Well what seemed liked a minor change to the Q-rules of Workers’ Comp Procedure back in February 2022 is now leading to some issues on paying settlements. The rule change simply stated that a JCC did not have to approve the costs a claimant was paying their attorney, only the amount of the attorney fees. The intent was so that the JCC did not have to investigate every cost being alleged by the claimant’s attorney, to make settlements run smoother.
However, now some JCC’s are interpreting that rule change to mean that their order approving the settlement (AKA the Order Approving Amount of Attorney Fees) does not need to mention the costs at all. The rules (below) state the Motion for Approval we file shall contain the amount of costs, but we are getting orders back that do not match the Motion.
For example, if we settle a claim for $10,000, the breakdown could be fees of $2,500, costs of $500 and $7,000 to the claimant. The order from the JCC now may leave out the costs, and simply state $2,500 fee and $7,000 to the claimant. No mention of the $500.
Be careful, we still owe the costs and we have an enforceable agreement. A claimant attorney could file a Motion to Enforce the agreement and seek additional attorney fees. As you know we always send you a breakdown of the settlement prior to filing, but the final order may not match. Make sure to follow the check request we sent and not the order.
Just something for everyone to be aware of as a potential issue.
The new rule is below.
(2) Settlements under section 440.20(11)(c), (d), and (e), F.S.
(a) When a motion for approval of attorney’s fees and child support allocation is filed pursuant to section 440.20(11)(c), (d), or (e), F.S., it shall be signed by the claimant and the claimant’s attorney, furnished to all other parties, and contain:
1. A statement that the parties have reached a total settlement of the case;
2. The total monetary amount of the settlement payable by the employer/carrier;
3. The amount of attorney’s fees and costs agreed to and payable by the claimant pursuant to the contract of representation and the net settlement proceeds to be disbursed to the claimant;
4. The amount of child support arrearages, if any, owed by the claimant, together with the amount of child support allocation the claimant requests be deducted from the settlement proceeds, after fees and costs, and the attorney responsible to remit the same to the appropriate child support repository;
5. An attorney’s fee data sheet setting forth the benefits obtained by claimant’s counsel and the value of those benefits, and, depending upon the date of accident and the type of benefit involved, should the claimant’s attorney seek a fee in excess of the statutory percentage, an affidavit specifying the particular statutory criteria forming the basis for the variance;
6. A status statement from the OJCC or such other source as designated by the Deputy Chief Judge regarding any child support arrearage balance according to the Department of Revenue records, and a status statement regarding any child support arrearage balance according to the Florida Clerks of the Circuit and County Courts, as to whether the claimant has an arrearage or owes past due child support and, if so, the amount thereof; a sworn statement by the employee that all existing child support obligations have been disclosed in the joint petition; and a letter from counsel stating that the carrier will issue a check in the amount of the arrearage and/or past due child support or such other amount to be approved by the judge or that claimant’s counsel will deposit the settlement proceeds in a trust account and will issue a check in the amount of the arrearage and/or past due child support or such other amount to be approved by the judge and that the check will be sent to the Department of Revenue or the Clerk of the Circuit and County Courts, Central Depository;
7. If the claimant is not a Florida resident, or was not a Florida resident on the date of accident, the judge may require the substantial equivalent of the status statements in subparagraph (2)(a)6. from the equivalent authorities in the state or county of residence at either the time of settlement or on the date of accident; and
8. The OJCC may obtain child support arrearage data from the Florida Department of Revenue and the Clerk of the various Circuit and County Courts. The OJCC shall list the counties for which such information is available to the OJCC on the internet. For those agencies/counties listed, parties may obtain child support arrearage information through written inquiry to the OJCC.
(3) No hearing shall be held except as deemed necessary by the judge.
(4) Settlement approval when more than one current support order exists. When more than one current support order exists, the judge may approve a proposed settlement only if:
(a) It provides for an equitable share of settlement proceeds; and
(b) The allocation shall be prorated in accord with section 61.1301(4)(c), F.S.
(5) Any order approving a joint petition or settlement agreement need not approve costs paid by the claimant.
Rulemaking Authority 61.14(8)(a), 440.45(1)(a), (4) FS. Law Implemented 61.14(8)(a), 440.105(3)(c), 440.20(11), 440.34, 440.345, 440.45(1)(a), (4), (5) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 2-28-13, 11-10-14, 02-14-22.
Morgan Indek | Managing Partner