Lyle B. Masnikoff & Associates, P.A | Social Security Disability Lawyer, Workers Compensation, Personal Injury Protection, PIP Attorney, West Palm Beach, Orlando, Pompano, Miami Fri, 03 Nov 2017 22:34:35 +0000 en-US hourly 1 Out and About for the Community Tue, 03 Oct 2017 17:36:01 +0000 On July 29, 2017, Lyle B. Masnikoff & Associates had the privilege of being a top sponsor for the First Annual Heathcote Botanical Gardens Showdown on the Green which took place at Indian Hills Golf Course in Fort Pierce, Florida.

Heathcote Botanical Gardens is a not for profit organization whose mission is to educate and inspire by providing a place of botanical beauty and to serve as a resource for the conservation of our environment. The Gardens consists of an assortment of specialty gardens including a Japanese Garden, Reflection Garden, Herb Garden, Rainforest Display, Native Plants Garden and a Palm & Cycad Walk. The day was filled with fun, golf and camaraderie for an excellent cause.

Throughout Mr. Masnikoff’s sixteen-year career, he has strived to provide the best service possible, with the highest regards to his clients and the community. He takes the time to make sure his clients, and the community, are as educated as possible when an unexpected injury occurs so as to mitigate any potential hardships that may arise as a result. We take the to make sure you fully understand the law and the complexity of the workers compensation system in Florida.

If you or anyone you know has any questions regarding an injury at work, we would love to discuss your case and explain all of your options to make sure that you receive the benefits that you are entitled to so you can avoid as much hardship as possible. Please give us a call at (877)817-4127.

Heathcote #1 Heathcote #2

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Am I entitled to benefits if I Violate a Safety Rule? Sun, 03 Sep 2017 17:43:29 +0000 Are you  entitled to benefits if you violate a safety rule? The short answer is yes. It is extremely important that we adhere to our company’s safety regulations and rules while we are at the workplace. These regulations are in place to protect ourselves and our co-workers. At times, however, we may be extremely busy, under deadline, or have some other pressures associated with the job that cause us to overlook or forget about a safety regulation that in turn plays a part in causing an injury. This oversight is not due to any malicious, or intentional act, but is simply a mistake. What happens?  You are still covered.

How you are covered will depend on a couple of factors. First, let’s say that your employer gives you a harness, or some other safety device, and you refuse to use it. Florida Statute § 440.09(5) allows the insurance carrier to reduce your benefits by 25 percent in this instance. This could mean that your indemnity, or missed wage benefits, are reduced by 25%. This is very important because if you are on a no work status from your doctor, the most in indemnity payments you can receive is 66 and 2/3 percent of you average weekly wages. In essence, at best, your wages are already reduced by a third. If you knowingly refuse to follow a safety rule, the carrier can knock another 25 percent off the top. This could severely affect your ability to pay bills and put food on the table.

This also means that instead of receiving medical treatment at no cost to you based on your work injury, you may have to pay 25 percent of your medical bills. Your private health insurance would not cover the difference. Depending on your injuries, this could get very expensive. What is a “willful refusal” of following a safety rule or using a safety appliance? This is where it gets tricky. The Florida Supreme Court has previously stated that the mere violation of a statute, ordinance, or regulation is not willful misconduct as a matter of law. The Court went so far as to say that mere negligence and even gross negligence, fall short of willful misconduct. Arguably, the carrier must show that the employee also knew that the refusal would likely lead to injury.

This also holds true for violation of traffic laws. Traffic laws amount to safety rules when such laws are intended to protect the public from harm. You should think about this the next time you are driving as part of your employment and do not use your seatbelt. Even if there is willful refusal, the safety device at question must have been in working order and available to the employee.

Also, the employer must show that the safety rule in question was enforced. If the employer does not enforce the safety rules, the carrier is not entitled to the reduction.

Throughout Mr. Masnikoff’s sixteen-year career, he has seen carriers time and time again, attempt to use this defense, sometimes unjustly. We take the to make sure you fully understand the law and the complex issues that will arise. We would love to discuss your case and explain all of your options to make sure that you receive the benefits that you are entitled to and that those who wrongfully withhold those benefits are held accountable. If you or someone you know is in this situation, please give us a call at (877)817-4127.

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The State of Workers Compensation in Florida Sun, 12 Mar 2017 03:53:24 +0000 The Florida legislative session began on March 7 th and is currently scheduled to run until May 5, 2017. Workers’ Compensation insurance rates were recently increased so along with many other “hot button” topics, the future of the Workers’ Compensation system in Florida is being hotly debated. If fact, one proposal of changes to the law did not make out of the committee stage, just this week.

What is at stake? The answer is “a lot”. The workers’ compensation system is meant to protect both the employer and the injured worker. The simple math is that with a rate increase, employers may not be able to hire as many workers, give raises, etc… The question becomes, what is the best way to ensure that rates due to not “explode” but still keep a system in place that gets the injured worker quick and efficient medical care and missed wage benefits, so that their financial burden is mitigated as much as possible while recovering, and get them back to work.

How is this done? This question is really the impetus of the debate. On one end of the spectrum, you have those that argue that the rate increase is due to a series of recent Supreme Court cases that changed the law regarding fees, most notably Castellanos v. Next Door Company. This case essentially revived a portion of the law that allows Claimant’s attorneys to collect hourly fees in certain instances when the Employer/Carrier wrongfully denies a requested benefit by the Claimant. Some will kick and scream that this is outrageous and a money grab and that premiums will go through the roof due to this. What people do not realize, or choose not to focus on, is that hourly fees are never due and owing from the carrier unless THEY WRONGFULLY DENY A BENEFIT THAT IS DUE AND OWING TO THE INJURED WORKER.

An injured Worker is Entitled to benefits under the Law

The benefit that they wrongfully denied, is a benefit that the injured worker is entitled to. A benefit that will assist the injured worker in getting back to work as soon as possible. This is the purpose of all benefits under the law. Essentially, the powers at be are raising rates to cover costs for their own mistakes and wrongful actions. I’m sure we all wish we could just simply pass the costs of our own wrong doings onto others. Without this, there is really nothing in the worker’s arsenal to make sure the carrier is doing what they are supposed to do. What incentive is there for an insurance carrier to provide benefits timely? Sure, some will do it because it is the law and right and what they are supposed to do, but some will not. It is the ladder that the threat of hourly fees protects the injured worker from. This helps employers.

Employers should want to make sure that their employees get good, efficient treatment and are back to work as soon as possible. They should want those who wrongfully deny their employees much needed benefits which in turn delays their return to work, to be held accountable. Without the fee provision, there really is no way to accomplish that. No substantive way.

Alternatively, some will argue that it is defense fees and attorneys that keep cases ongoing, delaying treatment and the injured workers return to gainful employment. Everyone can agree that defense attorney fees are not regulated nearly as much as Clamant attorney fees.

Some will say they are not regulated at all. For the most part, defense fees are based on billable hours. The simple math for this is, the more hours you work on a case, the more you bill, the more money you make. This could give attorneys an incentive to drag cases out longer than they should, especially if the fees are not regulated.
The reality is that there are bad actors on both sides, as in any industry. The parties need to work together and formulate a system that protects employees and employers.

Injured Workers should be the Focus

In a perfect world, the system would work seamlessly. The goal should be for this to be as efficient as possible so that the injured workers are able to return to work as quickly as possible, with as minimal of a financial burden on them and their families as possible. The parties from all interested groups have to come together and find a common ground that continues to protect the employee and the employer.

Throughout Mr. Masnikoff’s sixteen-year career, he has seen the law change many times. We take the time to make sure you fully understand the law and the complex issues that will arise. We would love to discuss your case and explain all of your options to make sure that you receive the benefits that you are entitled to and that those who wrongfully withhold those benefits are held accountable. If you or someone you know is in this situation, please give us a call at (877)817-4127.

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SSA Scheduling changes beginning May 1, 2017 Mon, 13 Feb 2017 04:17:35 +0000 If you are scheduled for hearing on May 1, 2017 or later, you will be experiencing a few changes with SSA. Previously SSA had to notify individuals 20 days prior to hearing, but beginning May 1, 2017, SSA will be required to give notice 75 days before the date of the hearing. This will give individuals ample time to obtain any missing medical records and to ensure they are prepared to go before the Administrative Law Judge.

Also on or after May 1, 2017, SSA is now requiring all evidence must be submitted at least 5 business days before the hearing date. Up until now most of the time you were able to get away with submitting evidence last minute with little to no problems. If you are unable to submit the medical evidence 5 business days before the hearing date, you must notify SSA of any missing evidence and the reasoning of why the evidence is not able to be submitted timely. The Judge will consider late evidence if their action misled you, a physical, mental, educational or linguistic limitations prevents you from submitting evidence earlier or is some unusual, unexpected or unavoidable circumstance beyond your control prevented you from obtaining evidence. The Judge will not consider evidence if you do not meet one of these reasons. This will give the Judges more time to review the cases prior to the hearing

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Will the Florida legislature get rid of PIP? Fri, 20 Jan 2017 04:27:57 +0000 A Florida state House subcommittee recently voted by a 12-2 margin to get rid of PIP insurance. The bill will still need to be be considered and voted on by the entire Florida legislature before becoming law.

Estimates state that would save the average driver $81 in annual insurance premiums, but at what cost to Florida’s citizens?

PIP insurance provides the swift, automatic payment of medical benefits (and lost wages) as a result of injuries sustained from an automobile accident. The benefits provide $10,000 in coverage, only a 20% co-payment (which many medical providers end up waiving unless there is a personal injury case, and a low deductible . The deductible is typically $500 or $1,000. Again, many medical providers waive the deductible.

Critics of PIP argue that PIP is duplicative with health insurance. This could not be further from the truth. One of the most common types of treatment people use their PIP insurance for is chiropractic treatment. Many health insurers have stringent restrictions on the scope and coverage with which they will cover chiropractic treatment.

Furthermore, even if health insurance does cover chiropractic treatment, there is often a co-pay. Thus, we could have injured persons having to pay $50 every time they see the chiropractor. For a scope of treatment that consists of three office visits a week for a period of a couple months, the $150/week quickly adds up.

Before even getting to a co-pay, most health insurers require that a deductible first be met. With the changes in health insurance over the past decade, deductibles are extremely high. For most people, they have deductibles of $5,000-$7,000 a year. So, instead of paying $81 extra for PIP insurance and having no out of pocket expense, an end to PIP could mean that injured persons are paying $5,000-$7,000 out of pocket from an auto accident.

Those advocating to get rid of PIP argue that they will make bodily injury coverage mandatory. That does not come close to the problem created. First, this assumes that all people will abide by the law. As it is, Florida has one of the highest uninsured driver rates in the country, with roughly 25% of people not having auto insurance. PIP insurance is already mandatory.

The best predictor of future behavior is past behavior. Going from mandatory PIP coverage to mandatory BI coverage does not mean that people will suddenly start following the law. So how will consumers have to combat a large percentage of people not having BI coverage? They will have to purchase UM (uninsured/underinsured coverage). This will mean that this big $81 savings is completely nullified, and the consumer will have to end up digging further into their pockets.

Even more significantly, you can only recover in a BI case if you are not at-fault. PIP benefits are also referred to as “no-fault” benefits, as you can get payment for your medical treatment regardless of whether or not you are at the at-fault party.

While there are certainly many gray areas when determining at fault parties, you typically have one at-fault party, and one “not at-fault” party in an automobile accident. The “not-at-fault” party is able to recover from the “at fault” party, but only if the “at fault” party has insurance, or otherwise has the means to pay a judgment. (Typically if they are not paying for insurance, they don’t have the means to pay a judgment).

So what happens to the medical benefits of the “at-fault” party? They are not able to recover from any kind of BI coverage. Thus, they will have to use their health insurance, and may be out of pocket $5,000 – $7,000, or even worse, go without treatment they can’t afford, but desperately need. Accidents happen. That is why they are called accidents. Do we really need an insurance system where our drivers are punished $5,000-$7,000 if they are at-fault for an accident? Isn’t the prevention of that scenario precisely what we purchase insurance for?


Lyle Masnikoff, Esquire
Lyle B. Masnikoff and Associates, P.A.
1645 Palm Beach Lakes Blvd, Suite 550
West Palm Beach, FL 33401
Phone (561) 598-7120
Fax (561) 598-7127

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Great News for Veterans Applying for SSDI in the Future Tue, 13 Dec 2016 17:49:50 +0000 Beginning in November 2016, the Social Security Administration announced the launch of a new Health IT initiative with the Department of Veterans Affairs (VA) that enables Social Security Disability processing sites the ability to receive medical records electronically from all VA facilities. Veterans will receive a faster decisions on their

Social Security disability claim, which will save time and money in the long run. Social Security and Attorneys requesting medical records from the VA can take months to obtain and this partnership allows Social Security and VA to share health information electronically in minutes.

Social Security also offers other programs to expedite veteran’s claims for disability who have become disabled while on active military service on or after October 1, 2001, and for Veterans who have received a 100% impairment rating from the VA.

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Here’s to 2016 and the year ahead in Florida Workers’ Compensation Thu, 17 Nov 2016 17:36:59 +0000 To say a lot has happened in workers compensation in Florida over the course of 2016 is an understatement. 2016 was the year of Miles, Westhphal, and Castellanos. Some say it the year the playing field was somewhat leveled back out for injured workers. Others say it is the “golden age of comp.” 2016 was probably a little bit of both.

In 2016 we saw three major decisions handed down by the Florida Supreme Court that are having a huge impact on workers compensation in this great state. In Miles, we saw the Court hand down a decision that allows attorneys to charge by the hour for work performed on a case. This decision allows injured works to have a better outlet for representation. Prior to the decision in Miles, attorneys could only be paid if there was a recovery. This severely effected claimants who had cases with difficult chances of winning, such as exposure cases. Prior to the decision, an attorney who took on these extremely difficult cases were all but assured a loss due to the construction of the law as it relates to exposure.

Now, if a Claimant wants to pursue the claim to the highest level, they will have access to attorneys who will be willing to put in the time and expense on fighting and maybe end up changing the law altogether. Before, it was not that the attorneys were greedy or wouldn’t take the case for the sole reason of not “making money” it was simple business. Almost no business, law firms included, can take such big risks and expand the amount of time and money that is needed on theses types of cases if there was almost no way to get any of it back. Business, would not be in business long with that type of mentality. Additionally, it allows claimants who are not represented to procure an attorney for the sole reason of an upcoming hearing, such as a hearing to enforce settlement. Prior to this, if the injured worker did not have an attorney, they were on their own unless they could find someone to take it on a pro bono status.

Now they can come to an agreement with an attorney on a flat fee or hourly fee for representation. In Westphal, we saw the Supreme Court expand indemnity, or missed wage, benefits from 104 weeks to 260 weeks. This allows injured workers with the severest of injuries to keep getting much needed benefits for up to five years. Prior to this, no matter what state of recovery the injured worker was in, as long as not at MMI, the missed wage benefits cut off after 104 weeks. Indemnity benefits are arguably the most important. Unfortunately, when we are injured, our bills do not stop. We do not get a “pause” on our mortgage or car payments. This decision allows injured workers to receive missed wage benefits for a longer period of time while they receive treatment so that they do not lose their homes and up on the streets losing everything and becoming a burden on the tax payer.

Castellanos, brought back the provision where attorneys may receive hourly fee rates when a benefit is wrongfully denied or provided late by the insurance company. Prior to Castellanos, at most the carrier would owe the Claimant’s attorney is a disproportionately small amount for providing the benefit untimely. What was their potential reward for waiting? They would hope that the injured worker gets frustrated and just gives up and goes away or goes out and gets in a subsequent accident that would get them off the hook completely.

The Supreme Court also recognized this and opined that “oftentimes the worker experiences delay and resistance either by the employer or the carrier. Without the likelihood of an adequate attorney’s fee award, there is little disincentive for a carrier to deny benefits or raise multiple defenses.” The Court goes further to state: “the employer under the worker’s compensation law has the prerogative to raise a whole host of defenses to denying benefits, while the employee is at the mercy of the E/C in being required to see the doctors chosen by the E/C…to navigate the current workers’ compensation system, after a denial by the E/C of benefits, would be an impossibility without the assistance of an attorney.”

The changes in 2016 work to level the playing field and ensure that insurance companies to what they are supposed to do. That is to provide quick and efficient benefits to injured workers so that they can get back to work and provide for their families.

What does 2017 hold? No one is really sure. Some camps believe the legislature will work to repeal the law or change it back in some way shape or fashion. Some will say that the 2016 decisions work to “kill business” and really hurt workers due to the increase in rates. Others will tell you that it really helps businesses because the law works to make sure insurance companies do what they are supposed to do so that your employees are back in the work force in a more timely fashion.

Over the past seventeen years Mr. Masnikoff has been practicing, he has seen the law change many times, usually for the worse. In 2016 the law has changed for the better to help injured workers. Do not allow insurance companies and other big business to influence your legislature in 2017. Let your representatives know how you feel about workers compensation and that these decisions are the best for the state, injured workers, and business. These situations can become extremely complex. We take the time to make sure that you fully understand this complex and frustrating law. We would love to discuss your case and explain all of your options to make sure that you receive the benefits that you are entitled to under the law. If you or someone you know is in this situation, please give us a call at (877)817-4127.

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State Farm Fee Schedule Cases Thu, 20 Oct 2016 17:22:40 +0000 As you are all well aware, State Farm’s policies from 2008-2011 did not allow for fee schedule reductions. Since that period of time, State Farm has modified the language in a number of different policies. However, numerous courts have ruled on the language in various versions of State Farm policies 2012 and later. A number of courts have held that State Farm’s policies do not properly elect to use the fee schedule. The issue is now going up to the appellate courts. If you have any cases in which State Farm has reduced your bills and paid them at fee schedule, you may be able to get paid if you sent these files to a PIP attorney.

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Workers Compensation Benefits and Issues That Can Be Decided By a Judge Wed, 24 Aug 2016 20:06:57 +0000 In workers compensation, there are two benefits that an injured worker is entitled to: medical treatment and lost wages. When an employee is injured while in the course and scope of employment, the Employer is required to send the injured worker to a medical provider that is covered by their workers compensation insurance. In many instances, the Employer is reluctant to send the injured employee for medical treatment and that is when hiring an attorney would be a good option. When an attorney is hired, a Petition for Benefits is filed with the Court requesting the benefits that the injured employee is seeking. Once the Petition for Benefits is filed, the Employer and their insurance company has a certain period of time to respond by either providing the benefits or denying them. If the requested benefit is denied, that becomes an issue which the Judge of Compensation Claims has authority to decide on.

How Much Money Should Be Offered in the Settlement?

One question that many of our clients have is whether the Judge has the authority to decide how much money they should receive in a settlement. The answer is that the Judge cannot decide the amount that should be offered in a settlement because a settlement is voluntary on the side of the injured worker and also on the side of the Employer/Carrier. However, the Judge has the authority to rule on any issues in the case. For example, if a Petition for Benefits is filed requesting medical treatment with a back specialist and the Employer/Carrier denies that benefit, that issue may be taken in front of a Judge to decide whether the benefit should be provided or not.
With regards to lost wage benefits, an injured worker is entitled to lost wage checks if a workers compensation physician has opined that the employee is unable to work or places the employee on certain restrictions which the Employer is not able to accommodate. In certain situations, the Employer does not provide work to the injured employee while they are on work restrictions, but lost wages are denied. If this occurs, the issue may be taken to a Hearing for a Judge to rule on.

As you can see, there are certain benefits that may be denied by the Employer/Carrier which may need to be decided by a Judge of Compensation Claims. That is why it is important to hire a Workers’ Compensation attorney who handles these types of situations in order to get advice about how to proceed with the case. If you are in this situation or know of someone who is, have them give us a call at (877) 817-4127.

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“Caution: Your Workers Compensation Case Can Be Over Before You Ever Get Hurt” Sat, 13 Aug 2016 20:08:17 +0000 Depending on how you answered your post-hire questionnaire…

In today’s world, a lot of companies will require new employees to fill out a post-hire medical questionnaire. Typically, this questionnaire will ask general questions about your medical history, prior injuries, whether or not you have ever had a workers’ compensation claim in the past, etc… Your answers could have a major impact on your potential entitlement to benefits.

In 1961 the Florida Supreme Court handed down their ruling in Martin v. Capenter, 132 So. 2d 400 (Fla. 1961). This ruling attacked the issue of the post-hire medical questionnaire. The Supreme Court essentially ruled that you are not eligible for workers’ compensation benefits for an otherwise compensable injury if the employee intentionally makes misrepresentations regarding prior medical history. In order for the defense to apply, the Employer/Carrier must prove four criteria: 1) that there is a causal relationship between the injury and the false representation; 2) the employee knee the representation was false; 3) the employer relied on the false representation; and 4) such reliance resulted in consequent damage to the employer.

Simply proving that the injured worker lied about a medical condition is not enough to support the defense.

The Employer/Carrier must prove a causal relationship between the pre- existing condition, and the new injury. This must be done through expert medical testimony.

This prong sounds difficult for the Employer/Carrier to prove. It is not. In workers’ compensation cases, the Employer/Carrier gets to pick the doctors. This means that if you are treating pursuant to a claim, you are going where they tell you. Typically, these doctors are very conservative and often make opinions that seem to favor the insurance carrier. The one who is paying the bill. Once they present evidence to the doctor that there is a pre-existing condition, chances are that the opinion will now longer be that the work accident is the major contributing cause, or 51% or more the need for treatment.

The second prong is that the employee must have known that the statement was false. A misrepresentation is different from a misstatement. A misrepresentation means that there was intent to mislead whereas a misstatement means that the employee may have simply forgot.

This also seems easy on paper. We forget things all the time. Depending on how in depth the employee’s medical history is, it certainly is not unfathomable that someone might forget an old knee injury or back injury etc… The problem is that it is extremely hard to show that someone simply forgot an injury or surgery or treatment to the same body part that is being claimed as part of the workers’ compensation claim. Unfortunately, people do try to obtain benefits under false pretenses and it is difficult, at times, to flush out what employees simply forgot and what employees are intentionally making false statements.

The third and fourth prongs essentially mean that the employer detrimentally relied on the false statements. It does not mean, as some believe, that the employer would not have hired the employee but for the false statements. It means that the Employer/Carrier need only show evidence supporting an inference that the employer would not have hired the employee had it known about the prior condition. This inference is sufficient even without Employer/Carrier’s witness expressly stating that the employee would not have been hired.

What should one do? Err on the side of caution.

Obviously, the best course of action is to be honest regarding any prior accidents and/or injuries. If you are going to answer “no” be completely sure that you have never injured the body part that they are asking about because you don’t want it to turn into a he said/she said scenario. I would even put on the side of the question something to the effect of “not that I can recall” or “I am not sure.” You can even leave the space blank if you wish. Interestingly, if you leave the space blank, that cannot be held against you. Blank spaces are not misrepresentations. They are not even misstatements.

Without a representation, there can be no reliance. It is the employer’s duty to follow up on an omission.

Over the past seventeen years Mr. Masnikoff has been practicing, he has seen employers and insurance carrier’s try to use the Martin v. Carpenter defense countless times. These situations can become extremely complex and it is important to have a dedicated, experienced advocate on your side. We would love to discuss your case and explain all of your options and benefits that you are entitled to under the law. If you or someone you know is in this situation, please give us a call at (877) 817-43127.

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