Under Florida’s workers’ compensation law, injured workers have access to no-fault insurance benefits that compensate them for their economic losses, such as medical bills and lost wages. However, “no-fault” does not mean the process is easy. The insurance company has attorneys whose sole mission is to reduce the amount of benefits that injured workers receive, or even deny these benefits altogether. These lawyers will jump on any deficiency in a claim, so injured victims need experienced attorneys from the outset to avoid some common mistakes.
Mistake #1: No Lawyer
Many injured victims assume that since there is no court proceeding, there is no need to hire a lawyer. They may further assume that since workers’ compensation is no-fault insurance, that they will quickly receive their benefits with little or no haggling or red tape.
The reality is that workers’ compensation is an adversarial process just like any other negligence or court case because there is an insurance company lawyer on the other side. And, regardless of what television commercials with catchy jingles and humorous writing may imply, the insurance company is not “on your side” if you are an injured victim. These huge corporations make money by collecting premiums and they lose money by paying claims.
The hearing officer is not “on your side” either, even though he or she is from a state agency that theoretically advocates for injured workers. That is because the state agency obtains funding by collecting premiums and not by paying claims.
It is absolutely essential to have an attorney in your corner to even the odds. Injured victims without lawyers are basically at the mercy of the insurance adjuster and the company’s posse of lawyers. Moreover, some hearing officers may believe that unrepresented victims do not take the process very seriously.
Mistake #2: No Second Opinion
Unfortunately, injured workers in Florida cannot choose their own doctors, at least in most cases. Typically, the insurance company assigns a physician to the case. This doctor is considered your “authorized” treating physician under the workers’ compensation law. Typically, these workers’ compensation physicians must meet rigorous standards and are typically independent-minded, but there are always exceptions. On the plus side, it is difficult for the insurance company to challenge the medical diagnosis or treatment plan in the case, since the insurance company’s own client selected the doctor that rendered the opinion.
Injured workers do have the right to a second opinion, and exercising this right is often the next best thing to an independent doctor. Furthermore, in some cases, an attorney may be able to partner with an independent medical expert. Even if that person cannot examine and treat the victim, this independent doctor can usually at least review the file and render a professional opinion based solely on the written records.
Mistake #3: Settling Too Quickly
The insurance company knows that injured victims are not working and are thus under financial duress. While this situation is not a legal weakness that the lawyers can exploit, it is certainly an economic one. So, the first settlement offer is nearly always a lowball offer.
The system itself may also work against injured victims. The timetable varies significantly by location, but largely because of staff cuts, bureaucratic delays, and case backlog, it is not unusual for some victims to wait several months, or even longer, for their hearing dates. As the clock keeps ticking and the pile of unpaid bills keeps getting higher, the financial pressure for a quick settlement increases.
A skilled attorney makes a big difference. Represented victims typically get higher settlement offers because the insurance company is less likely to pick a fight with an experienced attorney than with an unrepresented victim. They will also evaluate a case much more accurately when they are aware that the opposition has the experience to properly evaluate the claim and take it in front of a judge if they do not.
Mistake #4: Not Pursuing Available Noneconomic Damages
Florida’s workers’ compensation law has an exclusive remedy provision which states that the no-fault route is the only way to recover compensation for job injuries. However, in some cases, injured victims can sue outside workers’ compensation and receive money for their non-economic damages, such as pain and suffering, loss of consortium (companionship), emotional distress, and loss of enjoyment in life. These situations include:
- Intentional Injury: Workplace injuries are almost never intentional in the sense that an employer stages an incident to hurt a worker. However, employers can sometimes act with such a reckless disregard for the workers’ safety that, legally, the state of mind borders on intentional injury.
- Responsible Third Party: If the injury was related to a defective product or a negligent co-worker, that third party may be liable for noneconomic damages.
These cases proceed like any other negligence cases: The victim has the burden of proof to either prove negligence or a certain statutory violation.
For prompt assistance with a workers’ compensation plan, contact Barnett, Lerner, Karsen & Frankel today.