Florida Senate - 2009                             CS for SB 2072
       
       
       
       By the Committee on Judiciary; and Senators Richter and Baker
       
       
       
       
       590-05202-09                                          20092072c1
    1                        A bill to be entitled                      
    2         An act relating to workers’ compensation; repealing s.
    3         440.105(3)(c), F.S., relating to the prohibition
    4         against a fee, consideration, or gratuity for an
    5         attorney or other person for certain services;
    6         amending s. 440.20, F.S.; requiring that a judge of
    7         compensation claims enter an order determining the
    8         portion of settlement proceeds to be allocated to
    9         child support arrearages; deleting the requirement
   10         that a judge of compensation claims approve the
   11         attorney’s fees paid by a claimant; deleting the
   12         requirement that parties to a settlement submit
   13         information or documentation to support the
   14         settlement; exempting settlement attorney’s fees from
   15         certain provisions of state law; limiting the amount
   16         of attorney’s fees paid by a claimant; requiring
   17         payment of a settlement within a specified time after
   18         a judge determines the portion of the settlement
   19         amount allocated to child support; amending s. 440.34,
   20         F.S.; providing that a claimant is responsible for the
   21         payment of his or her attorney’s fees; providing
   22         exceptions; specifying a schedule for the
   23         determination of attorney’s fees to be paid by a
   24         carrier or employer; requiring that a judge of
   25         compensation claims determine the amount of attorney’s
   26         fees unless the parties agree otherwise; deleting
   27         certain restrictions on the amount of attorney’s fees;
   28         deleting requirements relating to offers of
   29         settlement; preserving the right of a claimant to
   30         contract with an attorney for representation in
   31         connection with certain claims; prohibiting the
   32         recovery of attorney’s fees under certain
   33         circumstances; prohibiting the recoupment of certain
   34         attorney’s fees and costs by a carrier; prohibiting
   35         the inclusion of such fees or costs in any rate base
   36         or rate filing and the use of such fees or costs to
   37         justify a rate or rate change; providing an effective
   38         date.
   39  
   40  Be It Enacted by the Legislature of the State of Florida:
   41  
   42         Section 1. Paragraph (c) of subsection (3) of section
   43  440.105, Florida Statutes, is repealed.
   44         Section 2. Paragraph (c) of subsection (11) of section
   45  440.20, Florida Statutes, is amended to read:
   46         440.20 Time for payment of compensation and medical bills;
   47  penalties for late payment.—
   48         (11)
   49         (c) Notwithstanding s. 440.21(2), when a claimant is
   50  represented by counsel, the claimant may waive all rights to any
   51  and all benefits under this chapter by entering into a
   52  settlement agreement releasing the employer and the carrier from
   53  liability for workers’ compensation benefits in exchange for a
   54  lump-sum payment to the claimant. The settlement agreement
   55  requires approval by the judge of compensation claims shall
   56  enter an order determining what, if any, portion of the
   57  settlement proceeds must be allocated to satisfy any child
   58  support arrearage only as to the attorney’s fees paid to the
   59  claimant’s attorney by the claimant. The parties need not submit
   60  any information or documentation in support of the settlement,
   61  except as needed to justify the amount of the attorney’s fees.
   62  Neither the employer nor the carrier is responsible for any
   63  attorney’s fees relating to the settlement and release of claims
   64  under this section. Attorney’s fees related to a settlement and
   65  release of claims are not subject to the provisions of s.
   66  440.34(1). However, any attorney’s fees paid by a claimant may
   67  not exceed the amount allowable under the Supreme Court’s
   68  guidelines governing contingency fee agreements based upon the
   69  gross amount of the settlement. Payment of the lump-sum
   70  settlement amount must be made within 14 days after the date the
   71  judge of compensation claims mails the order determining the
   72  portion of the settlement proceeds, if any, that must be
   73  allocated to satisfy a child support arrearage approving the
   74  attorney’s fees. Any order entered by a judge of compensation
   75  claims approving the attorney’s fees as set out in the
   76  settlement under this subsection is not considered to be an
   77  award and is not subject to modification or review. The judge of
   78  compensation claims shall report these settlements to the Deputy
   79  Chief Judge in accordance with the requirements set forth in
   80  paragraphs (a) and (b). Settlements entered into under this
   81  subsection are valid and apply to all dates of accident.
   82         Section 3. Section 440.34, Florida Statutes, is amended to
   83  read:
   84         440.34 Attorney’s fees; costs.—
   85         (1) A claimant is responsible for the payment of his or her
   86  own attorney’s fees, except that he or she is entitled to
   87  recover attorney’s fees payable by a carrier or employer if:
   88         (a)A carrier or employer furnishes benefits claimed in a
   89  petition for benefits more than 30 days after the carrier or
   90  employer, if self-insured, receives the petition; or
   91         (b)The claimant successfully prevails in a proceeding
   92  filed under s. 440.24 or s. 440.28.
   93  
   94  The attorney’s fees a carrier or employer must pay under this
   95  subsection must equal 25 percent of the first $5,000 of the
   96  amount of the benefits secured, 20 percent of the next $5,000 of
   97  the amount of the benefits secured, and 15 percent of the
   98  remaining amount of the benefits secured. However, an attorney’s
   99  fee payable under this subsection may be increased up to the fee
  100  paid by the employer or carrier to the employer’s or carrier’s
  101  attorneys if it is determined that the employer or carrier
  102  engaged in a bad faith denial of benefits, unreasonably delayed
  103  furnishing benefits that were due and owing, or unreasonably
  104  continued or increased the expense of litigation.
  105         (2)Unless the parties agree otherwise, attorney’s fees
  106  payable under subsection (1) shall be determined A fee,
  107  gratuity, or other consideration may not be paid for a claimant
  108  in connection with any proceedings arising under this chapter,
  109  unless approved as reasonable by the judge of compensation
  110  claims or court having jurisdiction over such proceedings. Any
  111  attorney’s fee approved by a judge of compensation claims for
  112  benefits secured on behalf of a claimant must equal to 20
  113  percent of the first $5,000 of the amount of the benefits
  114  secured, 15 percent of the next $5,000 of the amount of the
  115  benefits secured, 10 percent of the remaining amount of the
  116  benefits secured to be provided during the first 10 years after
  117  the date the claim is filed, and 5 percent of the benefits
  118  secured after 10 years. The judge of compensation claims shall
  119  not approve a compensation order, a joint stipulation for lump
  120  sum settlement, a stipulation or agreement between a claimant
  121  and his or her attorney, or any other agreement related to
  122  benefits under this chapter that provides for an attorney’s fee
  123  in excess of the amount permitted by this section. The judge of
  124  compensation claims is not required to approve any retainer
  125  agreement between the claimant and his or her attorney. The
  126  retainer agreement as to fees and costs may not be for
  127  compensation in excess of the amount allowed under this section.
  128         (3)(2) In awarding a claimant’s attorney’s fee, the judge
  129  of compensation claims shall consider only those benefits
  130  secured by the attorney. An attorney is not entitled to
  131  attorney’s fees for representation in any issue that was ripe,
  132  due, and owing and that reasonably could have been addressed,
  133  but was not addressed, during the pendency of other issues for
  134  the same injury. The amount, statutory basis, and type of
  135  benefits obtained through legal representation shall be listed
  136  on all attorney’s fees awarded by the judge of compensation
  137  claims. For purposes of this section, the term “benefits
  138  secured” does not include future medical benefits to be provided
  139  on any date more than 5 years after the date the claim is filed.
  140  In the event an offer to settle an issue pending before a judge
  141  of compensation claims, including attorney’s fees as provided
  142  for in this section, is communicated in writing to the claimant
  143  or the claimant’s attorney at least 30 days prior to the trial
  144  date on such issue, for purposes of calculating the amount of
  145  attorney’s fees to be taxed against the employer or carrier, the
  146  term “benefits secured” shall be deemed to include only that
  147  amount awarded to the claimant above the amount specified in the
  148  offer to settle. If multiple issues are pending before the judge
  149  of compensation claims, said offer of settlement shall address
  150  each issue pending and shall state explicitly whether or not the
  151  offer on each issue is severable. The written offer shall also
  152  unequivocally state whether or not it includes medical witness
  153  fees and expenses and all other costs associated with the claim.
  154         (4)(3) If any party should prevail in any proceedings
  155  before a judge of compensation claims or court, there shall be
  156  taxed against the nonprevailing party the reasonable costs of
  157  such proceedings, not to include attorney’s fees. A claimant
  158  shall be responsible for the payment of her or his own
  159  attorney’s fees, except that a claimant shall be entitled to
  160  recover a reasonable attorney’s fee from a carrier or employer:
  161         (a)Against whom she or he successfully asserts a petition
  162  for medical benefits only, if the claimant has not filed or is
  163  not entitled to file at such time a claim for disability,
  164  permanent impairment, wage-loss, or death benefits, arising out
  165  of the same accident;
  166         (b)In any case in which the employer or carrier files a
  167  response to petition denying benefits with the Office of the
  168  Judges of Compensation Claims and the injured person has
  169  employed an attorney in the successful prosecution of the
  170  petition;
  171         (c)In a proceeding in which a carrier or employer denies
  172  that an accident occurred for which compensation benefits are
  173  payable, and the claimant prevails on the issue of
  174  compensability; or
  175         (d)In cases where the claimant successfully prevails in
  176  proceedings filed under s. 440.24 or s. 440.28.
  177  
  178  Regardless of the date benefits were initially requested,
  179  attorney’s fees shall not attach under this subsection until 30
  180  days after the date the carrier or employer, if self-insured,
  181  receives the petition.
  182         (5)(4) In such cases in which the claimant is responsible
  183  for the payment of her or his own attorney’s fees, such fees are
  184  a lien upon compensation payable to the claimant,
  185  notwithstanding s. 440.22.
  186         (6)(5) If any proceedings are had for review of any claim,
  187  award, or compensation order before any court, the court may
  188  award the injured employee or dependent an attorney’s fee to be
  189  paid by the employer or carrier, in its discretion, which shall
  190  be paid as the court may direct.
  191         (7)(6) A judge of compensation claims may not enter an
  192  order approving the contents of a retainer agreement that
  193  permits the escrowing of any portion of the employee’s
  194  compensation until benefits have been secured.
  195         (8)Nothing in this chapter impairs the right of a claimant
  196  to contract with an attorney for representation in connection
  197  with a claim filed under this chapter, except that an attorney
  198  may not recover an attorney’s fee from a claimant on benefits
  199  secured for which an attorney’s fee has been paid by a carrier
  200  or employer pursuant to this section.
  201         (9)Notwithstanding any provision of law to the contrary,
  202  attorney’s fees and costs of the prevailing party paid by a
  203  carrier to a claimant or a claimant’s attorney pursuant to this
  204  chapter may not be recouped, directly or indirectly, by any
  205  carrier, included in any rate base or rate filing, or used to
  206  justify a rate or rate change.
  207         (7)If an attorney’s fee is owed under paragraph (3)(a),
  208  the judge of compensation claims may approve an alternative
  209  attorney’s fee not to exceed $1,500 only once per accident,
  210  based on a maximum hourly rate of $150 per hour, if the judge of
  211  compensation claims expressly finds that the attorney’s fee
  212  amount provided for in subsection (1), based on benefits
  213  secured, fails to fairly compensate the attorney for disputed
  214  medical-only claims as provided in paragraph (3)(a) and the
  215  circumstances of the particular case warrant such action.
  216         Section 4. This act shall take effect upon becoming a law.