Michael Moline
The House workers’ compensation package survived hearings before the Commerce Committee Thursday, including business-friendly amendments that would leave injured workers paying their own attorney fees if they pursue meritless claims.
One by one, the panel gave voice approval to three amendments offered by House Insurance & Banking chairman Danny Burgess, who has managed the underlying bill’s progress.
The final vote on the bill was 20-14. The only Democrat voting “Yes” was Richard Stark.
“I believe this bill does strike a balance between constitutionality and a strong reform,” Burgess said. “I fought tooth and nail to make sure we had a constitutional proposal.”
Tampa Democrat Sean Shaw wasn’t sold.
“I hope we get to a place that’s fair and balanced, but right now I think we’re way out of whack,” he said before voting “No.”
The committee defeated on a voice vote an amendment by Broward Democrat Evan Jenne that would have required attorney fees to be “reasonable.”
He argued that workers might be unable to retain counsel at the levels the legislation contemplates in expensive legal markets including Miami, Fort Lauderdale, and Orlando.
“There’s got to be some incentive to get competent counsel in these cases,” argued Joe Geller, another Democrat.
The panel also voted down an amendment, by Shaw, to make Florida insurers file premium requests with state regulators separately, to compete on price. Most now file a common rate calculated by the National Coalition on Compensation Insurance, or NCCI.
Insurance interests and their business allies spoke in favor of Burgess’ approach. Trial attorneys, medical providers, and unions argued the lawyer fee language was unfair to injured workers who are supposed to be parties to the system’s “grand bargain” with employers.
As approved, under HB 7085 attorneys filing benefits challenges would have to stipulate to the time they have put into a case before trial, to prevent bill padding.
Attorney fees would not be available unless the worker wins — and he or she would be stuck with the legal costs of pursuing losing claims. The attorney would have to notify the worker in writing of that possibility.
Paul Anderson, of the Florida Justice Association, criticized the provision.
“It shifts the obligation for payment of fees in great part to the injured worker,” Anderson said, and likely would invite constitutional challenges.
Insurers would have 45 days to review claims, so they can approve any they think have merit and avoid litigation.
They could ask a second judge in another jurisdiction to review a fee award.
The Florida Supreme Court last year struck down the state’s mandatory fee schedule in these cases, linking attorney payments to benefits won, as an unconstitutional bar to the right of access to the courts.
Critics of the ruling blame it for most of the 14.5 percent premium increase that began to take effect in December.
The amendments would retain the fee schedule, but allow departures amounting to no more than $150 per billable hour, based on what carriers pay their defense attorneys.
The revisions also contain language requiring preauthorization of medical care, another way to control costs. Additionally, insurers could depart from the average rates approved by the Office of Insurance Regulation by 5 percent in either direction.
NCCI had estimated the underlying bill could mean at least a 5 percent reduction. That figure doesn’t account for the amendments adopted Thursday.
Bowing to a separate Supreme Court ruling, the amendments would extend total disability payments to 260 weeks for workers yet to reach maximum medical improvement, with a possible 26-week extension to fill a coverage gap.
Following the vote, Florida Insurance Council president Cecil Pearce issued a written statement praising the “real progress towards addressing attorney fee-driven litigation, the main cost driver behind the 14.5 percent workers’ compensation rate increase.”
By contrast, he said, the Senate proposal, SB 1582, “passed the Senate Banking and Insurance Committee earlier this week with almost no time for testimony or debate. As a result, committee members never had a chance to hear that SB 1582 cements in place the very reason every business now pays more for their workers’ compensation coverage.”
One comment
Mark L. Zientz
April 7, 2017 at 9:56 am
The Daily Business Review, 3/1/2017, reported that paraprofessionals at lawfirms around the state are billed out at fees ranging from $50.00 per hour to $235.00 per hour for non-contingent fee clients. $150.00 per hour for a board certified attorney with 40+ years of excperience and only if you win and only of the fee schedule would give you substantially less per hour makes for the the same or worse situation for injured workers to be represented by competent counsel as was the case with Castellanos. The representatives know that such a law will eventually be ruled unconstitutional either in state or federal court leaving carriers with more unfunded liabilities, but that is what AIF pays them to do. The only difference between the boy scouts and the Florida legislature is that the boy scouts have adult leadership.
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