Ok, I have now had the chance to read the decision and digest it a bit. 

First, let’s start with this, the sky has not fallen, it’s not the end of the world.  We have to adapt to a new way of handling and defending claims to protect our clients and employers.  Everyone needs to take a deep breathe….

About the decision:

The Court starts with the premise that the WC system has becoming increasingly complex, and a claimant often needs an attorney to “navigate the thicket”.  The essential reason the Court found the statute in violation of both the Florida and the U.S. Constitution was that the  statute created an irrebuttable presumption, neither an injured worker nor an employer could challenge the reasonableness of a fee that was too high or too low.

The Court then ties those both together; a claimant needs an attorney, a claimant cannot hire an attorney unless the fees are reasonable, and without an attorney the statute does not accomplish the legislative intent of providing benefits:

“It is undeniable that without the right to an attorney with a reasonable fee, the workers’ compensation law can no longer “assure the quick and efficient delivery of disability and medical benefits to an injured worker,” as is the stated legislative intent in section 440.015, Florida Statutes (2009), nor can it provide workers with “full medical care and wage-loss payments for total or partial disability regardless of fault and without the delay and uncertainty of tort litigation.”

The Court points out that from 1941 to 2009 the statute provided for reasonable attorney fees.

Where are we now:

Until the Fla Legislature re-writes the law, it reverts back to the last constitutional version of the statute section, which was the 10/1/2003 law.   It is identical to the current 440.34, with the exception that it contains the word “reasonable”.  A JCC can only approve a “reasonable” fee. 

The starting point is the statutory guideline fee schedule.   A JCC must look to see if the guideline fee is reasonable, and what that means is based on old case, Lee Engineering, which was eventually made a part of prior statutes.  Here is the test for what is reasonable, taken from 1977 statute:

“ However, the judge of industrial claims shall consider the following factors in each case and may increase or decrease the attorney’s fee if in his judgment the circumstances of the particular case warrant such action:

(a) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.

(b) The likelihood, if apparent to the claimant, that the acceptance of the particular employment will

preclude employment of the lawyer by others or cause antagonisms with other clients.

(c) The fee customarily charged in the locality for similar legal services.

(d) The amount involved in the controversy and the benefits resulting to the claimant.

(e) The time limitation imposed by the claimant or the circumstances.

(f) The nature and length of the professional relationship with the claimant.

(g) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(h) The contingency or certainty of a fee.”

 

If the JCC finds the guideline fee is not reasonable based on the above, the claimant’s attorney receives a carrier paid fee, based on his or her hours.  In the past, hourly rates varied in the low $200’s to the mid $300’s, depending on venue and the attorney.

What claims does this affect:

All open claims.   If the claim has already settled, or has a settlement pending, it would not affect those.  If the SOL has expired or if a prior fee issue has been resolved, those would also be unaffected.

What can you do:

We all have to get tighter and more technical on our claims handling.   Small issues are the ones that wind up costing huge amounts in fees, such as AWW issues, unpaid medical bills, calculating waiting periods, etc…

Pick your battles, know the other side, know the Judges, know what you can and cannot win.

A fee does not become due unless a benefit is not provided within 30 days of the filing of a PFB.   The date it is filed with DOAH is usually imprinted on the bottom.  That should start your high alert status to investigate the issues and the benefits sought. 

Fee clocks continue to run until fee entitlement is stipulated to by the E/C.  If you owe a fee, agree so in writing, or they continue to earn fees.

Our firm has a CEU entitled “Avoiding Attorney Fee Exposure”, covering a lot of the common pitfalls and landmines.  Let me know if you would like us to come present.

We will get through this as a team, and we will adapt.  Not tonight though, I’m going to get a beer. 

Sincerely,

Morgan Indek | Partner