FAQ

Thank you for choosing the Law offices of Jason G. Barnett, P.A. in Fort Lauderdale, FL to represent you in regard to your industrial accident. I promise to represent your interests to the best of my ability, and hope you will be satisfied with the service you receive from my office. Although the firm has grown in the past few years, I still take pride in the fact that most of my client’s still come to the office through word of mouth, mostly from current or former clients.

I understand that you may be confused and have many questions about your pending case. Whether it is a Worker’s Compensation, SSDI/SSI, or Work Injury case, I have put together this list of commonly asked questions for you to review. I encourage you to read this list periodically throughout your case. I truly hope this FAQ helps put your mind at ease, and gives you a better understanding of the benefits to which you may be entitled. I also understand that not every question can be answered by a letter, and I strongly encourage you to speak to one of my staff members or myself if you have any questions. Please contact us through or website or call (954) 618-1776.

QUESTIONS

1: Do I Have A Case?

If you were injured on the job, no matter how small your injury, you have a case.  Florida’s 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.

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 (PIB’s) - Believe it or not, these benefits are supposed to compensate you for your permanent injury.  PIB’s 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 ½ 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  PIB’s 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 PIB’s by getting 2nd opinions or switching  doctors.  Please do not make the mistake of thinking your case is over once PIB’s 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 employee’s 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.

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.

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.

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.

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.

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 inTallahassee, 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.

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.

9: What If The Doctor Is Recommending Treatment Or A Surgery That I Don’t Want?

You are not obligated to undergo any treatment that you don’t 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.

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.

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.

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.

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.

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.

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.

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.

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 offers to pay you $1,000.00 as a compromise on the past monies that they may or may not owe you.  You decline to settle the case, and decide that you want to take your chances before the JCC on the past owed money owed.   The mediator issues an impasse.  You attend the final hearing and you win.  The JCC awards you the full $2,000.00 owed.   That is it.  The JCC cannot award you more than what is owed.   Please do not think you are going to go to a JCC and have more money ordered to you than what is owed.

18: How Do I Determine The Value of My Case?

Past Indemnity + Future Indemnity + Future Medical = Settlement Worth

a. “Past Indemnity”  means any money owed to you that was unpaid or underpaid while you were entitled to receive indemnity benefits.  If there is a dispute as to past indemnity benefits, this dispute may best be resolved by settlement.  If the issue cannot be resolved, the issue will then go before the Judge of Compensation Claims.

b. “Future Indemnity Benefits” means any money the employer/carrier may pay you in the future.  Obviously, these benefits are speculative in nature.  The best we can do is make an educated guess as to the value of these benefits. We usually consider (1) how many weeks of entitlement to temporary total/partial benefits remain (please recall in most cases 104 weeks is the cap on indemnity benefits.  Also, once you are placed at MMI, unless you drop below that level, you are not entitled to any more temporary total/partial benefits), (2) what is your permanent impairment rating or anticipated permanent impairment rating (which usually entitles you to some payments over a period of time), and (3) whether you have been accepted or may be accepted for retraining through the State of Florida, and (4) whether you are permanently and totally disabled.

c. ‘Future Medical Benefits” is the amount of money the employer/carrier will likely pay for your medical care and services in the future.   Please keep in mind that the employer/carrier get the benefit of a “fee schedule” when paying for medical bills, which is usually half of what you would have to pay out of pocket for the same services.   The employer/carrier will offer monies for settlement based upon what they think they will have to pay, not what you would have to pay.   As a general rule, the Firm does not recommend that you settle your case because future medical care is speculative, and your medical condition may get worse over time.   However, if you want to settle your case, we can make an estimate of the value of future medical care by considering the opinions of your doctors and the estimated costs of such care.   As you go through your case you should consider that the carriers usually estimate the value of your future medical care by how much they are spending and how much they anticipate they will spend in the future.  This estimate includes, but is not limited to future medical care, prescription medications, surgeries, etc.  The more they think they will spend, the more they will probably offer to settle your case.

19: How Much Do I Get For Pain and Suffering?

Nothing.  Unfortunately, the value of your case is not based on your pain and suffering no matter how much pain you have endured, nor how much you and your family have suffered.  It does not matter how long you worked for the employer, how much they liked you, or did not like you.  In most cases, it does not even matter how you got hurt or whether it was your fault or not.   A settlement is based only on past and future indemnity benefits and future medical costs, as described above.

20: Do I Get A Larger Settlement If The Carrier Failed To Provide Me With Timely Medical Treatment And/Or Was Regularly Late With Indemnity Payments? What If They Were Rude And Disrespectful To Me And My Family?

No.  There is no settlement monies for bad faith handling of your case.   There may be an argument for statutory penalties and interest payments on late paid indemnity checks, and perhaps attorney fees; however, a settlement will not be appreciably increased because of the poor handling of your case.   There is no punative, compensatory, or special damages under the Workers’ Compensation law.

21: Am I Required To Settle?

YOU NEVER HAVE TO SETTLE YOUR CASE UNDER ANY CIRCUMSTANCES!  You are free to keep your case open for the rest of your life, so long as you don’t blow the statute of limitations.  You should only settle if you feel it is in your best interest.

22: Is The Employer/Carrier Required To Make Me A Settlement Offer?

No. The employer/carrier is well within their rights to ignore any settlement proposal or to simply never offer a settlement.  Just as you do not have to settle, they do not have to settle.   The JCC nor anyone else can force them or you to settle.

23: Why Is Settlement A Good Idea?

Being on Workers’ Compensation can be very stressful for many reasons.  Even if your employer/carrier is diligent in paying your benefits, many people find that even full payments are inadequate to live.   Moreover, many feel pressure being in the system, relying on an insurance company for a pay check.   Many do not feel confident treating with doctors being paid by workers’ compensation.            Your case may also be denied, and there may be a chance that you will not be able to convince a JCC that your were injured on the job.   Settlement may also be a good idea if you have another means to pay for your future medical treatment.   Every persons situation is different, and many will choose to settle a case due to some personal consideration,  rather than legal advice.   A settlement is the only way to get a lump sum settlement out of the employer/carrier, and for many people, it brings closure to a very painful period in their lives.

24: Why Is Settlement A Bad Idea?

Settlement is a bad idea if the authorized medical care can improve your condition, and you want to pursue the medical treatment.   Once you decide to settle your case, you will be responsible for your own medical care and wage loss.  Obviously, the cost of medical treatment and care, including prescription medications, has increased significantly over the years.   Settlement will almost never be adequate to pay for significant future medical treatment and care over your life time.  If you feel you will need significant medical care, do not settle your case.  Prior to settling, you should ask your doctor the likelihood of setbacks and need for future medical care, and the estimated cost of such care.  Ultimately, however, it is your decision whether to settle your case.

25: Can I Settle My Case If I Am Still Employed With The Same Company?

If you are still employed by the company for whom you worked at the time of injury, most of the time they will not settle your case if you want to keep your job.  They are not picking on you, but usually have a policy of no settlement without a voluntary resignation.  Remember, the only reason for the employer/carrier to settle your case is to avoid any future risk associated with your injuries.  If you get a lump sum settlement, and re-injure yourself while still employed at the company, the employer/carrier will most likely have to pay for your medical treatment and wage loss again, and they do not get any of the settlement money back.  If you want to continue working for the same employer, you should simply not settle your case.  Sometimes, however, if the insurance company that handles the workers’ compensation for the employer no longer insures the employer, they will settle the workers’ compensation case without a resignation.

It is also important to keep in mind that a voluntary resignation will usually prevent you from collecting unemployment.   Also, a general release will prevent you from suing your employer for any other cause of action.   If you have any other potential cause of action, you should not settle the workers’ compensation case, without specifically indicating that you want the right to pursue that case to be kept open.   Usually, the employer/carrier will not agree to these terms.  However, I have had a few cases where such language was allowed.

Alternatively, if the alternative cause of action case is one that seems to have merit, my office may be willing to undertake the case or refer it to an attorney that I work closely with to negotiate a reasonable settlement for that case as well.   It does not make much sense to give up other possible case with merit, without the employer/carrier giving you some consideration for giving up that case.  It is important for you to bring up these possible other cases to my attention prior to a mediation, so that we can get moving on evaluating this case.   Usually the employer/carrier will not pay any significant additional monies for a general release, unless they know the case is already being pursued; and the employer is able to bring their private attorney to negotiate a release for this other case.

26: Can I Get A Lump Sum Settlement and Keep My Medical Care Open?

No.  Before 1994, claimants with severe injuries were sometimes allowed to settle their indemnity portion of the case, and leave the right to medical care open.  Employer/Carriers found this to be too expensive and since 1994 have either agreed to a full settlement of both indemnity and medical, or no settlement at all.

27: If I Am Getting or May Get Social Security Disability Benefits And/Or Medicare/Medicaid Benefits, Can I Settle My Case?

Yes.  However, the Federal Government places a lien on you settlement; because they are also paying for your future wage loss and medical care.  It is not fair to the Federal Government that you would get paid a lump sum for future wage loss and medical care in a settlement, spend the money on whatever you want to spend it on, and then ask the Federal Government to pay for your future wage loss and medical care.

Your social security disability benefits will most likely be reduced by the amount of the settlement allocated toward future indemnity, spread out over your lifetime.   I can usually give you an idea of how much your social security disability benefits will be reduced, but I advise that you speak to a social security representative prior to final settlement.  Also, if you are receiving or may receive medicare/medicaid, prior to finalizing a settlement, we must get approval from medicare (CMS).  CMS will usually tell you that a certain portion of the settlement meant for your future medical care must be held in a separate account to be self administered by you.   It is your money, but if you need medical treatment for your injuries, you would have to use this money first,  prior to asking for the government to pay for your care.   Usually, I will not settle a case without first knowing the amount CMS will want you to hold aside in a separate account, or make the settlement contingent on you being satisfied with the amount they ultimately state.   There is no use settling if the amount is too high.

Despite the fact that Social Security and Medicare affects a future workers’ compensation settlement, it is still clearly in your best interest to apply for social security disability if you feel you qualify.   My experience is that the workers’ compensation cases are usually worth significantly more once social security accepts an individual as disabled.

28: If I Owe Child Support, Is There A Lien On The Settlement?

Yes.  If you owe child support, there is a lien on the case and you will have to pay part of your settlement to child support.  Usually Child Support Enforcement will accept ½ of your net settlement to go toward any outstanding balance of child support owed.

29: Once I Have Agreed To Accept A Settlement, How Long Will It Take For Me To Get The Money?

From the day we reach a tentative settlement until you receive your money, it will take approximately six to twelve weeks, and in some situations it could take much more time.  If you are a possible medicare/medicaid recipient, as discussed above, it could take almost a year to actually get the money.  Please be patient with this process.  As shown below, my office has very little to do with the settlement process once a case settles.   I understand that you want your money as soon as possible, but please keep in mind that my office would have no reason to delay you getting your money.  Remember, I don’t get paid until you get paid.   The settlement process is usually as follows:

1. The carrier hires an attorney, if they don’t already have one.
2. The carrier’s attorney will draw up the settlement documents and forward them to my office.