Michael Moline
The House Insurance & Banking Subcommittee voted Tuesday narrowly against requiring workers to pay their own attorney fees in disputes over benefits.
The tally went 8-7 against an amendment by Republican Jay Fant to scrap most of a proposed committee bill addressing escalating workers’ compensation premiums.
The panel proceeded to approve the underlying bill, 14-1. Fant was the “no” vote.
Even members who voted for the amendment said they would support the bill in hopes of making improvements later.
Fant’s language would have focused on the attorney fee angle, chiefly by requiring workers and carriers to pay their own litigation costs.
That’s “the elephant in the room,” he said.
“The business pay the fees for their lawyers. The claimant pays theirs,” Fant said.
Chairman Danny Burgess spoke against the amendment, saying he doubted the courts would consider it fair to require injured employees, many unable to draw paychecks, to go against wealthy insurance companies.
Fant insisted the main thing driving workers’ compensation insurance rates up was a Florida Supreme Court ruling striking down mandatory attorney fee caps in these cases.
“If we don’t go the floor (of the House) with something that addressed the heart of the matter, everybody at home will say, ‘You didn’t do your job,’ ” Fant said.
The amendment tended to draw support from business and insurance interests, and opposition from trial attorneys and union representatives. The bill itself, PCB IBS 17-01, managed to bring the same opponents.
Additionally, hospital representatives thought the bill’s medical reimbursement provisions too meager.
Burgess has said the draft bill is intended to meet the Supreme Court’s objections to limits on attorney fees, and on temporary lost-wage benefits for claimants still too injured to work but not yet eligible for permanent disability.
“We had to come to the table and find a solution, and we did,” Burgess said.
Those rulings are widely blamed for the 14.5 percent increase in premiums that began to take effect in December.
The bill also targets cost-drivers including attorney fees — the Supreme Court ruling on that target is responsible for an estimated 10 percent of the rate hike.
The bill would retain the state’s statutory fee schedule, which is tied to the benefits received. However, workers could directly pay their attorneys — something not allowed now.
Judges of compensation claims would be allowed to award hourly fees when the statutory fee would be less than 40 percent or more than 125 percent of the customary rate in that jurisdiction.
If that doesn’t cover all the fees workers agreed to in their retainer agreements, they will pay the balance out of pocket. These agreements would be filed with the case judges, but they wouldn’t be empowered to approve or disapprove.
The system relies on carriers to pay workers’ lawyers, but the bill would make the workers responsible for any legal fees generated before they file a petition for benefits before a judge.
Eligibility for temporary wage replacement in chronic cases would be extended from the current 140 weeks to 260.
Burgess said the bill could reduce premiums by 5 percent or more.
Companion legislation in the Senate would require carriers to set their own rates — to foster competition on price. The House bill would leave the National Council on Compensation alone to recommend rates for most carriers, but companies could depart from the approved rate by 5 percent in either direction.
The bill would require governors to fill vacancies on Three Member Panel — a state board, comprising Insurance Commissioner David Altmaier and representatives of employers and employees. Gov. Rick Scott has not filled the workers’ seat.
The governor would have 45 days to act — otherwise, the appointment goes to the state’s chief financial officer.
The bill would link reimbursement rates for medical providers to what Medicare pays for procedures. Existing rates will apply if Medicare doesn’t cover a procedure.
And the bill would require carriers to either approve or deny benefits within a reasonable time.
A separate bill, PCS for HB 1107, would shield workers’ sensitive personal information from public disclosure, in the interests of privacy but also prevent prospecting by lawyers. It passed, unanimously.
“Attorneys will not be able to affirmatively solicit” injured workers to retain them,” Burgess said.
Richard Chait, chairman of the workers’ comp section of the Florida Justice Association, issued a written statement following the vote.
“We are always hopeful when the legislative process moves a step closer to progress on this important issue, as the House Insurance and Banking Subcommittee did today,” he said. “Workers’ compensation must serve the interests of businesses and their workers who get injured on the job — not an insurance industry that takes advantage of the system to better line its own pockets.”
