Florida Senate - 2009 SB 2072
By Senator Richter
37-01694A-09 20092072__
1 A bill to be entitled
2 An act relating to attorney’s fees in workers'
3 compensation cases; amending s. 440.34, F.S.;
4 clarifying requirements for the payment of fees and
5 costs under a retainer agreement; specifying the
6 amount of attorney's fees which a claimant is entitled
7 to recover from a carrier or employer; providing an
8 effective date.
9
10 Be It Enacted by the Legislature of the State of Florida:
11
12 Section 1. Section 440.34, Florida Statutes, is amended to
13 read:
14 440.34 Attorney's fees; costs.—
15 (1) A fee, gratuity, or other consideration may not be paid
16 for a claimant in connection with any proceedings arising under
17 this chapter, unless approved as reasonable by the judge of
18 compensation claims or court having jurisdiction over such
19 proceedings. Any attorney's fee approved by a judge of
20 compensation claims for benefits secured on behalf of a claimant
21 must equal to 20 percent of the first $5,000 of the amount of
22 the benefits secured, 15 percent of the next $5,000 of the
23 amount of the benefits secured, 10 percent of the remaining
24 amount of the benefits secured to be provided during the first
25 10 years after the date the claim is filed, and 5 percent of the
26 benefits secured after 10 years. The judge of compensation
27 claims shall not approve a compensation order, a joint
28 stipulation for lump-sum settlement, a stipulation or agreement
29 between a claimant and his or her attorney, or any other
30 agreement related to benefits under this chapter which that
31 provides for an attorney's fee in excess of the amount permitted
32 by this section. The judge of compensation claims is not
33 required to approve any retainer agreement between the claimant
34 and his or her attorney. The retainer agreement as to fees and
35 costs may not be for compensation in excess of the amount
36 allowed under this subsection or subsection (7) section.
37 (2) In awarding a claimant's attorney's fee, the judge of
38 compensation claims shall consider only those benefits secured
39 by the attorney. An attorney is not entitled to attorney's fees
40 for representation in any issue that was ripe, due, and owing
41 and that reasonably could have been addressed, but was not
42 addressed, during the pendency of other issues for the same
43 injury. The amount, statutory basis, and type of benefits
44 obtained through legal representation shall be listed on all
45 attorney's fees awarded by the judge of compensation claims. For
46 purposes of this section, the term “benefits secured” does not
47 include future medical benefits to be provided on any date more
48 than 5 years after the date the claim is filed. In the event an
49 offer to settle an issue pending before a judge of compensation
50 claims, including attorney's fees as provided for in this
51 section, is communicated in writing to the claimant or the
52 claimant's attorney at least 30 days prior to the trial date on
53 such issue, for purposes of calculating the amount of attorney's
54 fees to be taxed against the employer or carrier, the term
55 “benefits secured” shall be deemed to include only that amount
56 awarded to the claimant above the amount specified in the offer
57 to settle. If multiple issues are pending before the judge of
58 compensation claims, said offer of settlement shall address each
59 issue pending and shall state explicitly whether or not the
60 offer on each issue is severable. The written offer shall also
61 unequivocally state whether or not it includes medical witness
62 fees and expenses and all other costs associated with the claim.
63 (3) If any party should prevail in any proceedings before a
64 judge of compensation claims or court, there shall be taxed
65 against the nonprevailing party the reasonable costs of such
66 proceedings, not to include attorney's fees. A claimant is shall
67 be responsible for the payment of her or his own attorney's
68 fees, except that a claimant is shall be entitled to recover an
69 a reasonable attorney's fee in an amount equal to the amount
70 provided for in subsection (1) or subsection (7) from a carrier
71 or employer:
72 (a) Against whom she or he successfully asserts a petition
73 for medical benefits only, if the claimant has not filed or is
74 not entitled to file at such time a claim for disability,
75 permanent impairment, wage-loss, or death benefits, arising out
76 of the same accident;
77 (b) In any case in which the employer or carrier files a
78 response to petition denying benefits with the Office of the
79 Judges of Compensation Claims and the injured person has
80 employed an attorney in the successful prosecution of the
81 petition;
82 (c) In a proceeding in which a carrier or employer denies
83 that an accident occurred for which compensation benefits are
84 payable, and the claimant prevails on the issue of
85 compensability; or
86 (d) In cases where the claimant successfully prevails in
87 proceedings filed under s. 440.24 or s. 440.28.
88
89 Regardless of the date benefits were initially requested,
90 attorney's fees shall not attach under this subsection until 30
91 days after the date the carrier or employer, if self-insured,
92 receives the petition.
93 (4) In such cases in which the claimant is responsible for
94 the payment of her or his own attorney's fees, such fees are a
95 lien upon compensation payable to the claimant, notwithstanding
96 s. 440.22.
97 (5) If any proceedings are had for review of any claim,
98 award, or compensation order before any court, the court may
99 award the injured employee or dependent an attorney's fee to be
100 paid by the employer or carrier, in its discretion, which shall
101 be paid as the court may direct.
102 (6) A judge of compensation claims may not enter an order
103 approving the contents of a retainer agreement that permits
104 placing the escrowing of any portion of the employee's
105 compensation into an escrow account until benefits have been
106 secured.
107 (7) If an attorney's fee is owed under paragraph (3)(a),
108 the judge of compensation claims may approve an alternative
109 attorney's fee not to exceed $1,500 only once per accident,
110 based on a maximum hourly rate of $150 per hour, if the judge of
111 compensation claims expressly finds that the attorney's fee
112 amount provided for in subsection (1), based on benefits
113 secured, fails to fairly compensate the attorney for disputed
114 medical-only claims as provided in paragraph (3)(a) and the
115 circumstances of the particular case warrant such action.
116 Section 2. This act shall take effect July 1, 2009.