What To Do When You Get A Check For ½ Your Damages Or A Denial

Did you find yourself left without a sufficient insurance payout after filing a hurricane insurance claim? Are you wondering what you can do to receive the payment you are missing? C.W. Smith Law, P.A. is here to help you. They know what it takes to get a proper payout from an insurance company and they are committed to helping their clients recover after a hurricane. Contact them for more information.

Hurricane insurance claim payouts

After something as traumatic as a hurricane occurs, the last thing we want to worry about is getting money from the insurance company. Unfortunately, this is frequently the first step that most people have to take when they have suffered damage to their home. This places added stress on the homeowner, who is already suffering from financial stress as well as emotional stress.

However, what happens when the insurance claim that you sent in only pays out half of what you need to cover your damages? Or what if your insurance company denies your claim altogether. Often, insurance companies will base these unfair decisions off minor mistakes in the claim forms or things that would have gone unnoticed in the chaos of the aftermath of a hurricane.

This is entirely unjust to you who did your best to follow their rules and file your claim as quickly as you could. Especially if you have already been through the process of documenting the damage and sending in all the paperwork of all the repairs that you’ve done. Because this process is so extensive, going through it all again is hardly an option.

What do you do?

In this instance, you may be left without a direction to turn. However, there are resources for you to get what you need from your insurance company. Make sure that as soon as you see the insufficient payout from your insurance, that you contact the attorneys of C.W. Smith Law, P.A. They can help you get in touch with the insurance company to see what the problem was and make sure that you get the compensation that you need to properly repair your home.

In the event that the insurance company is reluctant to be responsive, your lawyer will be able to fight a case on your behalf in order to ensure that you get the money that you deserve. With their help you will be able to handle the insurance company in the care of someone who has your best interests in mind. They know what it takes to face off against the insurance companies and come out successful.

Contact Us

Don’t struggle after a hurricane insurance claim leaves you with insufficient funds to recover. Contact C.W. Smith Law, P.A. and get the help you need to get back on your feet and rebuild your home. An insurance company can be complicated to tackle on your own, but C.W. Smith Law, P.A. is there to help you.

You Filed Your Claim, Now What?

Hurricane Irma left extensive damage to many Floridian homes. Homeowners not only had to face costly repairs to their home and property, but they also had to deal with insurance companies and filing claims under their homeowners’ insurance policy. But what happens after? You have filed your claim, but where is your compensation? Why is your insurance company so slow to respond? If you have questions about the handling your insurance claim, contact C.W. Smith Law for more information. Read more

Six Steps in Preparing your Hurricane Claim

After a major storm, filing hurricane insurance claims can be a tricky and difficult process in an already tumultuous time. By following a set of steps to prepare for your claim, you can ensure that the process will run more smoothly and that your claim is taken care of accurately. C.W. Smith Law, P.A., a business offering legal services throughout Central Florida, can offer you guidance and assistance, thus making sure your hurricane insurance claim is properly addressed by your insurance company.

1 Call your insurance company as soon as possible to report the claim and to begin the insurance claims process.

In order to ensure that your hurricane insurance claims are taken care of as quickly as possible it is important to make sure that you contact your insurance company immediately. Even if you don’t know all of the damages or what repairs will cost, call your insurance agent or company directly and promptly to make sure your claim has been filed. Especially after a severe hurricane where many people are making claims at once, it is important to make the call early as waiting periods can lengthen. Also, some insurance companies have policy language which can potentially exclude claims not made promptly.

2 Document your damages

Be certain that before you make any changes to your home that you have documented proof of all the damage that the hurricane caused, and that you have given your insurance company adequate time to inspect the damages as well. Do so by taking pictures of all areas around the property, as well as video, and making a list of the things damaged and items lost. This includes personal property inside the home as well as damage to structures.

3 Protect your home and make basic repairs.

One of the most important things moving forward with your claim is to ensure that your home is protected against any further damage. Your insurance company will not bar you from making basic repairs to your home such as setting a tarp on your roof or covering broken windows. These changes are essential in preventing the damages from getting worse than they already are. Failure to protect your property to the extent possible can also reduce or limit claims for additional damages after the fact.

4 Keep track of any expenses towards repairing the damage

Be sure to keep any receipts of expenses paid toward repairing your home as well as any expenses spent on evacuating. Especially in the event of a hurricane, insurance companies may pay a certain amount per day for your evacuation expenses to cover your hotel and meals. By keeping track of and documenting all of these expenses, you will be sure to speed up your claim process.

5 Record any changes you make to your home

As important as it is to document the initial damages, it is equally important to document any changes you make to your home. Keep visual documentation through photos and videos as well as written, detailed documentation for any of the repairs made on your home. This can ensure that your insurance company has a record of any repairs, either made by you or someone else, and when they were made. Other than basic repairs being made to prevent additional damages, you must give your insurance company a chance to inspect your home before starting your repairs and under some policies your insurance company made get to pick your contractors.

6 Written Proof of Claim & Sworn Statements

Many insurance policies require that you provide a written “sworn proof of claim” reflecting certain information on your policy, the insured, your claims and your damages. Under some policies that must be sent to the carrier within thirty or ninety days of the loss. Some insurance companies will not tell you that this must be done and may try and use it as a basis to deny your claims later. If your insurance company requests a sworn verbal statement or examination under oath (EUO), failure to provide that statement may provide your insurance company with a basis to deny your claim. Any time a sworn proof of claim is required or an EUO is requested, it is a good idea to speak with and likely retain an insurance attorney regarding your rights and responsibilities.

Contact Us

If you need assistance in facing your insurance company with your hurricane insurance claim, contact C.W. Smith Law, P.A., a business in Orlando, Florida offering law services, for further information and guidance on filing your insurance claim.

Workers Compensation Medical Benefits & The One Time Change in Physicians

Need workers compensation medical benefits? C.W. Smith Law P.A. in Orlando FL, has the answers. If your claim has been accepted and medical care is about to be provided to you, then the insurance company is entitled to pick your physicians except under very special circumstances.  This usually means that very conservative doctors see the most workers’ compensation patients.

A claimant is, however, entitled once in the claim to a “one time change” in physician pursuant to Fla. Stat. Sec. 440.13(2)(f). The request must be made in writing to the Carrier (or self insured employer). Note: you should never request a one time change without speaking to a qualified attorney first. Some adjusters will recommend that you request the change when they do not like what the doctor they picked is doing or saying.  Then, if you make that request in writing the initial doctor will be deauthorized as a matter of law.  You also only get to make a one time change once in your claim, regardless of the number of specialties you are treating with or seeing.  An exception would be if your one time change physician retires or you move out of the area.

You are entitled to the physician of your choosing within one of the specialties with whom you are treating with, if you make a request for one time change and the Carrier does not respond within five days of their receipt.  If the Carrier responds within five days of their receipt of that request with the name of a doctor of their choosing, then the right to choose shifts back to the Carrier.  That can change if your adjuster fails to authorize that doctor within a reasonable period of time.  As you can imagine, the timing and method of your request for one time change is very important, which is why we suggest that it should only be done with the assistance of a qualified attorney.

If your claim is covered by a Managed Care Arrangement or MCA, then you are entitled to pick your Primary Care Provider or PCP from the MCA list of physicians.  Also, if no medical care is provided by the Carrier (after a request for care), and in some circumstances when other care is not timely provided, then the right to select your own physician can be exercised under the “self-help” provisions of Fla. Stat. Sec. 440.13(2)(c). When you can do that, and doing that correctly to gain the benefits of the statute, are very fact specific and technical and you should always speak to a qualified attorney about those rights in order to preserve them.

The important thing to remember when looking for workers compensation medical benefits and the one time change in physicians is to speak to a qualified attorney. C.W. Smith Law P.A. is located in Orlando, Florida and Mr. Smith would love to speak with you directly regarding your rights. Getting you the benefits you deserve is the biggest concern and the goal of our attorneys at C.W. Smith Law P.A.

Our Attorney Shares Preparation Tips for Hurricane Season

If you live in Florida, you have probably experienced a hurricane. During hurricane season you must be extra precautious because you never know when disaster is going to strike. Unfortunately you cannot predict the weather so it is vital that you are prepared for it, even if there is a suspicion of a hurricane and it doesn’t end up hitting your region. C.W. Smith Law, P.A. finds it to be very important that you know the laws that can protect you or benefit you when it comes to hurricane damage. Now is always the best time to get prepared for hurricane season and now is the best time to update your insurance coverage as new coverage will normally not apply to storms existing when the policy is issued.

Laws Regarding Storm Shutters

 If you are involved in a natural disaster such as a hurricane in Florida, there are laws that protect you as a homeowner/condo owner. If you own or rent a condo, there are some laws you should be informed about. Section 718.113(2)(a) refers to material alterations and provides that any alterations must be in accordance with provisions of the governing condominium documents, and if they don’t have a governing provision, they must be approved by 75% of the total voting administration. The directors may not have the authority to approve the installation of doors and windows if they are material alterations. Section 115(1)(e) addresses previously installed hurricane protection when the association votes to install throughout the condominiums. If a condo owner already has hurricane protection that complies with the current code, the owner receives a credit that is equal to the pro rata portion of the assessed installation cost assigned to every unit. This means that the owner does not have to pay the portion of installation that would otherwise be applicable to their unit but is not excused from the pro rata portion of the installation cost for the common elements.

When it comes to free-standing home provisions and law, there may be restrictive covenants in your neighborhood so please consult with your home owners association or your attorney in order to obtain the most up to date information.

What You Need To Know

 Whether a storm is headed your way or not, be sure to keep your insurance coverage information and agent contact information handy.  An easy way to do that is to take a picture of your coverage information or bill with your cell phone and also make sure that your agent’s contact information is in your phone.  That way if you have to evacuate at the last minute, or if you have to leave your home after a storm, you will have that information with you.  You should also keep a list of your belongings or take a brief video of each room in your house (and your garage) including closets so that you can itemize your belongings if the worst occurs.

If your home or business is damaged by a storm, you will need to notify your insurance company as soon as possible as many policies have provisions which can bar a recovery if you wait too long.  Some policies require a written sworn “proof of claim” be submitted within 90 days of the loss as well, or the claim could be denied.  You will need to take actions to secure your property to the extent that is possible after the loss.  That means boarding broken windows, putting tarps on damaged roofs, and other actions where possible under the circumstances.  Some insurance policies allow your insurance company to pick the contractors to perform the repairs to your home, but most allow you to use whomever you like.  Be sure to carefully select your contractors and to have any contracts reviewed by an attorney before signing them, as some contracts can permanently assign away your rights with your insurance company.  Early on is the best time to speak to an insurance attorney regarding your rights and responsibilities under your home owners’ policy and you should consider talking to our attorney at C.W. Smith Law, P.A. to ensure you are taking the right steps and to assist if you need to file a claim.

Contact Us

 When you need an attorney during hurricane season, or have a different type of loss at your home, contact C.W. Smith Law, P.A. today to speak with our attorney. We can help guide you in ways to protect your home and we can also file your claim for hurricane damage. Call us at 407-801-2667 or visit our website https://www.cwsmithlaw.com.


Legislating in the Dark: How New NCCI Worker’s Compensation Legislation May Affect Your Premiums

In September of 2016, the National Council on Compensation Insurance (NCCI) requested that the Florida Office of Insurance Regulation (OIR) allow them to increase the cost of worker’s compensation coverage by 19.6%. Though the initial requested increase was denied for being too high, OIR still approved a rate increase of 14.5%.

No one likes to hear about insurance rate increases, but this one is particularly sinister. The increase, which was supposed to go into effect on December 1, 2016, was created under dubious circumstances, allegedly breaking Florida’s Sunshine Law. Because of this lawbreaking—and the outlandish rate increase—attorneys and groups in Florida are fighting this resolution.

concerned woman


To understand this case, let us give you a little bit of background information on the two organizations involved in the ruling and what has been going on in Florida courts.


The NCCI is a not for profit organization that collects and organizes data relating to insurance, with a particular emphasis on workers’ compensation. Owned by its member insurers, the NCCI advocates for insurance companies and their interests.


The OIR is responsible to regulate insurance companies and enforce Florida laws relating to insurance companies. It also collects and distributes data about insurance for consumers, insurance companies, and employers to use for their information.

Recent Florida Supreme Court Activity

The biggest influence on the NCCI rate hike were two recent Florida Supreme Court rulings: Castellanos v. Next Door Company and Westphal v. City of St. Petersburg.

In Castellanos v. Next Door Company, the court found Section 440.34, Florida Statutes, unconstitutional, because it set out mandatory attorney fees. Now, attorneys are not limited to the amount of money they can collect on a worker’s compensation case, which critics say will result in more cases going to court.

In Westphal v. City of St. Petersburg, the court found Section 440.15(2)(a), Florida Statues, unconstitutional as well. That statute, which went into effect in 1994, put a 104 week limitation on temporary total disability benefits in workers’ compensation cases. This limitation caused a gap in benefits for people injured on the job, which violated the injured person’s constitutional access to the courts. The limitation is now 260 weeks, which is what it was prior to the 1994 change.

Breaking the Law

The rate increase will put strain on business owners in Florida, who will be forced to pay higher premiums to cover their employees’ worker’s comp. Called a “money grab” by attorneys, the rate increase is essentially designed to protect insurance companies from having to cover their customers.

To make matters even worse, in order to pass the rate increase, the NCCI and OIR broke Florida’s Sunshine Law while they were negotiating the increase.

The Sunshine Law requires that all laws are passed in “sunshine,” that is to say, out in the open. Under this law, Florida has prohibited backroom dealings in lawmaking. Miami attorney for injured workers, James Fee, challenged the rate increase as soon as it was approved in September, saying that NCCI and OIR held, “multiple, non-public, secret meetings.”

Indeed, there was only one public meeting held with regard to this huge rate increase, and there is evidence of several internal meetings at NCCI—and even some illegal meetings between NCCI and OIR—for which no minutes were kept.

In November, Florida judge Karen Gievers agreed that there was evidence of these secret meetings, and put a hold on the increase.

Appealing the Hold

Within five days of Judge Gievers placing a hold on the rate increase, OIR filed an appeal. Both organizations insist that they were in compliance with the Sunshine Law, and both are “disappointed with [the court’s] ruling.” The case is now waiting to go to the Florida Supreme Court, where a final decision will be made.

Put simply, this rate increase is bad for workers and businesses, but good for insurance companies. The alleged violation of the Sunshine Law sheds a bad light on NCCI and OIR, who are letting insurance companies’ interests get in the way of what is best for Florida.

Check out our practice areas—Chuck Smith is an experienced and accomplished worker’s comp attorney, and he can advise you on all matters relating to worker’s compensation and how this court case may affect you.


  1. http://www.insurancejournal.com/news/southeast/2016/09/27/427642.htm
  2. http://www.orlandosentinel.com/business/brinkmann-on-business/os-workers-comp-jump-20160531-story.html
  3. http://www.insurancejournal.com/news/southeast/2016/11/27/433200.htm
  4. http://www.insurancejournal.com/news/southeast/2016/11/29/433411.htm
  5. http://www.politico.com/states/florida/story/2016/11/comp-ruling-sends-business-107604

Understanding Jones Act Claims: Answers to 5 Frequently Asked Questions

Many people are unaware that a specific set of rules apply to maritime employees when they suffer accidents with injuries on the job. Unlike state worker’s compensation claims, employee maritime injuries are covered in part under a federal law called the Jones Act.

The Jones Act helps protects workers injured at sea. Sailors and crew members who are injured or taken ill at sea can receive compensation, maintenance and cure benefits from their employers to cover lost wages, medical expenses, damages, and more. Read this blog to learn the answers to 5 of the most commonly asked questions about the Jones Act.


How Do Jones Act Claims Differ from Typical Worker’s Compensation Claims?

Worker’s compensation is a standard benefit that most employers are required to have for their employees to provide compensation for medical care and lost wages resulting from workplace injuries. Under the Jones Act, maritime workers are also protected for injury or illness incurred, but the available damages available can be much greater.

Because of the Jones Act—and the related Admiralty Laws—maritime employers have greater liability to their employees for causing injuries and their resulting damages. In addition to maintenance and cure, employers or ship owners can be held liable for pain and suffering and other damages if the injury was caused by unseaworthiness or risky/carless behavior by the employer, captain, or coworker, or if the conditions of the vessel are found to be unsafe. This makes it easier to prove general negligence on the part of the employer.

What Qualifications Must I Meet?

One limitation of the Jones Act benefits is that only seamen (also referred to as crew members) qualify for all of these benefits. Based upon years of litigation by maritime attorneys over the years, the Courts have come up with these criteria to define seamen:

  • Someone who is assigned to a vessel or fleet of vessels that works in waters that can be used in interstate or foreign commerce
  • Someone whose work is relevant for the ship’s purpose (i.e. not a passenger but can include all types of employment)
  • Someone who spends 30% of work time on the ship (this is a rule of thumb, but it not completely binding)

Qualifying as a seaman is essential to file a Jones Act claim, and an experienced maritime attorney will be able to tell you if you qualify. For example, the 30% rule is not so much a rule as a guideline, and an attorney who is experienced in Maritime Law and Jones Act worker’s compensation can tell you if you have a case.

How Do Negligence Lawsuits Fit In?

Because of the Jones Act, maritime workers can sue their employers for negligence. Seamen injured on the job can receive more compensation by proving negligence, which holds employers more fully accountable for their employees. In comparison, most State and Federal worker’s compensation statutes do not allow employees to receive damages for pain and suffering and for many other types or damages, future damages, and impairments which often occur.

Establishing negligence allows the injured seaman to request both economic and non-economic compensation. It included both lost daily living expenses and medical expenses (which you often hear referred to as maintenance and cure), the past and future impairment of your ability to earn wages after the injury, as well as pain and suffering caused by the injury. Non-economic damages can also act to punish employers for, particularly severe negligence.

What Is the Unseaworthiness Doctrine?

In some maritime worker’s compensation claims, the accident or injury occurred because the vessel was not in a condition to be at sea. When the poor condition of the ship is to blame, the “unseaworthiness doctrine” applies. This doctrine states that the owner of the vessel is legally obligated to keep it in good and safe working order, including the proper equipment and a qualified crew. If any of these things are missing and a crew member gets injured, the owner of the vessel is responsible and the victim may be able to receive the same damages as a negligence lawsuit. This is similar to a negligence inquiry, but there are important distinctions which a qualified attorney can help explain to you.

How long do I have to file a lawsuit?

A statute of limitations limits the period of time during which you can begin or file a lawsuit. After the running of a statute of limitations (often abbreviated SOL for two reasons), you can be barred as a matter of law from bringing claims for damages from your accident. In more simple terms, if you are more than three years from your date of accident and you have not filed a lawsuit, you may be SOL.

The normal statute of limitations under the Jones Act is three years from the date of the incident or accident. If you are more than three years from the date of your incident and have not filed suit in Court, your claims for Jones Act damages will likely to be barred as a matter of law. There are some exceptions to this general rule (and the SOL is shorter for individuals injured on a U.S. government-owned vessel), but it is always a good idea to speak to a qualified attorney well in advance of the three year anniversary of your accident. You should note that unlike many State workers’ compensation statutes, the payment by your employer of maintenance and cure (living expenses and medical expenses through maximum medical improvement) do not toll or extend the statute of limitations time period.

Maritime law and the Jones Act claims are complicated legal matters that are best left up to attorneys who have studied and practiced in those areas of law. If you have a Jones Act claim, you should speak to an attorney experienced in maritime law to help you navigate your claim.

Contact C.W. Smith P.A. for help with your Jones Act Claim. Mr. Smith can help you determine if you should file a negligence lawsuit, and help you along every step of the process.

When Should You Hire an Insurance Attorney? Learn from These 3 Tips

When you file an insurance claim, you trust that your insurance company will take care of your damages and needs. After all, that is the contract you entered into with them: that you would pay your premiums and they would help you when a catastrophe occurred. Unfortunately, it doesn’t always happen this way. Insurance companies are in the business of making money and generally want to pay out the least amount of money possible, which means sometimes you have to fight for the payout to which you are entitled.

If your insurance company is denying your claim, and you feel they are wrong in doing so, you should always get advice from someone who knows and can advise you of your rights. When insurance companies delay, deny or “low ball” legitimate insurance claims, attorneys need to get involved in setting things right.

In situations like these, the best course of action is to hire an insurance attorney. An attorney who has experience working on and, if needed, litigating insurance claims and who can help you get the benefits you need. Check out our three tips for hiring an insurance attorney in claims being made against your own insurance company (this advice does not apply to claims made against others for which they held insurance).

insurance attorney

#1 Try to Make Progress Before Formally Hiring an Attorney

Initially, you can communicate with your insurance company before formally hiring an attorney, including completing a written proof of claim and making sure all forms required have been signed and returned. The types of forms, proofs of claims and releases which insurance companies require vary depending upon the insurance company involved, the type of claim involved and the extent of coverage that you purchased. You should note that some insurance companies require written “proof of claims” to be submitted as required in their policies, but will not request one from you or even advise you of that requirement.

To make sure you have properly completed all required forms in order to prevent your claim from being denied, it is a good idea to speak initially with an insurance attorney to discuss your required actions under your policy, which are often called “conditions precedent” to coverage. That way, you do not run the risk of voiding or losing coverage for failing to cooperate with your insurance company. In many cases, your insurance company is trying to give you a fair payout while still maintaining its own financial interests. If you are communicating with your insurance company respectfully but assertively, you are making progress, and you have made sure that you have taken all actions to protect your rights (including having a free consultation with an insurance attorney), then there may be no need to formally hire an attorney.

That being said, if your polite but firm communications are being ignored, if your insurance company is being unprofessional and obstinate, or if they have denied or “low balled” an offer to you, you will likely need to formally involve an attorney. In addition, if the process is taking too long or you are becoming too frustrated to deal with it on your own, an experienced attorney can take over for you.

#2 Start by Getting Advice

Attorney fees can be expensive when you are paying them, and not all attorneys provide free consultations or contingent representation, so be sure to confirm that your initial consultation with your attorney will be free of charge. Most insurance attorneys, including Chuck Smith, will speak with you initially regarding your insurance claims under Florida law to discuss your claim in general, your responsibilities and what you will need to do to “perfect the claim” in an initial free consultation.

Mr. Smith represents most clients in Florida insurance claims on a contingency basis, with no attorney fees being paid up front or paid at all unless a recovery or judgment is obtained. He can let you know if such representation would be possible on your claim after the initial free consultation and can further discuss your options. Additionally, meeting with an attorney to go over your claim and to learn your rights may be enough to get your situation resolved. An insurance attorney can give you advice on how to proceed without ever communicating with your insurer directly.

It is especially useful to get advice from an experienced attorney if you are trying to avoid litigation. Certainly not every insurance case needs to be resolved in court, and you can expedite your resolution by taking a knowledgeable attorney’s advice. In cases in which you do need to sue your insurance company, you will still often need the assistance of a professional and experienced attorney to plead your case. You should also know that under Florida law if a suit is filed then you can get your own attorney fees paid directly by your insurance company if you are successful in securing additional benefits or rights in your claim. This is under Florida Statute Section 627.428.

#3 Choose Carefully

If you reach the point in your claim where you conclude that you are going to have to sue your insurance company to get the payout you deserve, choose your attorney carefully. Make sure that you research insurance attorneys in your area, get referrals from friends and loved ones when possible, and find the right professional to help you. Make sure that you understand your fee arrangements upfront with your attorney and that you are comfortable with the same.

Taking your insurance company to court can be a stressful and time-consuming experience, so do your research to find an attorney with experience in insurance claims. Indeed, make sure to read reviews and look at your prospective attorney’s record with cases like yours.

If you are looking for an experienced and compassionate insurance attorney in Orlando or anywhere in Central Florida, enlist the help of C.W. Smith, P.A. Working with our firm will mean that you work one-on-one with Mr. Smith himself, benefiting from his years of experience with difficult insurance cases like yours.

Please contact us to get started!

Workers’ Compensation Part 2: What You Need to Know About Lost Wages and Indemnity

Workers’ comp is an extensive subject with many rules, guidelines, and best practices. Because there is so much involved, we have decided to do a two-part series about the two main categories: medical benefits and lost wages or indemnity benefits. This is second first part of the series, covering lost wages and indemnity. You can find the first part of the series, covering medical benefits, here.

As we mentioned in part one, workers’ compensation is a form of insurance that employers with more than four employees must have. Workers’ compensation, or workers’ comp, replaces wages and provides medical benefits to employees who are injured at work. If you have been injured at work, you may be eligible for workers’ compensation. Keep reading to learn what you need to know about lost wages and indemnity.

Workers Compensation claims

How Are Benefits Determined?

To determine how much you qualify for, your employer will look at your average weekly wage, or AWW, for the last thirteen weeks before your injury. The AWW usually includes the wages from your employer and from any concurrent jobs that you hold that you will not be able to work during your recovery period. Lost wages are paid through temporary disability or permanent disability.

Temporary Disability

Temporary disability falls under three categories under the law: temporary total disability (TTD), temporary partial disability (TPD), and retraining temporary total disability benefits.

Regardless of which category of temporary disability you fall under, you are only eligible to be paid for the first seven days that you are out of work if you miss working for more than twenty-one days. Otherwise, you will not be paid temporary disability for the first seven days of work that you missed.

Disability is only paid if your doctor orders that you reduce or limit your work. In order to receive disability payments, you must provide proof of your doctor’s restrictions to your employer. Also, note that TTD and TPD are payable for 104 weeks or if you have reached MMI—maximum medical improvement. There is currently a case in the Florida Supreme Court that may extend partial disability past 104 weeks, depending on the verdict.

  • Temporary Total Disability (TTD)

If your injuries are severe enough that your doctor orders you not to work at all, then you will be eligible to receive TTD. TTD benefits are paid at 66 2/3% of your average weekly wage. You may not work and receive TTD benefits, as that is criminal workers’ compensation fraud.

  • Temporary Partial Disability (TPD)

Injuries that result in TPD are generally less severe than those that result in TTD. In order to qualify for TPD, your physician must have given you physical restrictions that prevent you from doing some of your work, and therefore keep you from earning 80% or more of your average weekly wage.

Because you can still perform some work, just not work that can exacerbate your injury, your employer may offer you lighter work. If you turn down replacement work, you may not receive TPD benefits. If you are offered light work, speak with an attorney to understand your options.

TPD is paid at 64% of your AWW if you are not working. If you are working and earning some wages, but less than the required 80% of your AWW, then your TPD benefits will be figured by taking your gross earnings from 80% of your AWW, then multiplying that number by 80%.

Once you are placed at MMI by your doctors and given permanent restrictions, you may qualify for retraining through the Division of Workers’ Compensation. If you qualify for such retraining, then you are supposed to be paid TTD wages while going to school/retraining, but that program is underfunded and many deserving individuals do not qualify. The retraining TTD benefits are also currently subject to the 104-week cap on temporary benefits.

  • Retraining TTD

Once you have reached MMI or exceeded the 104 weeks of disability benefits and you still cannot work your previous job, you may be able to receive retraining from the Division of Workers’ Compensation. In cases in which you qualify for retraining, you will be paid TTD benefits—remember, this is 80% of your AWW—for the duration of your training or up to 104 weeks.

Retraining is a poorly funded program, so it is difficult to qualify for this benefit. As always, speak with an attorney to discuss filing for retraining TDD.

Permanent Disability

If retraining is not an option, and you have reached MMI and received benefits for the maximum 104 weeks of temporary disability, you may qualify for permanent disability. There are two kinds of permanent disability—impairment benefits and permanent total disability benefits—and depending on your situation, you may qualify for one of them.

  • Impairment Benefits

If your injury or accident has left you with a permanent impairment, you may be entitled to impairment benefits. This is a highly variable benefit which requires your physician to give you a permanent impairment rating. Your rating will determine how much you get paid (once again based on your AWW), and for how many weeks you receive payment.

Once you qualify for impairment benefits, you will receive them regardless of whether you are working. If you are employed and making as much or more than you made before, impairment benefits are paid at 33 1/3% of your AWW. If you are making less than you did before your injury, your benefits can be paid at 50% of your AWW.

Permanent Total Disability (PTD) Benefits

If the work restrictions given by your doctor are particularly severe when you have reached MMI, you may be eligible for permanent total disability (PTD) benefits. In order to qualify for these benefits, you must prove that you cannot work within 50 miles of your home under the restrictions set forth by your doctor.

In order to prove this, generally, you have to show a long and unsuccessful job search. You must be unable to find work, even part-time sedentary work, after a search of at least six months.

Workers’ compensation is a huge and complex issue that is difficult for many to grasp. There are so many facets of this coverage that many people do not know where to begin. If you think you should receive workers’ compensation, or that you are eligible for disability benefits, then contact C.W. Smith, Public Attorney, to find out what you are entitled to.

Workers’ Compensation Part 1: What You Need to Know about Medical Benefits

Workers’ compensation, or workers’ comp, is a form of insurance that all employers with four or more employees or that work in construction must have. Workers’ compensation provides wage replacement and medical benefits to employees who are injured at work or because of work. If you are injured at work—or sustain certain repetitive injuries because of your work—you are likely entitled to workers’ compensation.

Workers’ comp is an extensive subject with many rules, guidelines, and best practices. Because there is so much involved, we have decided to do a two-part series about the two main aspects of workers’ comp: medical benefits and lost wages or indemnity benefits. This is the first part of the series, covering medical benefits.

As the name suggests, medical benefits cover doctor’s care, prescriptions, surgeries, and other medical procedures. Before you start seeing a doctor, make sure to follow the right steps or your care might not be covered. In fact, in order to ensure that you are covered under workers’ comp, make sure to follow these five guidelines.

workers' compensation

Go to an Authorized Doctor

Once you have requested medical care—which you must do within thirty days or your claim may be denied because of untimely reporting—your employer must authorize a doctor or medical care provider for you. It is imperative that you go to a doctor who is within your employer’s network or your care will not be covered.

Under the law, employers are not required to pay for medical care—except in cases of emergency care—that was not authorized by them ahead of time. Going to a doctor that was not approved by your employer will mean that you do not receive coverage, and testimony from an unauthorized doctor will not hold up in court.

Avoid “Doctor Shopping”

In some cases, an insurance agent or employer who is unhappy with your doctor’s opinion will try to coerce you into seeking other opinions, or “doctor shopping.” This is not allowed in most cases and you are within your rights to refuse.

In fact, you should not see another doctor or medical caregiver without clearing it with an attorney first. The exception to this would be if your doctor refers you to another doctor—for example if a general practitioner refers you to a surgeon or specialist.

There may be cases in which you may go to another doctor or physician but only do this after discussing it with your attorney. Doing so may cause you to lose your coverage and waive your claim, so make sure to speak to an attorney about it before you do so.

Receive “Reasonably Medically Necessary Care”

Once you have found a doctor, workers’ comp entitles you to coverage for “reasonably medically necessary” care. This means that any medical treatment, service, or supplies that will treat or cure your injury are covered. If you were sick, injured, or had a condition before your workplace accident, you will need to prove that the accident was the major contributing cause (MCC) of the condition and NOT your pre-existing condition.

Workers’ comp will also pay to test for what is known as a “differential diagnosis.” This testing is designed to ensure that the symptoms you are having are not related to your injury, but rather the symptoms are a result of a different condition that may not be work-related.

Understand Maximum Medical Improvement (MMI)

When you are entitled to workers’ comp, your employer will pay for all emergency treatment and authorized medical care necessary to treat your compensable injuries. This includes the following:

  • Doctors
  • Medical facilities
  • Surgery
  • Testing
  • Therapy facilities
  • Prescriptions
  • Orthopedic braces and devices
  • Anything that is medically necessary

It is important to understand that workers’ comp only covers you so far. Maximum Medical Improvement, or MMI, is a medical term that refers to the time in your treatment that further care will aid in your recovery. With some injuries, there comes a point in treatment where the doctors can no longer make improvements to your condition, at which point your employer is no longer required to pay for your care.

Once you reach MMI, you may still visit the doctor or medical professional, but you will have a copay of $10 per visit in order to receive your care.

Forward Medical Bills

If at any point in your treatment you start to receive medical bills, forward them to your attorney immediately. Do not ignore the bills or assume that they are getting paid by your employer’s insurance.

As you can see, workers’ compensation is complex. It is important to follow the rules set forth by the law and your employer in order to receive your benefits.

If you need legal advice on your workers’ compensation claim, contact C.W. Smith, Public Attorney.