SENATE AMENDMENT
    Bill No. HB 1837, 2nd Eng.
    Amendment No. ___   Barcode 780294
                            CHAMBER ACTION
              Senate                               House
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       05/01/2003 04:02 PM         .                    
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11  Senator Alexander moved the following amendment:
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13         Senate Amendment 
14         On lines 4499-4597, delete those lines
15  
16  and insert:  
17         Section 26.  Section 440.34, Florida Statutes, is
18  amended to read:
19         440.34  Attorney's fees; costs.--
20         (1)  A fee, gratuity, or other consideration may not be
21  paid for benefits secured services rendered for a claimant in
22  connection with any proceedings arising under this chapter,
23  unless approved as reasonable by the judge of compensation
24  claims or court having jurisdiction over such proceedings. For
25  purposes of this section, the term "benefits secured" shall
26  reflect the following: Except as provided by this section
27  subsection, any attorney's fee approved by a judge of
28  compensation claims for benefits secured for services rendered
29  to a claimant shall be must equal to 20 percent of the first
30  $5,000 of the amount of the benefits secured, whether ordered
31  or agreed to by the parties, and 15 percent of the next $5,000
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    2:58 PM   05/01/03                                h1837b-1728h

SENATE AMENDMENT Bill No. HB 1837, 2nd Eng. Amendment No. ___ Barcode 780294 1 of the amount of the benefits secured, 10 percent of the 2 remaining amount of the benefits secured to be provided during 3 the first 10 years after the date the claim is filed, and 5 4 percent of the benefits secured after 10 years. In the 5 alternative However, the judge of compensation claims may 6 approve an attorney's fee that may not exceed $2,500, based on 7 a maximum hourly rate of $150 per hour, if the judge of 8 compensation claims expressly finds that the fee, based upon 9 the total benefits secured, fails to fairly compensate the 10 attorney and the benefits secured are less than $10,000. In a 11 proceeding in which a carrier or employer denies that an 12 injury occurred for which compensation benefits are payable 13 and the claimant prevails on the issue of compensability, in 14 lieu of an attorney's fee equal to 15 percent of the benefits 15 secured, the judge of compensation claims may award an 16 attorney's fee that may not exceed $2,500, based on a maximum 17 hourly rate of $150 per hour, if the judge of compensation 18 claims expressly finds that the attorney's fee, based on the 19 benefits secured, fails to fairly compensate the attorney and 20 shall consider the following factors in each case and may 21 increase or decrease the attorney's fee if, in her or his 22 judgment, the circumstances of the particular case warrant 23 such action. The judge of compensation claims may not approve 24 a compensation order, a joint stipulation for a lump-sum 25 settlement, a stipulation or agreement between a claimant and 26 his or her attorney, or any other agreement related to 27 benefits under this chapter which provides for an attorney's 28 fee in excess of the amount permitted by this section. An 29 attorney's fee may not be due and does not begin to accrue for 30 a proceeding on medical issues until the peer review panel has 31 issued its initial adjudication of the issue.: 2 2:58 PM 05/01/03 h1837b-1728h
SENATE AMENDMENT Bill No. HB 1837, 2nd Eng. Amendment No. ___ Barcode 780294 1 (a) The time and labor required, the novelty and 2 difficulty of the questions involved, and the skill requisite 3 to perform the legal service properly. 4 (b) The fee customarily charged in the locality for 5 similar legal services. 6 (c) The amount involved in the controversy and the 7 benefits resulting to the claimant. 8 (d) The time limitation imposed by the claimant or the 9 circumstances. 10 (e) The experience, reputation, and ability of the 11 lawyer or lawyers performing services. 12 (f) The contingency or certainty of a fee. 13 (2) In awarding a reasonable claimant's attorney's 14 fee, the judge of compensation claims shall consider only 15 those benefits secured by the attorney to the claimant that 16 the attorney is responsible for securing. An attorney is not 17 entitled to attorney's fees for representation in any issue 18 that was ripe, due, and owing and that reasonably could have 19 been addressed during the pendency of other issues for the 20 same injury. The amount, statutory basis, and type of benefits 21 obtained through legal representation shall be listed on all 22 attorney's fees awarded by the judge of compensation claims. 23 For purposes of this section, the term "benefits secured" 24 means benefits obtained as a result of the claimant's 25 attorney's legal services rendered in connection with the 26 claim for benefits. However, such term does not include future 27 medical benefits to be provided on any date more than 5 years 28 after the date the claim is filed. If an offer to settle an 29 issue pending before a judge of compensation claims is 30 communicated in writing to the claimant or the claimant's 31 attorney at least 30 days prior to the trial date on such 3 2:58 PM 05/01/03 h1837b-1728h
SENATE AMENDMENT Bill No. HB 1837, 2nd Eng. Amendment No. ___ Barcode 780294 1 issue, benefits secured shall be only that amount awarded 2 above that specified in the offer to settle. If multiple 3 issues are pending before the judge of compensation claims, 4 the offer of settlement shall address each issue pending, and 5 shall state explicitly whether or not the offer on each issue 6 is severable. The written offer shall also unequivocally state 7 whether or not it includes medical witness fees and expenses, 8 and all other costs associated with the claim. 9 (3) If any party the claimant should prevail in any 10 proceedings before a judge of compensation claims or court, 11 there shall be taxed against the nonprevailing party employer 12 the reasonable costs of such proceedings, not to include the 13 attorney's fees of the claimant. A claimant shall be 14 responsible for the payment of her or his own attorney's fees, 15 except that a claimant shall be entitled to recover a 16 reasonable attorney's fee from a carrier or employer: 17 (a) Against whom she or he successfully asserts a 18 request for reconsideration petition for medical benefits 19 only, if the claimant has not filed or is not entitled to file 20 at such time a claim for disability, permanent impairment, 21 wage-loss, or death benefits, arising out of the same 22 accident; 23 (b) In any case in which the employer or carrier files 24 a response to petition denying benefits with the Office of the 25 Judges of Compensation Claims and the injured person has 26 employed an attorney in the successful prosecution of the 27 petition, subject to the restrictions on proceedings for peer 28 review initial adjudication upon which no fees shall be due; 29 (c) In a proceeding in which a carrier or employer 30 denies that an accident occurred for which compensation 31 benefits are payable, and the claimant prevails on the issue 4 2:58 PM 05/01/03 h1837b-1728h
SENATE AMENDMENT Bill No. HB 1837, 2nd Eng. Amendment No. ___ Barcode 780294 1 of compensability; or 2 (d) In cases where the claimant successfully prevails 3 in proceedings filed under s. 440.24 or s. 440.28. 4 5 Regardless of the date benefits were initially requested, 6 attorney's fees shall not attach under this subsection until 7 30 days after the date the carrier or employer, if 8 self-insured, receives the petition. In applying the factors 9 set forth in subsection (1) to cases arising under paragraphs 10 (a), (b), (c), and (d), the judge of compensation claims must 11 only consider only such benefits and the time reasonably spent 12 in obtaining them as were secured for the claimant within the 13 scope of paragraphs (a), (b), (c), and (d). 14 (4) In such cases in which the claimant is responsible 15 for the payment of her or his own attorney's fees, such fees 16 are a lien upon compensation payable to the claimant, 17 notwithstanding s. 440.22. 18 (5) If any proceedings are had for review of any 19 claim, award, or compensation order before any court, the 20 court may award the injured employee or dependent an 21 attorney's fee to be paid by the employer or carrier, in its 22 discretion, which shall be paid as the court may direct. 23 (6) Retainer agreements or contracts of representation 24 may not be submitted to a judge of compensation claims for 25 approval except in conjunction with an appropriate motion for 26 approval of a specific fee following the securing of a 27 specific benefit or benefits. A judge of compensation claims 28 may not prospectively approve a contract of representation 29 prior to the securing of the benefit. A judge of compensation 30 claims may not enter an order approving the contents of a 31 retainer agreement that permits the escrowing of any portion 5 2:58 PM 05/01/03 h1837b-1728h
SENATE AMENDMENT Bill No. HB 1837, 2nd Eng. Amendment No. ___ Barcode 780294 1 of the employee's compensation until benefits have been 2 secured. 3 (7) The judge of compensation claims shall not approve 4 a compensation order, a joint stipulation for a lump-sum 5 settlement, a stipulation or agreement between a claimant and 6 his or her attorney, or any other agreement related to 7 benefits under this chapter which provides for an attorney's 8 fee in excess of the amount permitted by this section. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 6 2:58 PM 05/01/03 h1837b-1728h