Victims’ Compensation

On behalf of Charles Schuster of Gross & Schuster, P.A. posted in Legal Questions on Friday, October 30, 2015.

The Crime Victim Trust Fund was established in the State of Florida in 1977 pursuant to Florida Statute § 960.21. It receives offender generated federal and state dollars to provide services to crime victims. General categories for receipts include grants and donation, fines, forfeitures, judgments, restitution, subrogation, refunds, and warrant cancelations. However, the primary source of revenue is the mandated $50.00 court cost which accounts for seventy five percent (75%) of the funding received by the state. Of that $50.00 the clerk of the court obtains a dollar for administrative purposes and forwards the remaining $49.00 to deposit into the crime compensation trust fund. The federal government also contributes toward this fund.

The CCTF supports a number of programs including the Crime Victim Compensation Fund pursuant to F.S. § 960.07. In fiscal year ending June 30, 2014, the State paid $11,183,000.00 for victim compensation. In the First Judicial Circuit revenue provided to the CCTF amounted to $916,000.00. During that same time period victim’s compensation paid $44,740.00 in property claims and $1,390,000.00 in victim’s compensation, for a total paid of approximately $1,435,000.00.

The victim compensation fund is well known to crime victims and victims of sexual and domestic abuse since the state attorney’s office routinely directs victims to these services. However, the fund is also available to personal injury claimants and is an effective tool. In our practice we utilize the Crime Victim Compensation Fund in motor vehicle accidents that involve DUIs, hit-and-runs, or vehicular homicide since all of these actions constitute crimes under the statute. It is also available in when the victim is intentionally injured by a vehicle or boat.  On July 1, 2015 the legislature added fleeing and eluding as a compensable crime as well as forcible felonies that result in psychological or psychiatric injury without physical injury.  The act also applies to injuries to residents while out of state if the state where the injury occurred does not have its own Crime Victim Compensation system.

To be eligible for these benefits, (1) the crime must have been reported to law enforcement within seventy two (72) hours unless there is good cause for delay. (2) The victim must cooperate with law enforcement. (3) There is a one year statute of limitation in general which can be extended to two years for good cause. If the victim is under eighteen (18) years of age, the statute of limitations does not begin to run until they turn eighteen (18). (4) The victim must not have engaged in any unlawful activity or contributed to the situation that brought about their injury. (5) The victim must have suffered a physical, psychiatric, or psychological injury. (6) The victim must not have been confined or in custody at the time of the injury and (7) the victim must not have previously been adjudicated a habitual felon, violent offender, violent career criminal, or have committed a forcible felony.

Since the initial benefit in a personal injury matter is the elimination of deductibles and copays, you should qualify your client for Victim Compensation Services as soon as practicable.  Applications are available at myfloridalegal.com. Filing this application will get you the name of your analyst and a claim number. Your goal is to get a letter of eligibility.

First, you must demonstrate that you have been the victim of a crime. It is not necessary that the perpetrator actually be charged with the crime, although, that is the easiest way to establish that you have been a victim. More importantly it does not matter whether or not the perpetrator is convicted of the charge. All you need to do is show that the facts fall within the crime of DUI, hit-and-run, vehicular homicide or the other categories.

One of the eligibility requirements was that the victim’s conduct did not contribute to his injury.  I have never had the compensation fund raise the issue of comparative negligence as being a non-qualifying factor.

The other area where there can be a potential problem in qualifying for victim’s compensation is prior criminal history. Florida Statute § 776.08 outlines what is considered to be a “forcible felony”. It includes treason, murder, manslaughter, sexual battery, carjacking, home invasion robbery, robbery, burglary, arson, kidnapping, aggravated assault, aggravated battery, aggravated stalking, aircraft piracy, unlawful throwing, placing or discharging of a destructive device or bomb, and the catch all any other felony which involves the use or threat of physical force or violence against any individual.

In determining whether a crime constitutes a “forcible felony” you only consider the statutory elements of the offense, regardless of the particular facts or circumstances involved. In State v. Hearns, 961 So.2d 211 (Fla. 2007), the Florida Supreme Court was asked to determine whether battery on a law enforcement officer is a “forcible felony”. The Third DCA had held that battery on a law enforcement officer could be committed either through an unwanted touching or by causing bodily harm. Consequently, it could be held to be a forcible felony depending on the facts of the case.

The Supreme Court disagreed holding that in determining whether an offense is a “forcible felony” within the meaning of F.S. §776.08, the fact that any felony “may sometimes” or even “frequently does” involve violence is not determinative. The felony must actually involve the use or threat of physical force or violence. Consequently, if such conduct is not a necessary element of the crime, then the crime is not a forcible felony within the meaning of F.S. §776.08.

Once you have qualified your client for crime victim compensation you will receive a letter of eligibility even though no benefits may be currently due. Send your letter of eligibility to the no fault carrier as well as any health insurance carrier. The bureau provides a special notice of insurance waiver provision that you should include with your letter. However, it has been my experience that adjusters will argue that the twenty percent (20%) that is not paid by PIP is not a copayment. I refer them to the PIP statute, § 727.736(5)(a)(4) which states “If an insurer limits payment as authorized by subsection 1, (which refers to the 200% Medicare limitation) the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in the excess of such limits except for the amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy benefits”. Then tell them to bring it up with their legal department.

Out of state insurance companies who are not licensed to do business in Florida, HMOs and self-insurance plans are excluded from this waiver of copayments and deductibles.

Once No-Fault has been exhausted and assuming there is no other health insurance, you provide the notice of exhaustion letter to victim’s compensation and they will pay medical bills. They will pay fifty percent (50%) of the usual and customary charge up to $7,500.00. If the outstanding bills you submit exceed the $7,500.00 limit, victims’ comp will pay less than 50% in an effort to pay all providers something.

Victims’ comp will pay bills for medical treatment, dental, psychological or mental health counseling, chiropractic care, physical rehabilitation, non-medical remedial care, treatment rendered in accordance with a religious method of healing or for other services necessary as a result of the injury (a rather broad category). I believe there is a $2,500.00 limit on mental health counseling which is included in the $7,500.00 cap.

If the client pays the twenty percent (20%) PIP copay, which can happen when benefits are exhausted before the carrier gets the letter of eligibility, victims’ compensation will reimburse your client. They will also reimburse at one hundred percent (100%) for prescription medications. Victims’ comp will also reimburse the client for out-of-pocket expenses or for payments the client made for medical care, nonmedical remedial care, psychological counseling, or other necessary treatment/expense. They pay to replace glasses, dentures and prosthetic devices. In addition to providers, they will pay governmental entities such as EMS. They will only pay the provider. If the account has been turned over to collections, they will not pay the collection agency.

Now here is the true benefit to having victims’ compensation pay the bills. If the provider accepts payment it is considered payment in full. There is a Victim Compensation Payment Receipt which accompanies the check.  It states that “By Florida law your acceptance of this payment represents payment in full and prohibits you from further collection on this account”. It is better to have victims’ comp pay the bills rather than having the client seek reimbursement since the client’s payment will not result in the statutory write off.

It should be noted that the provider does not have to accept payment from victims’ compensation and can return the check.  If they do so victims’ compensation will then send the money to the client and the client will remain responsible for the balance of the bill.

The next benefit that victim’s compensation provides is lost wages. They will pay sixty six 2/3 percent (66.66 %) of lost wages for up to a year. Routinely they will pay one week of lost wages without a doctor’s excuse, but they require one thereafter. If No-Fault pays sixty percent (60%) of the wages, you are still entitled to an additional six percent (6%). The limit on lost wages is separate from the limit on medical bills and is $15,000.00.

The statute states that in order to recover lost wages the claimant must be working at the time of the accident.

Inability to work can be based on depression as well as being physically unable to work.

Loss of support is also available for the spouse and dependents of a deceased victim.

The forth economic benefit from victims’ compensation is disability benefits. If your physician assigns an impairment rating under either the Florida Impairment Guidelines or the AMA Guidelines, victims’ compensation provides a cash award. It can range from $50 to $25,000.  There is a form for your doctor to complete called the Treatment Disability Statement.  Victim’s comp will plug the numbers into a computer to determine your award.

The total compensation one can receive from medical, wages, and disability is capped at $25,000.00

If it is a catastrophic injury, the award is $30,000.00. A catastrophic injury is defined F.S. § 960.03 as a permanent impairment constituted by spinal cord injury involving severe paralysis, amputation, severe brain or closed head injury, 2^nd or 3^rd degree burns involving 25% of the body or 3^rd degree burns on 5% of the face and hands, blindness or any other injury what would qualify for Social Security Disability. The statute states that the total compensation available from medical, wages and catastrophic benefits is capped at $50,000.00; however Victims’ Comp is currently recognizing a $30,000.00 total cap.

The final benefit available which related to Personal Injury is vocation rehabilitation. This is a free service that is paid with 80% Federal funds and 20% State funds.

If you are able to settle your personal injury claim, victims comp is entitled to be reimbursed. They will reduce their lien for pro rata costs and attorney fees, but they will not further reduce based on equitable considerations unless all providers and the attorney are also reducing.

Use the Victims Compensation program. It will enable you to get income, pay your bills, and keep your head above water until the case can be settled.