Workers Compensation Mediations

Under Florida workers' compensation law, a mediation is required before any dispute about workers’ compensation benefits can be presented to the judge of compensation claims (workers' compensation judge) to decide at a hearing. When a workers' compensation claimant (injured worker) believes he is entitled to a workers' compensation benefit that the employer and its workers’ compensation insurance carrier (employer/carrier) have not provided, the claimant files a Petition for Benefits. The petition is sent to the judge of compensation claims to hold a final hearing (trial) after which the judge rules on whether the claimant is entitled to the benefits claimed. Before the judge schedules the final hearing, Florida law requires the parties to attend a mediation and discuss the benefits in the Petition for Benefits. What is a mediation? A mediation is a meeting of the parties in which a mediator acts to encourage and facilitate the resolution of disputes prior to those disputes being decided by a judge. The mediator brings the parties together with the hope that they can informally discuss the benefits at issue and resolve any disputes. The mediation is an informal discussion. There is no formal questioning or testifying. The judge is not allowed to know the substance of any of the discussions that occurred during mediation. The mediator facilitates the discussion but does not have any authority to decide the issues or to force either party to agree to anything. When does the mediation occur? A mediation is scheduled by either the parties’ attorneys or by the state mediator’s office and must be held within one hundred and thirty (130) days after the filing of a Petition for Benefits. Who is the mediator? The mediator is a neutral party who attempts to help the parties talk out any disputes they have. The mediator may be either a lawyer employed by the Florida Division of Workers’ Compensation or a private mediator selected by the parties to act as the mediator. Who attends the mediation? A representative of each party and each party's lawyer must attend the mediation. The employer/carrier may bring one or more representatives from the employer or the insurance carrier. Who pays for the mediation? There is no charge to either party for a mediation with the state mediator. If the mediation is with a mediator chosen by the parties because there was no available opening with a state mediator, the employer/carrier pays for the mediation. Where is the mediation held? A mediation with the state mediator is held at the state mediator's office, which is next door to the office of the judge of compensation claims. For accidents occurring in Pinellas and Pasco Counties, that is 501 1st Avenue North, Suite 300, St. Petersburg. For accidents occurring in Hernando and Hillsborough Counties, that is 1000 North Ashley Drive, Suite 309, Tampa. A mediation with a private mediator chosen by the parties is held wherever the parties agree to hold it. How does the claimant dress for mediation? There is no formal dress requirement. The claimant should dress tastefully in casual clothes. What does the claimant bring to the mediation? The claimant is not required to bring anything to the mediation unless his attorney specifically instructs him otherwise. What happens at the mediation? A mediation is an informal meeting so there is no formal agenda. Usually, the mediator gathers all the parties together in one room and explains the basics of mediation, such as most of the items in this outline. The parties then may discuss the benefits at issue while they are all together, or may separate into separate rooms with their respective attorneys and use the mediator to shuttle the parties' positions back and forth. The parties are only required to discuss the benefits actually in the pending Petitions for Benefits. However, the parties may discuss any other aspects of the case if all parties agree to do so. Frequently, the employer/carrier may wish to discuss an overall settlement in which the claimant accepts a lump sum of money to give up all rights to past and future workers' compensation benefits. Settlement and discussing overall settlement is purely voluntary and the claimant does not have to settle or discuss settlement if he does not want to. How long does a mediation last? There is no time limit to a mediation. The parties continue to discuss the issues until they either have resolved all the issues or they reach the conclusion that they will not be able to resolve the issues. What happens at the end of the mediation? If the parties have resolved all the issues, the mediator sends a form to the judge noting that all issues have been resolved and therefore no final hearing will be needed. If any issues are left unresolved, the mediator sends a form to the judge stating that the parties did not resolve all the pending issues so that the judge knows to schedule a final hearing on the unresolved issues. If all the issues are not resolved, when does the final hearing occur? The date of the final hearing is scheduled by the judge of compensation claims, and is to occur within 210 days from the date the Petition for Benefits was filed.

		Workers Compensation Depositions

A deposition is testimony under oath in response to questions by lawyers who are representing parties in a legal matter. The plaintiff who brings the legal claim and the defendant against whom it is brought are called parties to the legal action. In a workers' compensation claim, the injured worker, called the plaintiff or the claimant, is a party as is his employer and his employer’s workers' compensation insurance carrier, together referred to as the employer/carrier. The person being questioned is called the deponent. The lawyers ask the deponent questions which he must answer much in the same manner as if he were called as a witness at a hearing before a judge or jury. Whose deposition can be taken? A party may depose (take the deposition of) anyone that the party believes may have some information bearing on the case. The employer/carrier routinely deposes the claimant (injured worker) in a workers' compensation claim. Either party may depose doctors or other witnesses. A party may elect not to take depositions for various reasons as part of that parties trial strategy. Where are depositions held? A deposition is usually held in either the office of one of the lawyers involved in the matter or at the office of a shorthand stenographic reporter, commonly called a court reporter. The lawyer or party who scheduled the deposition to be held directs where it is to be held. Who attends depositions? The deponent must be present and any other party to the legal matter may attend as may any lawyer representing a party to the matter. The deponent must attend and answer the questions under oath or risk being held in contempt of court. If the deponent is a party to a particular legal matter, such as an injured employee in a workers' compensation matter, he must appear at the deposition at the time and place as indicated if either he or his lawyer is served a notice indicating another party wishes to take his deposition. If the deponent is not a party to the legal matter, he must appear at the deposition only if he is served a subpoena directing him to appear. The deponent's family members, friends, or other potential witnesses are generally not entitled to be present at the deposition. How is the deposition conducted? The party who scheduled the deposition is allowed first to question the deponent about any matter which may be of importance to the case. Before the questioning starts, the court reporter will swear in the deponent much like in court. After the lawyer who has scheduled the deposition has asked his questions and the deponent has answered them, the other parties’ lawyers are entitled to ask questions if they desire. In a workers' compensation case, it is very common for the claimant's lawyer not to ask his own client any questions at the deposition since he may discuss these matters with his client outside the presence of the lawyer for the employer/carrier if he needs such information. The court reporter records word for word what everyone says at the deposition. Anyone who wants to purchase a typed transcript of the deposition may do so by contacting the court reporter and paying for such transcript. Can deposition testimony be changed? If any party orders the deposition transcribed, the court reporter will type the transcript and will contact the deponent to allow the deponent to read the transcript and note on a correction sheet any changes that need to be made, either because the court reporter took down some testimony incorrectly, or because the deponent remembers things differently and wishes to change one of his answers. If there are no corrections to be made, the deponent signs a correction sheet stating that the transcript is correct as is. The deponent may also waive his right to review the transcript and allow the court reporter to type it and send it to the parties without the deponent's review, but we advise a workers' compensation claimant never to do that. Why are depositions taken and how are they used? The primary reason for taking a deposition is to enable the lawyer who scheduled to discover any information that may be useful in the case and to further discover what the deponent will testify to if the matter goes to court. Since the deponent is placed under oath at the deposition, he will have some explaining to do if he tries to change his story in court at a later hearing. Unless the deponent is qualified as an expert in a particular field, such a doctor, or unless the deponent is a party to the legal matter, the deposition cannot be entered into evidence at a hearing unless all the parties agree. What questions are asked at depositions? The questions asked of the deponent at the deposition may involve anything to do with matters that are either relevant in the pending legal case, or which may lead to facts which may become relevant. Therefore, it is difficult to predict exactly what will be asked. In a workers' compensation case, the employer/carrier's lawyer will usually ask the claimant many broad background questions so that he understands everything about the claimant's education, work history, medical history, and anything else that may become important in the case. There are very few questions that the employer/carrier's lawyer cannot ask a claimant, aside from questions about conversations the claimant has had with his lawyer or his lawyer’s staff. Does the deponent have to answer all the questions? The topics that the lawyer scheduling the deposition is allowed to ask about are very broad. He may not ask a person about conversations or communication that person has had with his lawyer or his lawyer’s staff. The deponent is not required to answer any questions that may call for him to admit to a crime. Other than these exceptions, the deponent usually has to answer everything asked of him. If there is something objectionable asked, the deponent’s lawyer will object and may instruct his client (the deponent) not to answer. However, there are many depositions in which there are no objections made. What does the deponent bring with him to the deposition? The deponent should not bring anything with him to the deposition other than what his lawyer instructs him to. The claimant in a workers' compensation matter sometimes hurts his own case by bringing various documents with him to the deposition and pulling them out to refer to them at the deposition. This only allows the employer/carrier's lawyer to ask additional questions and to review at that time documents that he may not have seen. Things for the Claimant to Keep in Mind about the Deposition Do not be concerned if your lawyer knows the court reporter or the other lawyers If your lawyer is very experienced in his field, he will frequently know the court reporter and the lawyers on the other side from previous hearings and depositions. Therefore, do not be alarmed if your lawyer knows the court reporter or the insurance carrier's lawyer and speaks to them upon entering the deposition room. Dress appropriately This does not mean wear a suit and tie, but remember that the lawyer from the employer/carrier will be there questioning you and will be evaluating what type of appearance you make as a witness. You will want to make a neat appearance. You may wear slacks or shorts and a shirt with sleeves. Wait for the questioner to finish the question before answering Often the deponent is nervous and anxious to answer the question so that he interrupts the questioner before the questioner has completed the question. The court reporter is unable to record two people talking at once. Also, the deponent may not fully understand the question being asked until he allows the questioner to finish the question. Wait to answer after any objections Occasionally a question may be legally objectionable and one of the lawyers will interrupt by objecting. If a lawyer is objecting, you should wait until the objection is stated. He should then answer the question unless his lawyer has instructed him not to. Do not guess at answers No one expects you to remember every single fact about questions you may be asked. You should not guess at any answer but should instead let the questioner know that you are estimating and am not certain of the answer. For instance, if you are asked how long you worked for a particular employer and do not recall exactly, you may answer something like "I don't recall exactly, but it was probably about 5 to 6 months." This is a perfectly acceptable answer. Do not use gestures and do not mumble You must remember that the court reporter can only record sounds and not gestures. Any gestures made as part of an answer will not be recorded. For example, if you are asked where you are having pain and instead of saying “in my right arm just above the elbow", state "right here" while pointing to your right arm, it will be impossible later for anyone reading the deposition to understand where you were pointing. Similarly, if instead of answering "yes" or "no", you either shake your head or answer something like "uh-uh”, the answer may not be taken down or may not be taken down correctly. Do not discuss any attorney/client conversations You cannot be required to discuss anything about conversations or communication between you and your lawyer or the lawyer's office staff. You should not volunteer anything about such communications and, if asked about them, should give your lawyer time to object to the question. Once you answer a question, stop talking and wait for another question Sometimes the attorney for the employer/carrier will not ask another question immediately after the claimant finishes answering the earlier question. He may do this with the hope that the claimant will continue to rattle on and keep talking perhaps giving away important information that was not asked. The employer/carrier lawyer may also try to get the claimant to keep talking by making facial gestures such as raising his eyebrows in nonverbal communication. The claimant should simply answer the question as briefly and honestly as possible and then be quiet and wait for the next question. Do not volunteer information You are required to attend the deposition and answer questions, but are not there to help the other side with their case. Sometimes, a deponent volunteers information that helps the other side. For instance, instead of answering a question about whether the deponent knows the name of a witness to the accident by truthfully answering "no", the deponent will sometimes try to help the other side. Instead of simply answering "no", he may say something such as "I don't know, but you need to talk to Clarence who was also working on our jobsite, because I think he knows the guy." Also, do not bring any documents into the deposition room unless your lawyer tells you to. Your lawyer may not want to ask you any questions at your deposition Your lawyer can speak with you in private before or after the deposition and therefore may not want to ask you any questions at the deposition with the employer/carrier's attorney there. Tell the truth! The insurance carrier has been and will continue to investigate everything you say. If you testify to something that is not true or is misleading, you may lose your rights to all workers’ compensation benefits.

		Workers Compensation Settlements

There is no legal definition for the term settlement, but it usually means the claimant's (injured worker) giving up all of his past and future workers' compensation rights, both to money benefits and to medical benefits, in return for a lump sum payment from the employer/carrier (the employer for whom he worked when he was injured and its workers compensation insurance carrier). After the settlement, the employer/carrier is not responsible for any further workers' compensation benefits of any sort except those as expressly set forth in the settlement documents. Under Florida law, workers' compensation settlements are purely voluntary. Neither side can force the other to settle. The parties frequently discuss settlement at the mediation conference, but settlements may occur at any stage of the case. There is no formula for computing what an employer/carrier will pay to settle the case. The carrier estimates the cost of the case from that point forward if it does not settle and bases its settlement evaluation on that figure. Likewise, the claimant estimates what he may draw in compensation money benefits and medical benefits from that point forward if he does not settle and bases his settlement proposal on that figure. Usually there is negotiation back and forth before the parties agree on a settlement figure. If the claimant is not represented by an attorney, the settlement may take longer because the judge of compensation claims will require a live hearing to review the settlement documents. If the claimant is represented by an attorney, the parties do not need to attend a live settlement hearing. The claimant usually must sign a settlement release stating the terms of the settlement and acknowledging that the claimant is giving up all workers' compensation rights, an affidavit attesting that he understands what he is doing in settling, and may have to sign additional documents depending on the settlement. The employer/carrier will usually not settle the workers' compensation case unless the claimant also agrees to settle all potential legal claims against the employer and carrier, such as claims for unlawful discharge of employment, discrimination in employment, wrongful payment of overtime, etc. Florida law requires that the claimant pay his own attorney fees out of the settlement proceeds. The attorney fee will be based upon the statutory guideline attorney fee in the Florida Workers' Compensation Law (see chapter 31, Attorney Fees for Representing a Claimant, in the Florida worker's compensation law booklet that we gave you). In addition to his attorney fee, the claimant will also have to pay his case costs from his portion of the settlement proceeds. The attorney fee the claimant pays from the settlement is in addition to any other attorney fee that his attorney may be paid from the employer/carrier or from the claimant as a result of securing benefits other than the settlement. The claimant must pay from his portion of the settlement proceeds any liens asserted by Medicare, Medicaid, the Veteran's Administration, or a health insurance company that provided medical care for the workers' compensation injury. The claimant will also have to pay from his portion of the settlement proceeds all or part of past due child support, depending on the amount of the past due child support and the amount of the settlement. Federal law requires the claimant to take Medicare's interest into account in the workers' compensation settlement. If either, 1) the claimant is eligible for Medicare at the time of settlement, or 2) the settlement is over $250,000.00 and the claimant would likely become eligible for Medicare within 30 months of the settlement, Medicare recommends that the parties submit the settlement documents showing the allocation of the settlement between compensation money benefits and future medical benefits to Medicare to show that the claimant is setting aside set a reasonable amount from the settlement proceeds for the claimant to pay his future medical care. This means that if one of the above two conditions are met, the claimant must set aside a reasonable amount from his share of the settlement proceeds to pay for future medical expenses needed as a result of the workers' compensation injury. This can be done by either having the claimant set aside a special bank account in which to hold the money to pay for future medical care needed as a result of the workers’ compensation injury, or by having a professional custodian hold the money and pay such future medical bills. In some cases, the employer/carrier may require prior approval from Medicare as to the amount set aside for future medical expenses. If the claimant properly takes Medicare's interest into account and spends a reasonable figure from the settlement on his workers' compensation injury future medical care using the workers' compensation fee schedule rates, Medicare may thereafter pay for the medical care needed as result of the workers' compensation injury. If the claimant does not properly take Medicare's interest into account, Medicare may in the future refuse to pay any of the medical expenses needed as a result of the workers' compensation injury or may agree only to pay such future medical expenses after the claimant has paid what Medicare considers to be a reasonable amount that should have been withheld from the settlement proceeds for such expenses. A claimant meeting one of the two conditions above can either set aside from the settlement proceeds what he estimates to be a reasonable amount for his future medical care, or he can first seek Medicare's approval of such amount. If he proceeds with the settlement without first seeking Medicare's approval of the amount set aside for future medical care, he runs the risk that Medicare may not pay for his future medical care after he spends the amount he set aside. The safest way to proceed is for the claimant to seek Medicare's approval as to the amount set aside for future medical care before the settlement is agreed to, or at least before the settlement amount is disbursed. However, since Medicare may take months to decide if they agree with the amount set aside, seeking Medicare's approval first will likely delay the settlement. IMPORTANT - once a settlement offer is made and accepted by the other side, it is a binding contract and neither side can back out. This may be true even if the settlement involves signing additional documents. Common Questions about Florida Workers' Compensation Settlements What is a workers’ compensation settlement? There is no exact legal definition but this usually means a lump sum payment by the employer/carrier (the employer and its workers' compensation insurance carrier) to the claimant (injured worker) in return for the claimant's giving up all past and future workers' compensation rights from the accident or accidents being settled. Does the claimant have a right to a settlement of his Florida workers' compensation case? No. Florida workers' compensation settlements are purely voluntary. Neither the claimant nor the employer/carrier can force the other to settle the case. No judge or court can award a settlement or force either side to settle the case. Who decides when to negotiate a settlement? Since settlements are voluntary, there are no rules on this. Either party may propose a settlement at any time and the case may be settled at any time, as long as the claimant is represented by an attorney. If the claimant is not represented by an attorney, there are additional rules governing settlements which involve additional paperwork, a requirement that the claimant wait to settle until he is placed at maximum medical improvement by all his doctors, a requirement that the settlement not be effective unless a workers' compensation judge approves it, and perhaps a live hearing in front of a workers' compensation judge. Is a party required to keep its settlement offers open? No. Both the claimant and the employer/carrier can withdraw its settlement offer and refuse to settle but only up until the settlement proposal is accepted by the other side. After agreeing on a settlement, can either side change its mind and reopen the case? No. If the claimant tells his attorney to tell the employer/carrier that the claimant accepts a settlement offer, the claimant will be bound by the settlement offer and cannot later change his mind and back out of the settlement. How is the settlement amount figured? The settlement amount is negotiable and there is no formula for computing it. The workers’ compensation insurance carrier estimates what it will have to pay in future workers' compensation benefits if the case does not settle, and bases its settlement offer primarily on that estimate. Since the claimant is settling workers' compensation benefits, only workers' compensation benefits figure into the settlement amount. IMPORTANT to remember - the settlement amount is based upon what the claimant is likely to draw from that point forward in workers' compensation medical and compensation benefits. Since matters such as the following do not affect workers' compensation benefits payable, they are not figured into the amount of the workers' compensation settlement: claimant's inability to earn as much in the future as before the accident; how much money the claimant wants or needs; the employer/carrier's past behavior including negligence; claimant’s pain and suffering; what the claimant lost as a result of the accident, such as apartment, car, job. How much does the claimant clear from the settlement amount? That depends on the claimant's attorney fees, case costs, and any other legal liens or lawful deductions as explained below. Per Florida law, the claimant must pay his own attorney fees from the settlement proceeds. The employer and the workers’ compensation insurance carrier cannot pay the claimant’s attorney fees. It must be deducted from the settlement. The amount of the attorney fees need to be approved by the workers' compensation judge. There may be other deductions from the claimant's portion of the settlement amount. For example, government agencies and programs (Medicare, Medicaid, social services, VA, etc.) may have a right to reimbursement from the settlement proceeds if the claimant has received benefits from such agency or program. If the claimant owes past due child support, some or all of the past due amount must be deducted from the claimant's portion of the settlement. The workers’ compensation judge will decide the amount from the settlement to be paid to past due child support. The claimant is given a Closing Statement to sign that reflects the amount of the settlement, the case costs to be deducted from the claimant’s share of the settlement, the attorney fees to be paid by the claimant from the settlement, and the net amount to the claimant. Must the workers' compensation judge approve the settlement? If the claimant is not represented by an attorney, the workers' compensation judge must review and approve all the settlement papers, review all the medical records, and will schedule a live hearing to take testimony about the proposed settlement. If the claimant is represented by an attorney, a live hearing is usually not required and the claimant's attorney will submit the settlement documents to the workers' compensation judge. Therefore, the settlement usually moves faster if the claimant is represented by an attorney. How long does the settlement take? That depends on many factors such as how long it takes for the parties to agree on the exact settlement language. The settlement will nearly always proceed faster if the claimant is represented by an attorney since there are additional legal requirements for settlement if the claimant is not represented by an attorney. When does the claimant receive the settlement proceeds? If the claimant is represented by an attorney, the employer/carrier must forward the settlement check to the claimant's attorney once the workers' compensation judge approves the attorney fee and stipulation on past due child support. The employer/carrier must do so within the time agreed to by the parties. If no time period was agreed to, the check must be mailed fourteen (14) days after the judge’s order. The claimant’s attorney is required by Florida law to hold the settlement check in a special bank escrow account until it is safe to disburse the settlement funds. The settlement is then distributed per the closing statement that has been signed by the claimant and his/her attorney. Our law firm policy is to disburse the settlement funds on the 6th banking day after the date the settlement check was deposited in the special escrow account, unless the bank indicates that the settlement check has not yet cleared. Important – the business policy of holding the settlement check in escrow for six (6) days is not to be confused with the bank regulations on placing holds on accounts. Even though the bank may have removed the hold from the account after three (3) days, good business policy requires that it be held longer to ensure that the settlement check clears. Can the claimant’s attorney advance the claimant money before disbursing the settlement funds? No. Florida law does not allow an attorney to lend money to his client or even to advance money to his client to be repaid out of a pending settlement. What happens if the case never settles? If the case never settles, the claimant can continue to apply for and draw any workers’ compensation benefits to which he is entitled. If the claimant believes he is entitled to workers' compensation benefits that are not being provided by the employer/carrier, he may file a Petition for Benefits seeking such benefits that may ultimately lead to a trial-type hearing in front of a workers' compensation judge. The disability benefits usually end after a certain time, but the medical benefits may go on forever. The claimant can continue to apply for workers' compensation benefits unless a 365-day gap in benefits and medical care occurs. This 365-day rule does not apply for the first two (2) years after the accident. Beginning on the date two (2) years after the accident occurred, there can never be a day in which the claimant did not receive some workers’ compensation benefit, either a workers’ compensation check or a medical benefit, within the previous 365 days. If that occurs, the entire case is over and the claimant is not entitled to any further workers' compensation benefits from that accident. This rule is called a Statute of Limitation.

		Employer Retaliation Against the Workers Compensation Claimant