Workers Comp Attorneys in Miami

The blessing of diversity in Miami – the city has more foreign-born residents than any city in the United States and 77% of its population speaks a language other than English when they’re at home – is also a problem for its business community.

Miami’s bustling economy needs a significant number of workers in labor-intensive jobs. Many of those jobs are filled by foreigners, including a significant number who are undocumented. They are so focused on working to feed and house their families that they won’t report an injury for fear of missing a day of work, losing a day’s pay, or, in the case of undocumented workers, possibly being deported.

Some of that problem is related to language differences, but most of it is a misunderstanding of workers compensation laws in Florida.

“There is a definite problem with misunderstanding workers compensation law,” Miami attorney Ray Malca said. “Many of them don’t understand that they are entitled to medical care and indemnity benefits when they’re hurt on the job. They don’t know how to file a claim or they simply avoid reporting an injury because they’re afraid of the consequences.”

Malca, who grew up in Miami and has practiced workers comp law there for more than 40 years, said this is a huge problem in Dade County, especially in the high-risk jobs like construction, retail and service industry. He said that companies are well aware that some of their workers are undocumented and take advantage of that by paying them off the books and not having them count as part of the workforce covered by workers compensation.

“That’s just part of the way business is done in South Florida,” Malca said. “Employers know that undocumented workers are less likely to file a claim if they get hurt because if they do, in some cases, they’ll have to admit to using a false identity, and that becomes an even bigger problem.”

If an employee is working under a false identity, it gives the insurance carrier an out in denying benefit claims. The insurance carrier says the person using a false identity is not covered and not entitled to medical and indemnity benefits for accidents that happen on the job site.

“That happens a lot in Miami,” Malca said. “Using a false identity to get a job is one thing, but using a false identity to make a workers comp claim is another thing altogether. Now, you’re subject to a defense of fraud, which would eliminate the worker’s ability to receive any kind of benefits.

“Certain insurance entities take advantage of that. They know employers are likely using undocumented workers, but they only look carefully at the worker’s immigration status after a person gets hurt. They’ll use that as leverage to settle a case quickly or deny the worker any benefits. It’s a huge problem.”

» More about: The Workers Comp Process in Florida

Reasons to Hire a Miami Workers Comp Lawyer

If you have been injured at work In Miami and can’t decide whether you need a lawyer, consider some of these signs that might help you decide:

• If your claim is denied for any reason … you may need an attorney.
• If you get hurt at work and the employer says: “I’ll handle all the medical bills, just don’t file a claim with my insurance carrier,” … you may need an attorney.
• If you get hurt at work and the employer or insurance carrier claims it didn’t happen at work … you may need an attorney.
• If you know your injury is serious enough that you’re going to miss more than a week of work … you may need an attorney.
• If your employer or the insurance carrier wants to talk about a settlement offer … you may need an attorney.
• If you have an injury serious enough that you feel like you can never return to work … you definitely need an attorney!

“Just because you got hurt at work, doesn’t mean you have a workers comp case,” Malca said, “but if the injury is serious, and you know you’re going to be out of work for a while, you ought to consult with an attorney to see what benefits you’re entitled to.”

Malca says that of the 10 workers who call about their injuries, he tells six or seven, they don’t need him.

“I tell all my clients who like their job that a good job is better than a workers compensation case,” Malca said. “If your employer is taking care of you the way they should, don’t go running to a lawyer or they might start looking for a way to get rid of you.

“But if there Is a delay in getting treatment from a doctor or your injury is serious or your case ends up going to court, I’m 100 percent sure you need an attorney.”

What Does a Workers Comp Attorney in Miami Do?

Thinking you might represent yourself in a workers compensation case may seem like a noble idea, but consider the reality of what it takes to prepare and present a case before actually following through on that thought.

Your preparation would require interviewing doctors, witnesses to the accident, possibly your employers, filling out papers necessary to start a hearing; going toe-to-toe with the insurance carrier’s lawyer during settlement hearings; and cross examining witnesses if the case goes to trial.

And that’s not even half of it! Here is a short list of the things Malca does for his clients:

• Get a full understanding of the injury and how it impacts an employee’s ability to go back to work.
• Get a full understanding of prior injuries and claims and how that impacts the current situation.
• Take depositions when necessary.
• Conference with doctors treating the injury.
• Know the doctors involved. Some are totally insurance oriented. Some look out for the patient first. Do you know the doctors well enough to know the difference?
• Conduct settlement negotiations with the insurance carrier.
• Handle preparations and deadlines if the case goes to a trial.
• Know the grounds for appeals, if the case gets that far.

“I know the people involved, whether it’s doctors, employers, insurance companies or lawyers representing them,” Malca said. “I know whether they’re looking to provide what the law requires them to or looking to deny benefits to the worker.

“That comes from years of experience doing this job. An injured worker is not going to be able to duplicate that kind of experience and contacts.”

How Much Does a Miami Workers Comp Lawyer Charge?

Workers comp lawyers work on a contingency basis, meaning they only get paid if you win your case.

The attorney’s fees come from a percentage of the benefits you win or recover during your challenge. If you lose, the attorney doesn’t get paid.

The state of Florida caps how much the lawyer can get paid by limiting the percentage of benefits attorneys are allowed to collect as their fee.

The maximum fees for workers comp attorneys in Miami are:

• 20% of the first $5,000 of benefits
• 15% of the next $5,000 of benefits
• 10% of all benefits over $10,000

You have the option to waive these statutory percentages and agree to a set contingent fee in the attorney’s fee agreement. The judges in every case review the attorney’s fees to make sure the lawyer is compensated fairly and in accordance with the law.

For injured workers, this can mean that an attorney will only take your case if he/she is fairly confident they are going to win. Most injured workers only ever pay an attorney’s fee directly from their settlement, if and when their case settles.

Handling a Workers Comp Case on Your Own in Miami, FL

Most claims do not require the help of a workers comp attorney. When the system works as intended, you simply have to notify your employer to kickstart the process of filing a workers compensation claim. If things do not work out in your favor, you have the option to appeal a claim denial. This will require the help of a workers comp lawyer, but for reference, the step-by-step guide is detailed below.

How to File a Workers Comp Claim in Miami

Filing workers compensation claims in Miami is the first step in the workers compensation system and there are three parties involved. It starts with injured employee and Includes the employer; and insurance carrier. All three have responsibilities that make the process work … or make it drag out in painstaking fashion.

The injured worker obviously is the starting point. When a worker gets hurt, he should inform his supervisor immediately, and go to the appropriate doctor, clinic or emergency room for medical treatment.

Florida law says workers have 30 days from the date of the accident to report an injury. That deadline is important because the worker may feel only mild discomfort with something like a cut or muscle pull and not seek immediate treatment. However, if the cut gets infected or the muscle pull is aggravated and the employee suddenly realizes he needs treatment.

That’s why it’s important to report an injury right away and be sure your supervisor puts it on record that something happened that could require medical attention. This is a crucial factor if your claim is denied and results in an appeal having to be filed.

Employer’s Responsibility for Filing Claim

The employer has seven days to file a report with their insurance carrier after being notified of a work-related injury or illness.

The initial report should include the employer’s identification information such as name, address, type of business. It needs similar information about the employee, including name, social security number, mailing address, phone number and occupation.

The report should have details about the type of injury that was suffered and the cause of the accident. Ideally, there also would be statements from witnesses, the month, day and hour of the accident, where it happened and any other relevant information.

There could be occasions when the employer chooses not to report an injury. Often, it’s because the employer is worried about insurance premiums going up. If that happens, the employee can self-report the accident directly to the insurance carrier.

If a worker has any concerns about the way the accident was handled, they can call the Employee Assistance Office for Miami at 800-342-1741 or email wceao@myfloridacfo.com.

Insurance Carrier’s Responsibility with Claims Form

The insurance carrier is the final part of the reporting process. The carrier is responsible for filing a form called “The First Report of Injury” with Florida’s Division of Workers Compensation (FDWC) and sending copies of that to the employee and employer to verify the information is correct.

The carrier has three days after the accident to provide the employee with information that explains the rights, benefits and procedures for obtaining benefits. The brochure should explain the obligations injured workers and their employers have under Florida law and the penalties they face for not following those laws.

If the employee misses eight days of work because of the injury, he becomes eligible for lost wages. In that situation, the carrier must notify the FDWC within 14 days.

It is in the carrier’s best interests to update the injured employee’s file with new medical reports and wage statements if the employee is due indemnity pay during recovery.

Deadlines for Miami Workers Comp Claims

The deadlines for filing workers compensation claims in Miami are clear, but it should be noted that an injured employee has up to two years to file a claim for benefits.

Here are some deadlines for the various entities involved in workers compensation:

Employee: Florida law allows employees up to 30 days from the day of the accident to file an injury report. All parties consider it best to do so immediately.

Employer: The employer must file an injury report with the insurance carrier within seven days of being notified.

Insurance carrier: The insurance carrier has three days to send a brochure to the injured employee that outlines their rights, benefits and procedures for obtaining benefits. If the employees expects to receive lost wages compensation, the carrier must report that to the FDWC within 14 days.

Occupational Diseases: If you file for death benefits due to occupational diseases, the death must have occurred within 350 weeks of the deceased’s last exposure to the source.

How to Appeal a Workers Comp Denial in Miami

The insurance carrier has 120 days from the time the injury was reported to tell the worker that a claim has been denied.  When your claim is denied, there is a system set up to resolve the dispute. Here a walkthrough of what you’re facing on appeal of a workers compensation claim in Florida.

Step 1: Injured Worker Contacts the Employee Assistance Office

The first step in appealing your workers comp claim is to contact the Employee Assistance and Ombudsman (EAO) office. They have several offices around the state of Florida with the purpose of investigating workers comp claim disputes. Their goal is to avoid expensive litigation – if possible.

Email: wceao@myfloridacfo.com
Phone: (305) 536-0307
Address:401 N.W. Second Avenue, Suite S-321
Miami, Florida 33128

 (305) 536-0307

Step 2: The EAO Contacts the Insurance Carrier

The EAO says it will contact the insurance company and see if it can resolve the issue to obtain benefits. There are common, and easily corrected mistakes with paperwork that can result in a denial. Sometimes the mistake is simply a miscommunication about what benefits are available and are easily resolved.

Step 3: The Insurance Carrier Issues a Denial

If things go well (that’s rare), the worker receives benefits and the case is closed. If not, (more often the case), the carrier has 14 days to deny lost wage benefits. If the dispute is over medical benefits, the carrier has 3-10 days to deny the benefit, depending on the cost. If they insist on denying the claim, the injured employee must decide if he wants to continue the appeal. If so, we move on to …

Step 4: Filing a Petition for Benefits

The next step for employees is to file a “Petition for Benefits” with the Offices of Judges of Compensation Claims (OJCC). This is the start of what could be a long paperwork process. Details are vitally important. The Petition for Benefits has the usual identifying information (name, address, etc.), plus a detailed description of the injury, the employee’s responsibilities, the work assigned at the time of injury and a summary of the expected benefits.

Step 5: Insurance Carrier Responds to the Petition for Benefits

The carrier has 14 days to respond to the Petition for Benefits. They can choose to pay the claim or continue to deny it. Most claims are denied, and the process moves on to the next step.

Step 6: Mediation & Settlement Negotiation

A mediator is brought in to try and bring about a settlement. The Office of Judges of Compensation Claims has 40 days to set up a mediation. The mediator could be appointed by the OJCC’s office or, if both sides agree, a private mediator can be hired to try and resolve the issues. The mediator puts the two sides in separate rooms and goes back-and-forth between the two to try and reach a settlement. If the two sides agree, the appeals process ends and that is what happens in most cases. If not, it’s on to a hearing.

Step 7: Workers Comp Hearing

When the situation gets this far, it has official reached a really serious level. The hearing must take place within 90 days after the failed mediation, but no more than 210 days after the original Petition for Benefits was filed. The first step is a pre-trial hearing where the two sides identify disputed issues. The Judge sets a hearing date within the next 90 days. Lawyers for both sides introduce evidence and call witnesses to support their claims. The Judge has 30 days to reach a decision.

Step 8: Option to Appeal

If one side is still unhappy with the OJCC’s decision, there is an option for a final appeal to the First District Court. Rules say the appeal must be filed within 30 days of the OJCC Judge’s ruling, but this process often takes a year or more before the final appeal is granted or denied. The Court of Appeal receives the court records from the OJCC and both sides submit a written argument on the disputed issues. The Appeals Court can confirm the OJCC’s ruling; overturn that decision or turn it back to the OJCC for more findings.