapter 440 is that, per  s. 440.20(12)(c), a Claimant cannot get a $2000 advance from the E/C if Claimant cannot pay the E/C back.  For example, many E/C’s would refuse to give a $2,000 advance to a Claimant who was at MMI.  The reasoning being that Claimant is no longer eligible for indemnity benefits, so the E/C cannot recoup the advance from future 20% deductions in indemnity payments, per s. 440.15(12).

Chalk this up to one of the unanswered scenarios that the Legislature never resolved, but if a Claimant can prove the one of the three factors of s. 440.20(12)(c), she can get a $2,000 advance even with the possibility that an E/C may never recoup the advance.  

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Count temporary partial disability (TPD) along with the 5-day rule and the statute of limitations, as an area the First DCA wants to clarify.   And, clarify they did. 

With many Florida employers shedding jobs over the last three years due to the current econmoy, the question of TPD entitlement is becoming an ongoing debate among the defense and Claimant’s bar.  How do you connect Claimant’s wage loss to the compensable injury when the reason for wage loss is the economy?

With Wyeth/Pharma Field Sales v. Toscano, we now have a definitive ruling on the matter. (more…)

The phrase “ignorance of the law is no excuse” is applicable to all areas of jurisprudence.  But not Florida Workers’ Compensation law.  Here, we embrace ignorance of the law to an art form. 

For many Claimants, the process of receiving medical treatment is a confusing one.  Even though it is required of them, many physicians do not inform Claimants of their work status.  For Employer/Carriers this can be very frustrating since we are responsible for paying disability benefits based on the opinions of the authorized doctors.  Unfortunately for E/C’s, if a Claimant thinks that their doctor has them off work and that is not the case, but the doctor has failed to notify Claimant, the E/C still must pay.

In this case, ignorance is bliss. (more…)

I bring this subject up mainly because the past few files referred to me have to do with this subject.  I even had a trial on the issue (which the parties ultimately settled) last week.

What I am referring to is whether  an Employer/Carrier can suspend or deny temporary partial disability benefits if a Claimant refuses light duty work offered by the employer.  The statute, section 440.15(6) is clear that a Claimant is not entitled to TPD benefits unless the refusal is justified.  “Justified” being the key word and the definition  to be interpreted by the JCC  at final hearing.

In two of the three most recent cases I have, both Claimants were injured in compensable accidents, placed on restrictive work duty (let’s call it light duty for purposes of this post) and both refused.  So, the E/C can just deny benefits, right?  Unfortunately, it is not that easy.  An E/C needs to take an honest, objective look at each individual case to determine if the refusals are justified. (more…)

It is one thing to blog about the First DCA decisions regarding W/C from the cozy confines of my desk.  It is quite another to actually pack up your self-proclaimed “analytical skills” and take them to Tallahassee to put them to the test in front of an appellate panel.  Yesterday, I had the opportunity to do such in my very first appeal–and oral argument–in front of the Court. 

Representing the appellant, Yaska Martinez Inc. and Unisource, I was attempting to reverse the JCC’s opinion in awarding Temporary Partial disability benefits to the claimant, Mr. Oscar Chaverri.   The case number is 1D08-1724.  You can view the docket here(more…)

Pardon the long title of this post, but its the best way to summarize this lengthy holding recently released by the First DCA.   The entire scenario reads like a law school hypothetical exam question.  But, the reason law school professors make up those strange hypotheticals is that they can come true.  

And, in Auman v. Leverock’s Sea Food House, this strange hypothetical comes to life.

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Since the new changes to the W/C law in 2003, I have found it increasingly difficult for the Employer/Carrier to sucessfully deny temporary partial disability benefits when Claimant leaves employment while on restrictions.  Only if a Claimant voluntary limits his own income, can an Employer/Carrier properly deny temporary partial benefits.  Case law further states that even if Claimant voluntary resigns, she can still earn temporary benefits if she is able to show a connection between the compensable injury and the subsequent wage loss.

As for firing an employee for misconduct while eligible for wage loss, the Employer/Carrier must prove the standard of misconduct as applied to unemployment compensation hearings, a tough standard to say the least.  Now, the First DCA is saying that an Employer/Carrier has the burden of proving that at least one job existed within Claimant’s restrictions when the E/C raises the affirmative defense of voluntary limitiation of income.  Simply showing to the Court that Claimant left on her own volition is not enough, there has to be proof of an abandonment of a legitimate job within her restrictions.

So, it is important for Employers to realize then that when an injured workers resigns, for whatever reason, that a documented position is still available.  For an Employer must show that if not for the Claimant’s resignation, she would still be earning wages.  Merely letting the Claimant walk out your door and not saying or documenting anything will not do. 

A common issue among litigated W/C claims is when an employee leaves the Employer for a new job or is fired outright.  If the Claimant files for temporary partial disability benefits (under section 440.15), the Employer/Carrier has a right to discover Claimant’s earnings.  His or her earnings, if any, would be an offset to any temporary benefits Claimant is entitled to.  For example, if Claimant is working part time because his injury prevents him from working full time, the Employer/Carrier would be responsible for paying the difference (applying the 440.15 statutory formula). 

One way to obtain Claimant’s earnings information is through an Employee Earnings Report, an affidavit Claimant must fill out or risk having his benefits suspended.  The Employer/Carrier is entitled to this information via Florida Admin Code 69L-3.021.

Yet, it appears that this is the limit to what financial information an Employer/Carrier can make Claimant reveal about themselves. 

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