Michael Moline
The first blow landed Wednesday in an anticipated legislative battle over workers’ compensation, when state House member Cord Byrd of Neptune Beach filed legislation to make participation in the system optional.
The bill also would take on attorney fees, a major bone of contention for business leaders in the state. It would allow lawyers to accept payment outside the now-mandatory fee schedule in workers’ compensation disputes, permitting them and clients to freely negotiate payment.
Judges of compensation claims would no longer need to review attorney fees. And employers and carriers who failed to pay valid claims within 30 days would have to pay double the original amount.
Byrd, a freshman Republican attorney who represented the business side in workers’ compensation cases before switching to the plaintiffs’ side, said business owners can’t afford double-digit premium increases.
A 14.5 percent increase in those rates began to take effect on Dec. 1 and will roll out as businesses sign new policies or renew old ones during the next 12 months.
“Workers’ compensation in Florida has for too long been a one-size-fits-all proposition and the Florida Supreme Court’s decision to rewrite the statute has added expensive and confusing uncertainty for everyone involved — insurance carriers, employers, and employees,” Byrd said in a written statement.
He referred to a pair of high court rulings this year striking business-friendly reforms enacted in 2003 — chiefly, eliminating restrictions on attorney fees. The court said that language tying fees to benefits won was unconstitutional.
The Office of Insurance Regulation blamed that ruling for about 10 percent of the 14.5 percent premium hike.
The Florida Chamber of Commerce and Associated Industries of Florida formed separate task forces to seek a legislative fix. Those organizations have indicated they will unveil their own proposals later this month.
The chamber issued a written statement Wednesday indicating it would review Byrd’s ideas.
“The Florida Chamber maintains that the Florida Legislature must act to address increased attorney fees and costs in workers’ comp as a result of the Florida Supreme Court’s recent overreaching decisions,” the Chamber said. “We look forward to providing feedback from our members on this and the many other potential legislative solutions during the 2017 legislative session.”
“We appreciate Rep. Byrd’s efforts to fix workers compensation,” said Bill Herrle, Florida director for the National Federation of Independent Business, who is participating in AIF’s task force.
“Indeed, if attorneys fees are not fixed, small businesses will need a way to get out of a broken workers compensation system, so I guess he realized that his bill does not fix attorneys fees, and added an escape hatch for small businesses,” Herrle said.
“It’s truly an option of the very last resort, because it is fraught with greater liability exposure for uninsured small businesses and their customers,” he said.
For his own part, Byrd said that Texas maintains an optional workers’ compensation system and that about one-third of employers opt out.
In Florida, worker’s compensation is a no-fault system intended to provide medical help and lost wages without the time and expense of litigation.
“Choice is good,” Byrd said. “Those that wish to participate may, those who do not wish to participate are not required to.”
His bill would strike language making it a crime for attorneys to accept payment outside Florida’s statutory fee structure, and requiring compensation judges to approve all payments. Attorneys would be bound only by The Florida Bar’s Rules of Professional Conduct.
The penalty for missing the benefits payment deadline would apply both to represented and unrepresented claimants, Byrd said.
Byrd included a clause providing that if the courts strike down any element of Florida’s workers’ compensation code, the entire code would become void.
“The non-severability clause is premised on the belief that public policy must be made by the Legislature and cannot be allowed to be made by the court’s selectively delete provisions of an act that was passed in its entirety,” he said.
