WORKERS’ COMPENSATION IN A 2012 ECONOMY
TARA L. SA’ID, ESQUIRE
There have been a lot of changes in the economy in the past few years.
The drop in available jobs in the community has had a trickle down effect on workers’
compensation claims. Many adjusters are finding it difficult to settle claims. There appears to be a twofold problem. First of all, many employees are not reporting injuries, as they are afraid they might be laid off if there is a downsizing of the work force. Secondly, many who are injured on the job do not want to settle their claims, because some employers put employment-related settlement terms in place, including resignation and release. The best way to be protected is to know how a claim is most effectively managed. There are only so many hours in a day to monitor and administer a claim. Many carriers have reduced the number of claims handlers, so caseloads are growing while the work increases. Staying on top of a litigated claim is important; be aware of the guidelines and time frames. The Rules of Procedure for Workers’ Compensation Adjudications were changed in October 2010,
TARA L. SA’ID, ESQ. 904-346-5422
Fax: 904-346-3306
and those rules still apply in 2012. Become a registered user on the Office of the Judges of Compensation Claims website (
www.jcc.state.fl.us). The rules allow for electronic signatures, and pleadings are now required to have email addresses, as most are served electronically. Pleadings can not have any accompanying separate correspondence, and no party should prepare a proposed order on a matter unless the court requests it. All documents filed with the Office of the Judges of Compensation Claims, except those filed by non-represented parties, shall be filed electronically. Anything delivered by electronic transmission or by facsimile after 5 p.m. is deemed to have been served the following day, so long as it is not a weekend or holiday. If it is, then it falls to the next business day. If both parties decide to do a private mediation in lieu of state mediation, then written request must be made at least 30 days prior to any state scheduled mediation. If the issues are resolved prior to state mediation, a pleading should be filed notifying the court. A request to appear by phone must be made in writing no later than five days prior to the scheduled mediation. Also of significance, failure to appear at mediation (even by phone) without full authority to resolve the issues, shall subject the party or attorney to sanctions. Workers’ compensation claims do not have to be settled in mediation, but it is a good idea to
go into mediation with a plan in place to move the issue toward a resolution. If the issues are not resolved in mediation, the parties must complete and file a pretrial, no later than two business days prior to the scheduled pretrial. Furthermore, no discovery shall be permitted within 10 days of the final hearing, absent prior approval by a judge for good cause. Also, if you are reaching a settlement with a claimant who has previously settled the indemnity portion of their claim, and you can not find a copy of the prior settlement, the claimant can sign an affidavit outlining the prior settlement. It is often good practice to attach a copy of the check or details of the check as proof. In the cost arena, the rules note that the judge shall consider the disclosed costs to the extent they do not include the attorney’s overhead or other fees. Best practices include trying to be proactive on claims rather than reactive. Remember, internal protocols and time frames play no role in a courtroom. Peer audits, internal review and medical opinions provided by anyone other than a treating doctor, independent medical examiner or an Employers and Manufacturers Association expert do not come in as admissible opinion evidence. Always think in terms of documentation, because as most claims handlers know, you might find yourself having to explain decisions and actions you made in a case to a court of law. So… take a deep breath and carpe latte! (seize the latte) —you are going to need a lot of good coffee. But, most importantly, keep at it.
16 2012 Jacksonville Claims Association Resource Guide
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