As the chair-elect of the Workers’ Compensation Section of the Florida Bar, I believe it is important to correct misconceptions and misstatements made by the head of the Florida Chamber regarding Florida’s workers’ compensation system and the attorneys who represent injured Floridians.
In a recent column, Mark Wilson and the Chamber suggest the workers’ compensation rate increase approved by Florida’s new Insurance Commissioner benefits only “billboard trial lawyers.”
Nothing could be further from the truth.
The commissioner approved a ridiculous 14.5 percent increase in workers’ comp rates. It could have been worse — the insurance industry tried to stick businesses with an increase one-third higher.
The insurance industry blames the rate increase on the Florida Supreme Court’s recent Castellanos decision, which threw out unconstitutional caps on attorney fees.
But NCCI, the rating arm of the insurance industry, has acknowledged the court decision has very little direct impact on rates.
The bulk of what the insurance industry sought in a rate increase was, by NCCI’s own admission, related to the fact that injured Floridians who retain attorneys receive more in benefits than workers who do not retain counsel.
Yet the decision in Castellanos did not increase the pool of benefits available to injured Floridians. What legal representation does is hold an insurance company’s feet to the fire. It forces them to comply with the law and provide injured workers medical care and lost wage benefits that are already due — the same benefits that profit-first insurers routinely deny to injured workers who are not represented by an attorney.
Wilson and the Chamber would have Florida return to the system enacted in 2003. While the reforms enacted that year generated rate reductions, let’s not pretend these reforms did anything to assure injured Floridians would receive prompt medical care or lost wage benefits.
The exact opposite happened.
Let’s also not pretend that the caps on attorney fees adopted in 2003 were reasonable. The Chamber supported the Florida Legislature removing the word “reasonable” from the fee statute in 2009. Finally, let’s not pretend that attorneys accept workers’ compensation cases to “hit the jackpot” on fee awards; employers and insurance carriers who furnish the benefits due under the statute NEVER pay attorneys’ fees — and even when they wrongfully deny benefits, the statute gives them a 30-day safe harbor to provide the benefits and still avoid paying attorney fees.
The Chamber points out correctly that the attorney who represented Mr. Castellanos ultimately earned a fee many times the value of the benefits the carrier refused to provide.
That begs the question of why the insurance company denied him the benefits in the first place — and why they then fought so hard to avoid providing the benefits.
Insurance executives may not understand, but an $800 benefit means everything to a family that lives from paycheck to paycheck.
When premium rates fell more than 60 percent following the 2003 reforms, the Chamber advocated legislation that now allows insurance companies to keep “excess profits” instead of returning those profits to Florida businesses.
Catering to the insurance industry that is one of its biggest funding sources, the Chamber opposes insurance reform that would help businesses across the state by creating competition among carriers on rates and allowing businesses a choice on workers’ compensation rates.
Rather than work toward a comprehensive solution, the Florida Chamber chooses to simply demonize attorneys. If the Chamber were truly interested in the welfare of injured workers and in assuring that these workers receive access to quality care and the court system, it would not deny them the opportunity to hire attorneys at reasonable fees.
What Florida needs is fair and balanced reform — not knee-jerk “reform” that plays on stereotypes of attorneys while taking advantage of the very workers who help businesses succeed.
Paul M. Anderson serves as chair-elect of the Florida Bar Workers’ Compensation Section.