Pre-Existing Injuries and Workers Compensation

Pre-Existing Injuries and Workers Compensation.

You are entitled to workers compensation benefits if you have an accident on the job and you injure a part of your body where you suffered a previous injury. The law allows you to collect workers compensation benefits only to the extent that the current accident is more than 50% responsible for the need for treatment. For example, 5 years ago you hurt your back in an auto accident and this year you have an accident on the job and re-injure your back. Workers compensation will cover your medical bills and lost wages for the back as long as a physician authorized by the workers’ compensation insurance carrier says that the work accident is 50% or more responsible for the need for back treatment and not the pre-existing condition.

A special situation arises when you are being treated for a work injury but a pre-existing condition interferes with such treatment. For example, you have a serious back injury which requires surgery, but you have a prior heart condition which must be taken care of before you can undergo back surgery. Prior to October 2003, the law was clear that the insurance carrier was responsible for treating the heart condition in order to treat the work related back condition. However, post October 2003, the law is not so clear. Florida Statutes Section 440.15(5)(b) seems to suggest that the insurance carrier can apportion out the pre-existing condition (i.e. the heart condition) and pay medical benefits only for the back condition. However, I have not seen any judicial interpretation of this issue and I take the position that the insurance company remains responsible for the heart condition as well as the back.

As you can see, the issue of prior injuries can complicate your workers compensation benefits. You should contact an experienced practitioner to discuss all your options and the best course of action based on your situation.

If you have a question about a pre-existing injury or pre-existing medical condition and how it relates to your Workers' Compensation claim, please feel free to contact us at (954)577-5763 for your free no obligation consultation.

Christine Nixon-Calamari, Esquire

DUI - Should I refuse the test?

I am often asked whether it is a good idea to always refuse to take the breath test. My short answer is this: If you are driving on the roads and highways of the State of Florida, you should be in a position to take any sobriety test without concern. Ultimately, you really want to be in this position because a low reading result can lead to dismissals of both the administrative and criminal cases. If you are not in this position at the time of the arrest, then you need to make a determination of whether the circumstances leading to your arrest, together with potential consequences of refusing to take the test are more conducive to taking the test or not.

So let us talk about consequences first.

Administrative Consequences:

If this is the first time you have been offered a breath test, your refusal to take that test in Florida will result in an automatic suspension of your driving privilege for a period of one year. You will be required to serve at least 90 days "hard time" before you can apply for a business purposes or "hardship" license. A Business Purposes License, as the name suggests may only be used for legitimate business, medical or school purposes. It should be noted that you have 10 days from the date you are arrested for DUI to request an administrative hearing to determine whether your license was legally suspended. This determination is made through the Department of Highway Safety and Motor Vehicles' formal review process. For the first ten days of your arrest your DUI Citation will act as your drivers' license, if a formal review request is made prior to the ten days, you will be given a Business Purposes license uuntil the formal review process is completed. If you are successful at the hearing you will get your full driving privileges back, otherwise your suspension will become effective from the date the final order is mailed. If you did not request an Administrative Review hearing your suspension will begin ten days after your arrest.

Criminal Consequences:

If this is the first time you were offered a breath test and you refused, the fact that you refused may be used against you to prove that you were conscious of your own guilt.

Circumstances Leading to the Arrest:

Your height, weight, gender, physical condition and perhaps even genetic predisposition will play a role on how alcohol is processed in your body. For example, a petite female who drinks two glasses of wine may be more impaired than a 260 lb football player who drinks a couple of beers. The important thing to note is the breath test machine does not take these things into consideration. So it is important to consider how much you had to drink, even if you feel fine. There are also many other factors that can affect your decision, when was the last time you ate, did you drink at dinner or were you drinking all day. All these things need to be taken into account. Note: If you previously refused a DUI Breath Test, you could be charged with a crime if you refuse a second or subsequent breath test in Florida.


So should you refuse the test?

If your driving privilege is very important to you and you could suffer dire consequences if you lose your driving privileges for a year, you may want to consider taking the test. If, on the other hand, it is also true that you had consumed a large amount of alcohol, you should consider that a high breath reading may result in you being required to submit psychological and/or drug alcohol treatment and you may be denied a hardship license. Additionally if you have a high breath reading, that fact is likely to be introduced at your trial if you later decide you want to go to trial.

So the short answer is, if driving is important to you and you honestly feel that your breath reading would not be that high, you should probably take the test. It may be a good idea to request an independent blood test, especially if you believe that you may be under the legal limit. (Note that if they do not provide you with the blood test, you may have grounds to have the test results thrown out, on the other hand, blood alcohol tests are much more reliable than the breath test, so you will be stuck with any results).

Ultimately however, the best position to be in, is one were you are prepared to take the test, should you be stopped by a police officer. Remember that many automobile fatalities are alcohol related. So drink responsibly, and be careful out there.

If you have a question about DUI's or want to talk to a South Florida Attorney who practices DUI/DWI in Plantation, Broward County, Florida, please feel free to contact our office at (954) 577-5763 or toll free at 1-888-9-MNC-LAW. You can also visit our main site here.

Gregory A. McFarlane, Esquire

Will I be fired if I pursue my Workers' Compensation Claim?

From the very first client I represented in a Workers Compensation Claim, I have been asked this question. While it is unusual for an employer to terminate an injured employee the same day they are injured, it does indeed happen. Having an attorney that ensures your rights are preserved and understands the Workers Compensation Law will make a big difference.

Remember, by failing to provide you with benefits your employer is effectively breaking the law, robbing you of benefits the Legislature put in place to protect you, the injured worker. You are simply asking your employer to comply with the law. If you do not protect your rights, you will lose them. Basically, if you do not report the accident and there is no record of the accident, if you are terminated that may be it for you - an attorney can try to go back and make an argument, but the harm would have been done.

What if you did protect your rights? If you had properly reported the accident and had otherwise not compromised your ability to recover compensation benefits and your employer fires you in retaliation for the injury claim, here's what you may be able to do:

1. Sue your employer for wrongful termination based upon retaliation.
2. Receive a portion of your lost wages until your doctor sends you back to work.
3. Possibly continue to receive lost wages until you find a new job.
4. Have all your medical bills (including prescription and transportation) from authorized providers paid for.

If you have been injured in a work related accident, and you have a qestion about the rights you may have, please feel free to call us for your free consultation 1-888-9-MNC-LAW.

If you have a question about anything contained here, please feel free to contact our office at 954-577-5763. Our office is located in Broward County, Florida in the City of Plantation.

Gregory A. McFarlane, Esquire

Where's my $10,000 or What is Florida No Fault "PIP" Insurance

Many of us in South Florida have heard advertising that states that you may be entitled to $10,000.00 in lost wages and medical bills. While that statement is technically true, it is more accurately stated that if you are in an automobile accident in Florida, assuming you are insured, you would be entitled to medical and lost wage benefits up to $10,000.00.

It's called a benefit because the Personal Injury Protection Adjuster is not going to issue a check based on the fact that you were in an accident, or you were not able to work. So what exactly is the Florida No Fault Law? Well as it pertains to Personal Injury Protection Insurance ("PIP") it covers you personally for 80% of all medical bills related to your injury from the auto accident up to $10,000.00. It also covers 66 2/3 of lost wages up to $10,000.00. (the combined wage loss and medical loss cannot exceed $10,000).

It is important to point out - this coverage applies to all people who carry automobile insurance in the state of Florida and/or anybody who resides with a relative that carries auto insurance (provided that individual is not specifically excluded from the policy). That means if you are in an accident, there is no good reason not to at least have yourself checked out at hospital, urgent care center or doctors office. Many of the health professionals that treat injured motorists will often provide transportation at no cost to the patient.

So how do I get my benefits under the Florida No Fault Law.

First you have to report the accident. Once that is done your insurance company will send you a PIP Application packet, you should have your attorney help you complete this. The adjuster may also request that you give an informal statement - your attorney can help guide you through this process. The additional forms sent in the packet are releases allowing the PIP adjuster to recover the necessary documents to process your claim.

Should you have a question about the Florida No Fault Law. Feel free to contact our office at (954) 577-5763 or go here to see Florida Statutes 627.736.


Gregory A. McFarlane, Esq
(954) 577-5763

Why should I have Uninsured/Underinsured Motorist Coverage?

You should carry uninsured/under insured motorist coverage to ensure that you are adequately insured should the unthinkable happen. Uninsured/Under Insured Motorist ("UM") Coverage protects you if you have been injured in an accident and the person causing the accident is either uninsured or does not carry sufficient insurance coverage to cover your loss. Health/Medical Expenses are one of the leading causes of bankruptcies so it is important to protect yourself. Remember this coverage ensures that you're protected even if the other guy isn't. The question you really want to ask yourself is, do I feel that the other people driving are safe drivers that carry full insurance coverage? If they don't you want to ensure you are covered.

Ask yourself what would happen if through someone's negligence you are injured to the extent that your medical bills are skyrocketing, you are unable to work and your vehicle is totaled, you then discover that the person that hit you is unemployed has no assets and his automobile insurance does not cover your bodily injuries. Well, if you had a UM Policy, your insurance company would be obligated to pay you a sum sufficient to cover the loss or that portion that was not covered by the insurance carrier of the person who caused the accident. There is an article that talks about UM coverage in more detail you can read it here.

If you have a question about this valuable automobile insurance coverage, or a question about a car, truck or other accident or injury, please feel free to contact our South Florida office and talk to one of our injury lawyers for your free consultation (954) 577-5763.

Gregory A. McFarlane, Esq

What to do if you're injured at work.

1. REPORT THE ACCIDENT. It is very important that you report the accident immediately to your supervisor. You should insist that a first report of injury is generated. If your employer refuses to prepare a first report of injury you should contact a lawyer immediately. If your accident is not timely reported your claim may be barred regardless of the extent of your injury. Note that the law requires you to report the work accident within 30 days.

2. KNOW YOUR BENEFITS. Workers Compensation Law can be very confusing and complicated. The full extent of what benefits are available will differ dramatically from injured worker to injured worker, however there are some basics:
(i) Authorization of a Primary Care Physician - Once it is determined that you had an accident in the course and scope of your employment (fancy way of saying you were injured while working) you are immediately entitled to a Primary Care Physician to evaluate and treat your injuries.
(ii) Lost Wages - If as a result of the injury you are unable to go back to work within a few days you will probably be entitled to recover 66 2/3 of your average weekly wage, during this time of disability.

There are other benefits that you are immediately entitled to, however, you should discuss with an attorney when, how and why to exercise those benefit. The benefits can be classified into two groups, Indemnity Benefits (lost wages) and Medical Benefits. You are entitled to Indemnity Benefits if you are unable to work for extended periods due to the work injury and you may be entitled to partial payments if you are working at a diminished capacity. Medical Benefits are based primarily upon the recommendations of your treating doctors. For example if your authorized Orthopedic Surgeon writes a prescription for an MRI, you are now entitled to that medical benefit.

3. TREAT - It is very important when you have a Workers' Compensation Claim to treat with your authorized doctor. If you do not treat with your authorized treating doctor for an extended period your case could be closed and your benefits cut off, eliminating your entitlement to future benefits or the possibility of a settlement. If you disagree with your doctor, you have the right to change to another doctor. However you can only change doctors once per accident and therefore great care should be taken when making this decision. If you ahve any questions you should talk to an attorney so that your rights are protected.

4. FIGHT FOR YOUR BENEFITS - We are in a recession and jobs are increasingly more difficult to come by. As a result, you may be afraid to pursue a claim against your employer and choose not to report the accident. However, remember that you are ENTITLED TO THESE BENEFITS.

The bottom line is, if you do not know what to do, call a lawyer, the consultation is free and there is no obligation. If you have been injured at work and have a question about a benefit or if you are concerned about losing your job, please feel free to give our office at (954)577-5763. Our accident injury lawyers are available 24 hour a day, 7 days a week to answer your injury questions.

Gregory A. McFarlane, Esq.

What to do if you're in an accident.

1. Call for help - if you are able you should contact the authorities as soon as possible so that medical assistance can be dispatched.

2. Assess the situation and do whatever is necessary to protect your safety and the safety of any other individuals in the accident. Although we would prefer that the scene is recorded by photographs or other recording device, it is more important that you get to safety and out of the way of traffic.

3. Call your attorney. You will need to report the accident to your insurance company, however if possible you should contact your attorney, prior to speaking to any insurance company. If you are unable to reach your attorney, you should report the accident, however:
- Do not discuss what your injuries are, you may still be going through shock and unaware of the full extent of your injuries. Let the adjuster know that you will be going to the doctor and the doctor will indicate the extent and nature of your injuries.
- After an accident, you may not be as articulate explaining the intricacies of an accident. For the purposes of reporting the accident you should be as general as possible, until you had an opportunity to collect your thoughts.

4. Before the authorities arrive, if you are able to do so, you should, get the information of everyone that was involved in the accident. You should pay attention to what people say and write it down if possible.

5. If you have a camera or if your mobile phone is so equipped, take as many pictures at the scene as you can. You should also pay attention to any unusual actions by the other drivers especially if you feel that someone may be under the influence.

6. Once the police arrives, insist that they write up a report. If you suspect that the person that hit you was intoxicated or in some other way impaired, please let the officer know.

7. If you were not transported by ambulance to the hospital, it is in your best interest to drive yourself (if you are able) to a hospital or urgent care center to have a doctor examine you for any injuries that may not be obvious.

8. If you had any bruising, cuts, or any other disfigurement, photograph and document those injuries.

9. Follow the advice of your doctor.

10. Follow up with your attorney to ensure all your rights are protected.

Please remember that every legal situation is different and therefore you should contact an attorney regarding your specific legal issue. If you have any questions regarding the preceding, or if you have any questions about an accident or injury case, please feel free to our office.

Gregory A. McFarlane, Esquire