Florida Senate - 2009                      CS for CS for SB 2072
       
       
       
       By the Committees on General Government Appropriations; and
       Judiciary; and Senators Richter and Baker
       
       
       
       601-05656-09                                          20092072c2
    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 that the
   38         finder of fact and law is not bound by provisions of
   39         state law relating to the provision of indemnity or
   40         medical benefits for employment-related accidents or
   41         injuries involving exposure to a toxic substance or
   42         occupational disease when awarding attorney’s fees in
   43         cases involving first responders; requiring that the
   44         finder of fact and law consider certain factors when
   45         awarding attorney’s fees in such cases; defining the
   46         term “occupational disease” for specified purposes;
   47         deleting provisions authorizing a judge of
   48         compensation claims to approve alternative attorney’s
   49         fees under certain circumstances; providing
   50         legislative findings; providing an effective date.
   51  
   52  Be It Enacted by the Legislature of the State of Florida:
   53  
   54         Section 1. Paragraph (c) of subsection (3) of section
   55  440.105, Florida Statutes, is repealed.
   56         Section 2. Paragraph (c) of subsection (11) of section
   57  440.20, Florida Statutes, is amended to read:
   58         440.20 Time for payment of compensation and medical bills;
   59  penalties for late payment.—
   60         (11)
   61         (c) Notwithstanding s. 440.21(2), when a claimant is
   62  represented by counsel, the claimant may waive all rights to any
   63  and all benefits under this chapter by entering into a
   64  settlement agreement releasing the employer and the carrier from
   65  liability for workers’ compensation benefits in exchange for a
   66  lump-sum payment to the claimant. The settlement agreement
   67  requires approval by the judge of compensation claims shall
   68  enter an order determining what, if any, portion of the
   69  settlement proceeds must be allocated to satisfy any child
   70  support arrearage only as to the attorney’s fees paid to the
   71  claimant’s attorney by the claimant. The parties need not submit
   72  any information or documentation in support of the settlement,
   73  except as needed to justify the amount of the attorney’s fees.
   74  Neither the employer nor the carrier is responsible for any
   75  attorney’s fees relating to the settlement and release of claims
   76  under this section. Attorney’s fees related to a settlement and
   77  release of claims are not subject to the provisions of s.
   78  440.34(1). However, any attorney’s fees paid by a claimant may
   79  not exceed the amount allowable under the Supreme Court’s
   80  guidelines governing contingency fee agreements based upon the
   81  gross amount of the settlement. Payment of the lump-sum
   82  settlement amount must be made within 14 days after the date the
   83  judge of compensation claims mails the order determining the
   84  portion of the settlement proceeds, if any, that must be
   85  allocated to satisfy a child support arrearage approving the
   86  attorney’s fees. Any order entered by a judge of compensation
   87  claims approving the attorney’s fees as set out in the
   88  settlement under this subsection is not considered to be an
   89  award and is not subject to modification or review. The judge of
   90  compensation claims shall report these settlements to the Deputy
   91  Chief Judge in accordance with the requirements set forth in
   92  paragraphs (a) and (b). Settlements entered into under this
   93  subsection are valid and apply to all dates of accident.
   94         Section 3. Section 440.34, Florida Statutes, is amended to
   95  read:
   96         440.34 Attorney’s fees; costs.—
   97         (1) A claimant is responsible for the payment of his or her
   98  own attorney’s fees, except that he or she is entitled to
   99  recover attorney’s fees payable by a carrier or employer if:
  100         (a)A carrier or employer furnishes benefits claimed in a
  101  petition for benefits more than 30 days after the carrier or
  102  employer, if self-insured, receives the petition; or
  103         (b)The claimant successfully prevails in a proceeding
  104  filed under s. 440.24 or s. 440.28.
  105  
  106  The attorney’s fees a carrier or employer must pay under this
  107  subsection must equal 25 percent of the first $5,000 of the
  108  amount of the benefits secured, 20 percent of the next $5,000 of
  109  the amount of the benefits secured, and 15 percent of the
  110  remaining amount of the benefits secured. However, an attorney’s
  111  fee payable under this subsection may be increased up to the fee
  112  paid by the employer or carrier to the employer’s or carrier’s
  113  attorneys if it is determined that the employer or carrier
  114  engaged in a bad faith denial of benefits, unreasonably delayed
  115  furnishing benefits that were due and owing, or unreasonably
  116  continued or increased the expense of litigation.
  117         (2)Unless the parties agree otherwise, attorney’s fees
  118  payable under subsection (1) shall be determined A fee,
  119  gratuity, or other consideration may not be paid for a claimant
  120  in connection with any proceedings arising under this chapter,
  121  unless approved as reasonable by the judge of compensation
  122  claims or court having jurisdiction over such proceedings. Any
  123  attorney’s fee approved by a judge of compensation claims for
  124  benefits secured on behalf of a claimant must equal to 20
  125  percent of the first $5,000 of the amount of the benefits
  126  secured, 15 percent of the next $5,000 of the amount of the
  127  benefits secured, 10 percent of the remaining amount of the
  128  benefits secured to be provided during the first 10 years after
  129  the date the claim is filed, and 5 percent of the benefits
  130  secured after 10 years. The judge of compensation claims shall
  131  not approve a compensation order, a joint stipulation for lump
  132  sum settlement, a stipulation or agreement between a claimant
  133  and his or her attorney, or any other agreement related to
  134  benefits under this chapter that provides for an attorney’s fee
  135  in excess of the amount permitted by this section. The judge of
  136  compensation claims is not required to approve any retainer
  137  agreement between the claimant and his or her attorney. The
  138  retainer agreement as to fees and costs may not be for
  139  compensation in excess of the amount allowed under this section.
  140         (3)(2) In awarding a claimant’s attorney’s fee, the judge
  141  of compensation claims shall consider only those benefits
  142  secured by the attorney. An attorney is not entitled to
  143  attorney’s fees for representation in any issue that was ripe,
  144  due, and owing and that reasonably could have been addressed,
  145  but was not addressed, during the pendency of other issues for
  146  the same injury. The amount, statutory basis, and type of
  147  benefits obtained through legal representation shall be listed
  148  on all attorney’s fees awarded by the judge of compensation
  149  claims. For purposes of this section, the term “benefits
  150  secured” does not include future medical benefits to be provided
  151  on any date more than 5 years after the date the claim is filed.
  152  In the event an offer to settle an issue pending before a judge
  153  of compensation claims, including attorney’s fees as provided
  154  for in this section, is communicated in writing to the claimant
  155  or the claimant’s attorney at least 30 days prior to the trial
  156  date on such issue, for purposes of calculating the amount of
  157  attorney’s fees to be taxed against the employer or carrier, the
  158  term “benefits secured” shall be deemed to include only that
  159  amount awarded to the claimant above the amount specified in the
  160  offer to settle. If multiple issues are pending before the judge
  161  of compensation claims, said offer of settlement shall address
  162  each issue pending and shall state explicitly whether or not the
  163  offer on each issue is severable. The written offer shall also
  164  unequivocally state whether or not it includes medical witness
  165  fees and expenses and all other costs associated with the claim.
  166         (4)(3) If any party should prevail in any proceedings
  167  before a judge of compensation claims or court, there shall be
  168  taxed against the nonprevailing party the reasonable costs of
  169  such proceedings, not to include attorney’s fees. A claimant
  170  shall be responsible for the payment of her or his own
  171  attorney’s fees, except that a claimant shall be entitled to
  172  recover a reasonable attorney’s fee from a carrier or employer:
  173         (a)Against whom she or he successfully asserts a petition
  174  for medical benefits only, if the claimant has not filed or is
  175  not entitled to file at such time a claim for disability,
  176  permanent impairment, wage-loss, or death benefits, arising out
  177  of the same accident;
  178         (b)In any case in which the employer or carrier files a
  179  response to petition denying benefits with the Office of the
  180  Judges of Compensation Claims and the injured person has
  181  employed an attorney in the successful prosecution of the
  182  petition;
  183         (c)In a proceeding in which a carrier or employer denies
  184  that an accident occurred for which compensation benefits are
  185  payable, and the claimant prevails on the issue of
  186  compensability; or
  187         (d)In cases where the claimant successfully prevails in
  188  proceedings filed under s. 440.24 or s. 440.28.
  189  
  190  Regardless of the date benefits were initially requested,
  191  attorney’s fees shall not attach under this subsection until 30
  192  days after the date the carrier or employer, if self-insured,
  193  receives the petition.
  194         (5)(4) In such cases in which the claimant is responsible
  195  for the payment of her or his own attorney’s fees, such fees are
  196  a lien upon compensation payable to the claimant,
  197  notwithstanding s. 440.22.
  198         (6)(5) If any proceedings are had for review of any claim,
  199  award, or compensation order before any court, the court may
  200  award the injured employee or dependent an attorney’s fee to be
  201  paid by the employer or carrier, in its discretion, which shall
  202  be paid as the court may direct.
  203         (7)(6) A judge of compensation claims may not enter an
  204  order approving the contents of a retainer agreement that
  205  permits the escrowing of any portion of the employee’s
  206  compensation until benefits have been secured.
  207         (8)Nothing in this chapter impairs the right of a claimant
  208  to contract with an attorney for representation in connection
  209  with a claim filed under this chapter, except that an attorney
  210  may not recover an attorney’s fee from a claimant on benefits
  211  secured for which an attorney’s fee has been paid by a carrier
  212  or employer pursuant to this section.
  213         (9)Notwithstanding any provision of law to the contrary,
  214  attorney’s fees and costs of the prevailing party paid by a
  215  carrier to a claimant or a claimant’s attorney pursuant to this
  216  chapter may not be recouped, directly or indirectly, by any
  217  carrier, included in any rate base or rate filing, or used to
  218  justify a rate or rate change.
  219         (10)For purposes of first responders as defined in s.
  220  112.1815(1), the finder of fact and law is not bound by any
  221  statutory provision regarding attorney’s fees relating to the
  222  provision of indemnity or medical benefits for employment
  223  related accidents or injuries involving exposure to a toxic
  224  substance or occupational disease, but must consider the
  225  following factors when awarding an attorney’s fee:
  226         (a)The time and labor required, the novelty and difficulty
  227  of the questions involved, and the skill required to perform the
  228  legal service properly.
  229         (b)The fee customarily charged in the locality for similar
  230  legal services.
  231         (c)The amount involved in the controversy and the benefits
  232  payable to the claimant.
  233         (d)The time limitations imposed by the claimant or the
  234  circumstances.
  235         (e)The experience, reputation, and ability of the attorney
  236  or attorneys performing services.
  237         (f)The contingency or certainty of a fee.
  238  
  239  For purposes of this subsection, the term “occupational disease”
  240  has the same meaning as provided in s. 112.1815(4).
  241         (7)If an attorney’s fee is owed under paragraph (3)(a),
  242  the judge of compensation claims may approve an alternative
  243  attorney’s fee not to exceed $1,500 only once per accident,
  244  based on a maximum hourly rate of $150 per hour, if the judge of
  245  compensation claims expressly finds that the attorney’s fee
  246  amount provided for in subsection (1), based on benefits
  247  secured, fails to fairly compensate the attorney for disputed
  248  medical-only claims as provided in paragraph (3)(a) and the
  249  circumstances of the particular case warrant such action.
  250         Section 4. The Legislature finds that this act fulfills an
  251  important state interest relating to the public interest in
  252  prompt and adequate response to provide for the safety of the
  253  public unique to first responders.
  254         Section 5. This act shall take effect upon becoming a law.