Personal Injury

1. How long does an insurance company have to settle an auto claim?
   • There is no specific time limit that the insurance company must come to a settlement agreement. However, once the person and the company have agreed in writing on a settlement amount, the insurance company must pay within 20 days or pay interest as provided by Florida Statute 627.4265.
2. How long will it take to settle my case?
   • This answer depends on the difficulty of the case and on the facts of the case. Typically the average auto premises liability/auto case or any other type of general negligence case is resolved anywhere from 4 to 8 months after signing the contract with the firm. At Rosenthal & Weissman, our main concern is making sure the client is healed and has a good understanding of what their future medical condition will be before any settlement offer is attained.
3. How much is my case worth?
   • Cases have value based on five areas assuming the liability, i.e. who was at fault and that this issue is clear. Plaintiff's in personal injury cases are entitled to five areas of damages. Those areas are as follows:
     
     • Past Medical Bills
     • Future Medical Bills
     • Past Lost Wage
     • Loss of Earning Capacity in the Future
     • Pain and suffering
     There is no way to determine exactly how much a case is worth and it depends on the evidence in the case. This would include any inconsistencies in testimony, medical records and other issues which would allow the insurance company's lawyer to take away credibility from the injured party's case. Even with that information, it is difficult for the attorney to come up with an exact figure but, typically, a range of value based on our experience in handling these types of cases can be determined.
4. I can't afford an attorney, what should I do?
   • Cases like these normally don't pay the attorney any money until a settlement is reached and you win your case. Fees are usually 33 1/3% of the settlement.
5. I was burned by a curling iron, can I sue the manufacturer?
   • This would be a products liability case and you may be able to sue but know that although the manufacturer is responsible for defective products, the following should be considered in your case:
     
     • Was the defect unreasonably dangerous?
     • The seller who sold the iron must be in business of selling that particular product.
     • The item must not have been changed between the time it left the seller to the time the user had the item their possession.
     • The defect directly caused the injury.
     • The product was used properly.
     
     
6. I was involved in an automobile accident, and the company has not yet inspected my car or authorized a rental car. Is there a time limit on how long an insurance company can take?
   • There is no law that governs a time limit. Seven to ten working days should be plenty of time for the insurance company to inspect the vehicle and authorize a rental car (if this is part of your policy coverage).
7. If I have full coverage, why am I not covered?
   • Full coverage can mean a variety of things, but with regards to automobile negligence cases, full coverage would entail PIP or no-fault, medical payment benefits and un/underinsured motorist coverage. The PIP coverage applies whether or not the consumer is at fault, the medpay benefits can make up for what the PIP does not cover. Underinsured or uninsured motorist coverage is probably the most important which allows you to collect from your own insurance company if you are injured through the negligence of someone who has little coverage or no coverage. Very often our clients think they have full coverage until they have an accident.
8. Is it true that if I rear end a car that I am at fault?
   • Almost always the answer is yes. The law says that you have to be able to stop safely if a car stops in front of you.
9. Is there a time limit on how long an insurance company can take to inspect my vehicle and authorize a rental after I have had an accident?
   • There is no Florida Statute or department Rule, which states a time limit. Seven to ten working days should be enough time for a company to inspect a damaged vehicle and authorize a rental car.
10. The other driver's insurance company offered me money. Should I take it?
    • No. Tell the insurance company that you will get back to them. In the meantime, contact an attorney immediately. Insurance companies will offer a minimal amount of money in return for your signature stating that you won't sue. Never take insurance money without consulting an attorney first.
11. What is MMI and a permanent impairment rating?
    • This is a term that means maximum medical improvement and simply put says you are as good as you are going to get medically. It is at this point that some doctors assign, and insurance companies request a permanent impairment rating. This is done pursuant to AMA guidelines. Many automobile insurance companies like to have the impairment rating so they can evaluate the case.
12. What is the minimum amount of insurance required to be carried in order to comply with Florida's auto insurance laws?
    • Any person who has a car in Florida for more than 90 days during the preceding 365 days, resides in Florida, is employed in Florida, or has children enrolled in school in Florida, must purchase Personal Injury Protection coverage ($10,000) and Property Damage Liability Coverage ($10,000). In addition, if the insured is involved in an accident , the Financial Responsibility Law, requires Bodily Injury Liability coverage ($10,000 one person, $20,000 one accident or $30,000 combined).
13. What is wrongful death?
    • Laws that give family members a cause of action against someone whose negligence resulted in the victim's death.
14. Why am I responsible for my PIP deductible?
    • The "no fault" or PIP statute states that up to a $2,000 deductible is allowed by the insurance companies for sale to consumers. This is the largest deductible allowed. When consumers go to the insurance companies to buy insurance they can elect to not have a deductible or have a deductible smaller than the $2,000. In the event of an accident that is no fault of your own, the person who caused the accident has the benefit of our client's insurance premium.
15. Why do I have to pay costs in the case?
    • Our firm uses the Florida Bar approved contingency fee contract. That contract allows for 33 1/3 % recovery prior to the filing of the lawsuit as well as payment of costs by the client. We are able to keep costs down in presuit and the early litigation stage. As the case moves to trial costs can vary. Costs are just a fact of life in litigation. Ultimately they are paid by the client in the event of recovery.
16. Why do I need no fault insurance?
    • Almost one half of all states legally require this insurance. It helps to eliminate liability claims in smaller accidents by exchanging direct payment by the injured's insurance company. It doesn't however, cover auto damage so a claim should still be filed for this.
17. Why do we have to use my insurance company if I did nothing wrong?
    • Even if you are in an accident that is based on the negligence on another person we still are able to make a claim for personal injury protection benefits, more commonly known as PIP. This is classic "no fault" insurance that legislature designated would pay 80% of a person's medical bills and 60% of a person's lost wages, up to $10,000, whether they are at fault or not. This would also apply to any sums of money when a client's PIP is exhausted or they have health insurance.

Workers' Compensation

1. Can I apply for and receive Social Security Benefits if I am receiving workers' compensation benefits?
   • Yes. You can receive both benefits simultaneously. However, the employer is entitled to offset your workers' compensation benefits by a percentage of the net amount of Social Security benefits you receive. You should consult an attorney to determine if it is in your best interest to receive Social Security benefits or wait until your workers' compensation case is resolved.
2. Can I force the workers' compensation insurance company to settle and can the judge force the insurance company to settle?
   • No. Any settlement of workers' compensation benefits under Florida Workers' Compensation Law is a completely voluntary exercise. A workers' compensation insurance company cannot force an injured worker to accept any settlement at all. Conversely, an injured worker cannot force or require the workers' compensation insurance carrier for a certain amount of money to settle his or her claim. Most settlements of workers' compensation claims in Florida occur as a result of the mediation process. Mediation is a process where by the injured worker and the workers' compensation insurance carrier and their attorneys' attend a meeting in an attempt to settle the issues or the entire case with the help of a mediator. All settlements under Florida Workers' compensation Law are required to be signed by all parties and approved by a Judge of Workers' Compensation Claims.
3. Can I quit my job?
   • Leaving your employment while treating with an authorized workers' compensation doctor could affect your rights to receive certain types of lost wage benefits. If you are treating with an authorized workers' compensation doctor and that doctor has released you to work with restrictions, it is important that you attempt to return to work for the employer within those restrictions. Failure to do so could result in the workers' compensation insurance carrier discontinuing the payment of lost wage benefits. The law is quite complicated on this issue. As such, it is generally a fact-specific determination.
4. Does the law allow me to sue my employer for the accident?
   • When employers properly obtain workers' compensation insurance for their employees, the law allows them almost complete immunity from law suits brought by their employees against them. An employee can only sue his employer if that employee can prove in court that the employer has engaged in any intentional act that causes harm or is certain to result in injury or death to the employee (Florida Statute 440.11). Most employers are required by law to participate in the workers compensation system. Benefits under workers compensation are limited and provide partial wage replacement and all medically necessary treatment. We always consider the possibility of alternative actions to maximize recovery.
5. How can I get a new doctor?
   • Since January 1, 1997 all employers have been required by law to provide all medically necessary treatment solely through managed care arrangements. This represents a significant departure from the way Florida employers and workers' compensation insurance companies had delivered and managed workers' compensation medical care in the past. Although it has become increasingly difficult and confusing to obtain medical treatment in a workers' compensation case, injured workers are in fact allowed a one time change in their authorized treating physician pursuant to Florida Statue 440.134. Additionally, an injured worker is allowed to obtain one second medical opinion by a doctor within the same specialty as his or her current authorized treating.
6. How can I hire an attorney if I am not working and have no money?
   • If we file a claim on your behalf, you do not have to pay anything until we recover benefits for you. If we are successful, the attorney fee will be deducted from the benefits that are recovered. The fee in most cases is less than twenty percent of the amount recovered.
7. How much does the employer or workers' compensation insurance company have to pay me when I am out of work?
   • The amount of the workers' compensation benefits that a workers' compensation insurance carrier is obligated to pay an injured worker while that injured worker is physically unable to return to his or her job is governed by Florida Statue 440.14. Unfortunately, this is an area of the law that is very confusing and often results in injured workers not receiving the correct amount of benefits that they are lawfully entitled to. Basically, a workers' compensation insurance company is required to pay an injured worker 2/3 of the amount the injured worker was earning at the time of the injury. If an injured worker is working two jobs at the time of the injury, workers' compensation law provides that the injured worker be paid on the basis of the earnings at both jobs; this is assuming that both jobs were subject to workers' compensation coverage and benefits. Many issues come from whether the workers' compensation insurance carrier is paying an injured worker the correct amount of benefits. Issues such as the inclusion of tips, the value of housing provided to employees, the earnings at a second job, and the value of group health insurance often arise during a workers' compensation claim and require an attorney's involvement to insure that an injured worker is paid the correct amount of benefits he or she is entitled to under law.
8. I've been receiving benefits for my back injury for a couple of years, then last month my benefits were stopped. Is the Employer allowed to do this?
   • Theoretically, an employer is not allowed to stop your benefits without an agreement that is signed by you or without a court order by a judge authorizing the employer to stop your benefits. In the event this happens, however, it is typically necessary to begin litigation and even go to trial to reinstate benefits.
9. What benefits am I entitled to under the workers' compensation law?
   • Under Florida law, an injured worker is able to recover lost wages (2/3 of their gross wages subject to a statutory maximum) for a very limited period of time before reaching medical maximum improvement by their treating doctor. Once they reach maximum medical improvement (MMI) the insurance company is only required to pay a small amount of benefits called impairment income benefits. This is based on a permanent impairment rating that the treating doctor assigns. If the injury results in the death of an employee, Florida Law provides benefits to the surviving family members. It also allows for virtually unlimited medical care for the treatment of the injury such as attendant care, mileage, prescription medication, surgery, physical therapy and diagnostic studies. The difficulty in these claims often is due to the discrepancy between each sides view of what benefits are due. Oftentimes requesting and receiving medical benefits under the workers compensation law can be very confusing and frustrating requiring the assistance of an experienced and qualified attorney.
10. What happens if I get fired from my job?
    • The law states that no employer can fire an employee because that employee has filed a valid workers' compensation claim. Effective January 1, 1994 an injured worker who has been wrongfully fired by the employer due to his workers' compensation injury can bring a civil action against his employer. In order to recover damages under this statutory provision it is necessary to prove that the reason the employer fired the injured worker was due to the injured worker filing a workers compensation claim.
11. What is my workers' compensaton worth?
    • There are many factors that come into play in every case, all of which can change the value of the case. Items to consider are age, the injury, wages, educational level, type of job, medical care needed, etc. All have a great impact on the value of the case. Because of the complexity of the law, it is essential to have help to obtain the maximum value on the case.
      

Social Security Disability

1. After becoming disabled, do I have to wait before I can file for Social Security Disability Benefits?
   • You can file for SSD on the same day you become disabled. Do not file a Social Security disability claim if there is only a minor illness which is unlikely to last a year or more. If you have had a serious illness or injury and know that you will be out of work for a year or more, you should file a claim for Social Security disability benefits right away.
2. How do I apply for Social Security Disability Benefits?
   • You can contact Social Security by telephone at 1-800-772-1213 and arrange for a telephone interview to file your claim or you can go to your nearest Social Security Office in person.
3. How much will I get if I am approved?
   • For all types of SSI benefits, there is a base amount that an individual can receive provided that have no other income. Other income would reduce the base amount of the SSI. Disability insurance benefits depend on how much you have worked and earned in the past.
4. I am a stay at home mother and have become ill; I worked a long time ago; can I file for Social Security Disability Benefits?
   • If you worked five out of the 10 years under Social Security before becoming disabled, you will have enough earnings to qualify for Social Security benefits. If you have not worked five out of the last 10 years, you may qualify for Supplemental Security Income (SST) whether you have worked in the past or not.
5. I am currently receiving workers' compensation benefits. Can I file a claim for Social Security disability benefits now or should I wait until after I settle my case?
   • You should not wait until the worker's compensation ends. A person can file a claim for Social Security disability benefits while receiving workers' compensation benefits. To avoid a gap between the time workers' compensation ends and the Social Security disability benefits begin you should file the claim as soon as possible.
6. If I am disabled and have money in a savings account and other money in the bank, can I still apply for Social Security disability benefits?
   • Yes, as long as you have worked in recent years or if you are applying for Disabled Widow's or Widower's benefits or Disabled Adult Child benefits, it does not matter what money you have.
7. In order to qualify for Social Security disability benefits, do I have to be permanently disabled?
   • No. You have to have been disabled for at least a year or be expected to be disabled for at least a year or have a condition that can be expected to result in death within a year.
8. Is it true that I can receive both workers' compensation benefits and Social Security disability benefits?
   • Yes, however there is something called an offset, which will reduce the Social Security benefits because of the workers' compensation benefits being paid, but you will receive some Social Security benefits paid.
9. What is the waiting period before approval for Social Security disability benefits?
   • If you are approved at your initial filing, it should take 30 to 90 days. If you are not approved at your initial filing, it could take as long as 18 to 24 months. This requires two appeal steps which are a Request for Reconsideration and a Request for Hearing before an Administrative Law Judge.

Nursing Home Abuse

1. Can we settle the case without going to court?
   • Yes, normally 85-90% of cases settle before going to trial.
2. Do I have to tell my siblings, who never paid any attention to dad/mom about the settlement?
   • All persons entitled to an estate's assets under the laws of intestate succession or probate laws must be informed at some point that a claim is being pursued. This does not mean that they are entitled to any share of any settlement proceeds or judgement. Entitlement is dependent upon many variables, whether a will exists, etc. It is best that all family members know about the claim and are available to assist in the prosecution of the claim.
3. Do we have a case and if so, how much is it worth?
   • Each potential case is always evaluated on a case by case basis. Although our attorneys can provide their opinions, a jury ultimately will decide the amount of damages to be awarded if the case is not settled beforehand.
4. Should I move my loved one out of the nursing home if we are suing them?
   • Yes, because you put them at an even greater risk for mistreatment and retaliation by the nursing home personnel.
5. Why do we have to set up an estate of guardianship?
   • According to the law, a legal entity needs to exist before a lawsuit can be pursued. In the case of a deceased person, this requires the appointment of a personal representative of the estate of that deceased person. If this is a case of an incompetent senior citizen, the appointment of a legal guardian is required by the court.
6. Why does an insurance company have any claim to the settlement proceeds?
   • Florida law allows for health insurance companies to recover monies paid toward medical expenses necessary by the negligence of nursing homes and health care providers. The same laws allow Medicare and Medicaid entitlement to be repaid under Federal and State of Florida statutes. Our attorneys work to legally minimize the amounts that get repaid from your settlement proceeds.
7. Why does it take so long?
   • It takes time for reviewing records and evidence in order to present the best case against the defendant. An experienced attorney will tell you that there are a number of laws and loopholes that have been created from the lobbying efforts by the health care industry. This makes it a difficult process and can cause delays.
8. Why won't an attorney take my case even though the doctor was at fault?
   • We cannot take every case involving medical negligence because they are very expensive and many times the costs of litigating the case will be more than the damage caused by the negligence.

WAGES, PAY AND BENEFITS

1. Are periodic performance evaluations required?
   • The FLSA does not require employers to prepare performance evaluations. The drafting of performance evaluations are generally an option of the employer, or a matter of agreement between an employer and employee (or the employee's representative).
2. How are vacation pay, sick pay, holiday pay computed and when are they due?
   • The FLSA does not require payment for time not worked, such as vacations, sick leave or holidays (Federal or otherwise). These benefits are matters of agreement between an employer and an employee (or the employee's representative).
3. How is severance calculated and when is it due?
   • The FLSA requires payment of at least the minimum wage for all hours worked in a workweek and time and one-half an employee's regular rate for time worked over 40 hours in a workweek. There is no requirement in the FLSA for severance pay. Severance pay is a matter of agreement between an employer and an employee (or the employee's representative).
     The Employee Benefits Security Administration ( EBSA ) may be able to assist an employee who did not receive severance pay required in his or her employment contract.
4. Is extra pay required for weekend or night work?
   • Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for weekend or night work. However, the FLSA does require that covered , nonexempt workers be paid not less than time and one-half the employee's regular rate for time worked over 40 hours in a workweek.
5. When are pay raises required?
   • Pay raises are generally a matter of agreement between an employer and employee (or the employee's representative). Pay raises to amounts above the Federal minimum wage are not required by the FLSA.
6. When must breaks and meal periods be given?
   • The FLSA does not require breaks or meal periods be given to workers. Some states may have requirements for breaks or meal periods. If you work in a state which does not require breaks or meal periods, these benefits are a matter of agreement between the employer and the employee (or the employee's representative).

OVERTIME AND WORK HOURS

1. How many hours per day or per week can an employee work?
   • The FLSA does not limit the number of hours per day or per week that employees 16 years and older can be required to work.
2. How many hours is full-time employment? How many hours is part-time employment?
   • The FLSA does not define full-time employment or part-time employment. This is a matter generally to be determined by the employer. Whether an employee is considered full-time or part-time does not change the application of the FLSA.
3. Is extra pay required for weekend or night work?
   • Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for weekend or night work. However, the FLSA does require that covered, nonexempt workers be paid not less than time and one-half the employee's regular rate for time worked over 40 hours in a workweek.
4. When can an employee's scheduled hours of work be changed?
   • The FLSA has no provisions regarding the scheduling of employees, with the exception of certain child labor provisions. Therefore, an employer may change an employee's work hours without giving prior notice or obtaining the employee's consent (unless otherwise subject to a prior agreement between the employer and employee or the employee's representative).
5. When is double time due?
   • The FLSA has no requirement for double time pay. This is a matter of agreement between an employer and employee (or the employee's representative).
6. When is overtime due?
   • For covered, nonexempt employees, the FLSA requires overtime pay at a rate of not less than one and one-half times an employee's regular rate of pay after 40 hours of work in a workweek. Some exceptions to the 40 hours per week standard apply under special circumstances to police officers and fire fighters employed by public agencies and to employees of hospitals and nursing homes.
     
     Some states have also enacted overtime laws. Where an employee is subject to both the state and Federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher rate of pay).

RECORD KEEPING AND NOTICES

1. Are pay stubs required?
   • The FLSA does require that employers keep accurate records of hours worked and wages paid to employees. However, the FLSA does not require an employer to provide employees pay stubs.
2. What notices must be given before an employee is terminated or laid off?
   • The FLSA has no requirement for notice to an employee prior to termination or lay-off. In some situations, the WARN Act provides for notice to workers prior to lay-off. Some states may have requirements for employee notification prior to termination or lay-off.
     
     Florida is a right to work state.