Eight Trends

Martha Stanley
Feb. 18, 2003 

1. There is an adversarial nature toward injured employees by the carrier when the injury is "catastrophic" as defined in FS 440.02.
The adversarial situation creates an overlay that few understand: everything in the life of a catastrophically injured worker has changed for the worse PLUS they have to deal with a fraudulently implemented system. Please understand how overwhelming and massive that is and how vulnerable that makes employees.

A. When signs begin to point to a finding of MMI and a catastrophic designation, care begins to declines and attorney involvement becomes necessary. This is evidenced by fraudulent delays and denials of benefits and compensation.
1. In FS 440.13, the medical care section, there are several subsections dealing with timing required of carriers. If the carriers fail to meet the deadlines as required, the sections state that medical treatment will be considered approved.
2. These deadlines are universally ignored and medical treatment is delayed. If carriers would simply follow the time limits for notifying doctors about treatment, a huge number of petitions for benefit before the JCC would never be filed and a lot of needless pain and suffering would never occur. More persons would return to work sooner.
3. There is no real incentive for carriers to do better. Unenforced statutes don't scare anyone.

B. Carriers doctor-shop in order to find one who will provide a diagnosis favorable to the carrier. Some judges routinely rule in favor of a carrier's doctor, no matter what. Political appointees may sometimes be swayed by the political will of the appointers.

FS 440.13 (5) When a carrier requests an IME (second opinion):
1. The employee gets no say in the date of the appointment. If something else has been scheduled for a year -like his son's wedding- he MUST go to the IME or face the cutoff of benefits until he can go. FS 440.13 (5)(d)
2. If he doesn't go and cannot provide a good enough reason, he has to reimburse the carrier half of the provider's no-show fee and do without his benefits.
3. If the carrier withholds too much money during this process, the claimant -by statute- may appeal to the JCC BUT
4. Attorneys who get involved in this dispute may NOT be compensated. FS 440.13 (5)(f)
5. So who files against the carrier?? Who makes the carrier follow the law?

C. Persons who testify for the rights of injured workers at house and senate meetings have had their benefits suspiciously cut off after appearing. Records have mysteriously been backdated and changed. The injured employee has no recourse except to file a petition for benefits and wait it out if she can. Hopefully, she won't lose her house. This is harassment and fraud by a carrier which is not held accountable.

2. Even BEFORE an adequate evaluation has been done, many physicians have prejudged the injured employee as a "fake" or "malingerer".
A.   Many providers routinely provide less acceptable care to workers comp clients just because they are influenced by the carrier into believing w/c patients are fakes.
B.   Carriers reward providers who minimize costs. This incentivizes rude and callous disregard for a patient and his input in favor of improper treatment that speedily and inappropriately returns workers to work too early. This also occurs as retribution for questioning medications or inappropriate care.
C.   This allows the carriers to avoid benefits payments.
D.   The Hippocratic oath "First, do no harm" is abandoned in lieu of cash.

3. There seems to be no one to complain to when an injured worker has a legitimate grievance. No one except an attorney. Here is what is available.
A.      FS 440.191 creates an Employee Assistance and Ombudsman Office. The office is hardly publicized by the state. It is very understaffed and has no authority to do its statutorily mandated job. The Fraud Hotline mandated by statute doesn't give any indication that carrier fraud can be reported. The Fraud website doesn't either.
B. I could find only one instance in 440 where there is language that includes the carrier with other potential offending parties such as employers, providers and employees. Why is this? How can carriers be held accountable?
C. Reporting legal or medical malpractice to professional organizations or licensing agencies is not effective. It takes too long for anything to happen, IF anything happens.
D. FS 440.105 (1)(a): By statute, some persons are required to submit a report to the Dept. of Business and Professional Regulation if they have knowledge of a fraudulent act.
1. The bureau reviews the report on its merits and decides what to do.
2. It determines if the fraud is a felony or misdemeanor.
3. It reports this finding to the licensing agency and state attorney for prosecution.
4. If prosecution is not begun in 60 days, the prosecutors have to tell the bureau why. There is no mention is made of further follow-up. THIS IS ENFORCEMENT??
5. Finally, after realizing there are no other options, the employee seeks the counsel of an attorney.

4. When a person tries to do the best he can, given the lousy circumstances he has to live with, he still has to deal with the chilling effect of surveillance by private investigators, many of which go over the ethical line and harass the claimant and her family.
A. A picture can lie. Without the ability of the claimant to respond to or refute the evidence, the judge may presume inaccurate information and rule unfavorably without justification. This is scary even to someone who is legitimately disabled.
B. Even after being found totally disabled, a claimant does not feel safe doing ordinary things - even at his new lowered limits - knowing that surveillance can still continue and be used fraudulently.
C. The stalking laws in Florida do not prevent unethical private investigation from occurring. Law enforcement cannot or chooses not to be involved.

5. An injured worker has no right to the documents and information passed among physicians, employers and carriers about her case, only medical records.
A. Doctors refuse to make copies of "office memos" that might shed unwelcome light in dark places.
B. Injured workers may not receive complete copies of their medical records. It depends on what the carrier or provider will admit to having.
C. An injured worker has no way to catch, much less correct inaccuracies in documents that can be used to determine his medical and financial future.
D. Mysteriously missing, added or altered documentation cannot be disputed if it is not available to the employee. There is no way to contest the information even if it becomes available.

6. No one seems to know how to guide an injured employee toward state vocation rehabilitation and retraining.
A. There is no single clearinghouse for information about this issue.
B. Many injured workers are not aware that there are state programs available. They have no clue how to access them.
C. Two separate venues and sets of rules for rehabilitation and retraining create an ineffective and underutilized delivery system.
D. Injured employees who have no GED or high school diploma, yet made a decent salary at the time of injury, do not qualify for any form of state retraining.

7. It can be very difficult to return to work.
A. Many employers will not hire a person who has ever been on comp, fearing the cost of another injury. FS 440.104 (2)(a) makes it a first-degree misdemeanor to fail to hire a person because she has filed a claim for benefits. This is hard to prove and enforce.
B. Some employers will not honor light duty limits. They threaten to or actually fire the employee if he protests or refuses to perform duties that could aggravate his injury. Who can he turn to to protect his job and his health?
C. A person who works two jobs is in a particular bind, since the second employer may feel no need to provide light duty. There is no statutory language for this situation.

8. There is no way a person can go through the morass of information, disinformation and lies by himself.
A. There is no state-provided guidance or support for the claimant that is strictly for the claimant.
B. For persons already overwhelmed by the massive interruptions and permanent changes in their lives, mapping out a successful strategy for getting through the system is unthinkable and impossible.
C. It is a real shame that psychological support is not easier to get. The deep unhappiness felt by injured workers over these very significant life changes frequently works against their recovery and return to work and their family's well being. Divorce, bankruptcy, family break-ups and suicide are not uncommon in the world of catastrophically injured workers.
D. The injured worker with a catastrophic injury is relegated to sub-citizen status. With no effective state support and with no allowable tort remedies, the injured employee has no resources to fight provider, carrier and employer fraud and malpractice unless he retains legal counsel and participates in support groups such as VOICES, Inc.

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