Archive for August, 2008

Florida Workers’ compensation and exposure cases

Posted in Workers' compensation on August 16, 2008 by leslie@lawyertampa

One of the amendments to the 2003 workers compensation statute in Florida was to change the standard for proving exposure cases.  An exposure case is any case in which a worker is exposed to a substance that can cause harm.  Just about any chemical, hazardous or not, can inflict damage depending on the concentration of the chemical and the duration of exposure.

Most workers have an exposure to a known chemical.  In some cases, like a firefighter entering a burning building, there may be an exposure to an unknown substance.  In either case, the employee bears the burden of proving exposure to a substance in sufficient concentration and for a sufficient duration to cause the harm suffered.  In many cases the worker can prove what he/she was exposed to, perhaps even the duration, but it is the concentration that is often difficult, if not impossible to prove.

Unless your work place is monitored for air quality or you wear a personal monitoring device, the ability to prove concentration is almost non-existent, and yet that is precisely what the injured worker must do.  In order to prove this element, scientific or medical testimony is required.  That testimony must prove up the duration/concentration requirements and must prove it by clear and convincing evidence, which is a higher standard than the normal competent and substantial evidence required in every other case.

This type of scientific evidence may require re-creating the workers’ actual work place incident or using empirical evidence common to the industry.  Regardless, this type of testimony is expensive.  So unless the worker requires lasting, expensive medical care, the attorney involved in the claim is unlikely to put up the $5,000 to $10,000 required to pull an environmental or toxicological expert into the fray.  It is just cost preclusive to try to prosecute minor exposure cases under the current statute.

Before the changes in 2003, the court had some ability to use the logical cause doctrine.  If you got a spray in the face of chlorine gas and developed a breathing problem you never had before, 1 + 1 = 2.  You could draw an inference.  Now you would have to prove the concentration you got sprayed with and under most situations this is all but impossible.  This is why they call them “accidents”.

If you’ve been exposed and the insurance carrier wants to deny your claim, get some quality assistance right away.  Both from a pulmonologist and a lawyer.

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Fibromyalgia and Social Security

Posted in Social Security Disability on August 10, 2008 by leslie@lawyertampa

Many of my clients learn through their physician that they may have developed fibromyalgia.  Most often this news comes from a rhumatologist, but in some cases it can come from a sharp primary care physician.  The diagnosis invariably comes after years of trying to pinpoint the cause of a host of medical problems. 

Fibromyalgia is often difficult to pinpoint because there is no specific test for the condition and the symptoms are often vague and seemingly unrelated.  Most clients report generalized body aches, tender points to the touch, fatigue, headaches and gastrointestional problems.  A condition that usually affects women, many patients have been passed from doctor to doctor without ever getting any definitive diagnosis.  They may be told they are depressed or going through menopause, but most women report a major shift in their health has occured and they don’t want to be told it’s all in their head.

By the time a client comes to me, there is usually a trail of doctors reports from unrelated specialties.  Primary care, orthopedics, gastrology, obgyn and neurology.  All with very little to offer.  If you have done your internet research you now know what you have and you may now need financial and medical help if you can no longer work.  If you are to the point where clerical work on a 40 hour a week basis is too much, an application for Social Security disability may be one of several options.

The disability application process is long and often frustrating, but with a little planning, a successful application on the basis of fibromyalgia is relatively easy.  The first step is to make sure you have access to medical care.  Social security claims may be pending for 2 to 3 years before approval and if you are not in medical treatment during the waiting period it can be much more difficult to prove your case.  You can COBRA you health benefits from your employer, get on your spouses insurance plan or seek county medical services.  If worse comes to worse go to a low cost clinic and work out a deal to pay cash for an appointment once a quarter.  A medical history of complaints is crucial to your case.

Second, having fibromyalgia creates a host of non-exertional complaints.  Social Security tends to classify physical complaints as either exertional (affecting your ability to sit, stand, lift, carry, walk etc.) and non-exertional (affecting you ability to see, hear, speak, concentrate etc.).  Many fibromylagia clients decribe headaches, irritable bowels, jaw pain, cramping, low energy or symptoms of depression.  Many of these complaints don’t neetly affect your ability to sit, stand, walk or carry.  They result in you having to lay down, run to the restroom or being so fatigued you can’t get off the couch. 

Those types of symptoms need to be relayed to your doctor and most importantly, written down in your medical chart.  This requires you telling your physician or their assistant that you need them to make notes in your chart about what you can and can’t do on a daily basis.  Tell your medical provider to log your complaints and make the same request each and every time you go see your doctor.  Having a series of consistent complants over a long period of time will assist the Judge who may hear your case find your complaints credible.  And credibility is 99% of the battle.

Fibromyalgia is a disease that’s a lot of little complaints.  I have a special form that I ask doctors to fill out that is specific for fibromyalgia alone.  The key to successful presentation of a fibromyalgia case, is to document all those symptoms over and over again and to get your doctor to appreciate how those symptoms affect you ability to work, cook, clean, drive a car, care for the kids, shop for groceries. That way when your doctor is asked to comment about your ability to work, the doctor’s own medical records form the foundation of their opinions.  An opinion from your doctor which is consistent with their own records is a winner every time.