In a Florida case, insurance company denied w/c claim, claiming injury was not job-related. A mediation hearing will take place, but I'm afraid a favorable settlement might not be achieved then. Since, (up to this point), this is a denied case, where does the case moves next? I'm looking for legal advice based on Florida w/c laws typical case flow. Based on common answers given on this forum, and I'm completely aware a w/c attorney should handle the case from this point forward. Kindly appreciate all responses and opinions provided. God bless.
An important concept to understand is that the jurisdiction (i.e., legal authority to rule on the issues presented) of the Judge of Compensation Claims (JCC) is limited to what the W/C Law says the JCC can do. This is different from usual judges, who have "inherent authority" to do much more. So, when you say that mediation is already scheduled, it means that you invoked the jurisdiction of the JCC by filing a petition for benefits (PFB). The PFB had certain claims in it, such as a request for authorization of a medical specialist or payment of lost-wage benefits.
Let's say, for sake of discussion, that your PFB requested only authorization of a neurologist. That would mean that the only issue that was ripe for discussion at mediation would be whether the carrier would be willing to satisfy the request for authorization of a neurologist , perhaps by simply agreeing to it, or possibly by some more creative arrangement that you found acceptable. (The parties *could* discuss whole-case settlement; but, neither side is ever obligated to settle, and the JCC can never require a settlement.) And, if no agreement was reached at mediation on that issue, then the case would proceed as if mediation had not happened, and the issue of the neurologist would be set to be heard by the JCC at an evidentiary hearing. The JCC's jurisdiction at that "final hearing" would be limited to *only* a thumbs-up or thumbs-down ruling on whether you get a neurologist. The JCC would not have authority, for example, to award a lump-sum of money for you to pay for a neurologist or to say that the Carrier's liability for benefits will be extinguished in exchange for a payment to you of a lump-sum of money. The JCC doesn't even have the authority to say which neurologist you get to go see.
You should also be aware that, once you proceed to a final hearing on the issues that are pending, all other issues that *could* have been raised that were not raised will be washed away forever (by "res judicata"). See, for example, Engler v. Am. Friends of Hebrew Univ., 18 So.3d 613, 614 (Fla. 1st DCA 2009) (http://scholar.google.com/scholar_case?q=%2218+...), which is an appellate case I won for another attorney after the JCC improperly allowed the Carrier "another bite at the apple" (i.e., to raise defenses at a trial after another trial had already taken place two years earlier where they could have raised those defenses but didn't).
I explain all that so that you understand that proceeding on your own up to the point that you think an attorney is "necessary" might seem like a decent idea; but, you really need one much sooner, because an experienced attorney (a) will know about benefits that might be available that you don't know are out there, (b) will be able to predict defenses that will be raised to the claims you need to raise and start preparing early to overcome them, (c) will know how to deal with complicated procedural rules and substantive laws that make it very difficult to obtain admissible evidence in support of your claims, and (d) much more. Time is your enemy in w/c. If you delay in getting an attorney, you are just taking more steps into the mine field. Sooner or later, you will take a wrong step, and the damage will not be able to be undone, even by the best attorney out there. There are plenty of excellent w/c attorneys in the Lantana area. Call one today.
Ken Schwartz, Esq.
West Palm Beach, FL
If you do not settle your case at mediation and the insurance company does not agree to provide benefits, your case is set for merit hearing/trial. While workers' compensation court is far different from circuit court, the rules of evidence still apply. If your case is totally denied, you should contact an attorney to represent you prior to mediation. The attorney would probably be able to obtain a higher settlement than if you attempt this on your own. Also, if you do not settle, they attorney will be better able to prepare for merit hearing, as these are usually scheduled within a few months of mediation. You will need depositions of doctors and possibly witnesses, in preparation for the merit hearing.
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