HB 903

1	A bill to be entitled
2	An act relating to workers' compensation attorney's fees;
3	amending s. 440.34, F.S.; requiring a fee, gratuity, or
4	other consideration to be paid to an attorney representing
5	a claimant as approved by a judge of compensation claims
6	or court having jurisdiction in accordance with statutory
7	guidelines; revising the amount of attorney's fees that
8	may be paid; clarifying amounts a claimant is eligible to
9	recover from a carrier or employer; providing an effective
10	date.
11
12	WHEREAS, in 2003, premiums for workers' compensation
13	insurance in Florida ranked among the highest in the nation,
14	financially crippling Florida businesses and hurting Florida's
15	ability to attract business and limiting economic growth, and
16	WHEREAS, in 2003, upon a thorough analysis of the workers'
17	compensation system, the Florida Legislature recognized that the
18	availability of hourly attorney fee awards operated as a
19	significant cost driver with respect to workers' compensation
20	premiums and that the reliable and effective way to contain
21	those costs was to provide certainty in the awards of attorney's
22	fees, and
23	WHEREAS, in 2003, the Florida Legislature enacted
24	comprehensive workers' compensation reform, a critical element
25	of which amended section 440.34, Florida Statutes, to impose
26	concrete limitations on awards of attorney's fees and delete the
27	Lee Engineering v. Fellows discretionary factors which
28	previously fostered an excessive litigation volume by allowing
29	awards of unpredictable and unbridled hourly fees, and
30	WHEREAS, since the enactment of this reform, and in
31	material part because of the attorney's fee reform, workers'
32	compensation insurance has become vastly more available and
33	affordable for Florida's businesses, and
34	WHEREAS, following the enactment of the 2003 reforms, the
35	Legislature's goal of affordability was achieved as evidenced by
36	the premium decrease in workers' compensation premiums over the
37	next 5 consecutive years, by an average aggregate amount of 60.2
38	percent, to their lowest levels since 1984, including the
39	greatest one-year reduction in workers' compensation premiums in
40	Florida history in 2007, and
41	WHEREAS, on October 23, 2008, the Florida Supreme Court
42	effectively revived the discretionary factors in its ruling on
43	Murray v. Mariner Health, despite the express removal of those
44	factors, and
45	WHEREAS, this judicial nullification of critical workers'
46	compensation reform presents a real threat to the continued
47	availability and affordability of workers' compensation
48	insurance, particularly in these challenging economic times, and
49	WHEREAS, it is the intent of the Legislature to clarify
50	beyond dispute that the reforms on awards of attorney's fees are
51	an essential element of a functioning and self-executing
52	workers' compensation system, NOW, THEREFORE,
53
54	Be It Enacted by the Legislature of the State of Florida:
55
56	Section 1.  Section 440.34, Florida Statutes, is amended to
57	read:
58	440.34  Attorney's fees; costs.--
59	(1)  A fee, gratuity, or other consideration shall may not
60	be paid to an attorney representing for a claimant in connection
61	with any proceedings arising under this chapter, as unless
62	approved as reasonable by the judge of compensation claims or
63	court having jurisdiction over such proceedings pursuant to this
64	section. Any attorney's fee approved by a judge of compensation
65	claims for benefits secured on behalf of a claimant must be less
66	than or equal to 20 percent of the first $5,000 of the amount of
67	the benefits secured, 15 percent of the next $5,000 of the
68	amount of the benefits secured, 10 percent of the remaining
69	amount of the benefits secured to be provided during the first
70	10 years after the date the claim is filed, and 5 percent of the
71	benefits secured after 10 years. The judge of compensation
72	claims shall not approve a compensation order, a joint
73	stipulation for lump-sum settlement, a stipulation or agreement
74	between a claimant and his or her attorney, or any other
75	agreement related to benefits under this chapter that provides
76	for an attorney's fee in excess of the amount permitted by this
77	section. The judge of compensation claims is not required to
78	approve any retainer agreement between the claimant and his or
79	her attorney. The retainer agreement as to fees and costs may
80	not be for compensation in excess of the amount allowed under
81	this subsection or subsection (7) section.
82	(2)  In awarding a claimant's attorney's fee, the judge of
83	compensation claims shall consider only those benefits secured
84	by the attorney. An attorney is not entitled to attorney's fees
85	for representation in any issue that was ripe, due, and owing
86	and that reasonably could have been addressed, but was not
87	addressed, during the pendency of other issues for the same
88	injury. The amount, statutory basis, and type of benefits
89	obtained through legal representation shall be listed on all
90	attorney's fees awarded by the judge of compensation claims. For
91	purposes of this section, the term "benefits secured" does not
92	include future medical benefits to be provided on any date more
93	than 5 years after the date the claim is filed. In the event an
94	offer to settle an issue pending before a judge of compensation
95	claims, including attorney's fees as provided for in this
96	section, is communicated in writing to the claimant or the
97	claimant's attorney at least 30 days prior to the trial date on
98	such issue, for purposes of calculating the amount of attorney's
99	fees to be taxed against the employer or carrier, the term
100	"benefits secured" shall be deemed to include only that amount
101	awarded to the claimant above the amount specified in the offer
102	to settle. If multiple issues are pending before the judge of
103	compensation claims, said offer of settlement shall address each
104	issue pending and shall state explicitly whether or not the
105	offer on each issue is severable. The written offer shall also
106	unequivocally state whether or not it includes medical witness
107	fees and expenses and all other costs associated with the claim.
108	(3)  If any party should prevail in any proceedings before
109	a judge of compensation claims or court, there shall be taxed
110	against the nonprevailing party the reasonable costs of such
111	proceedings, not to include attorney's fees. A claimant shall be
112	responsible for the payment of her or his own attorney's fees,
113	except that a claimant shall be entitled to recover an a
114	reasonable attorney's fee in an amount not to exceed the amount
115	authorized under subsection (1) from a carrier or employer:
116	(a)  Against whom she or he successfully asserts a petition
117	for medical benefits only, if the claimant has not filed or is
118	not entitled to file at such time a claim for disability,
119	permanent impairment, wage-loss, or death benefits, arising out
120	of the same accident;
121	(b)  In any case in which the employer or carrier files a
122	response to petition denying benefits with the Office of the
123	Judges of Compensation Claims and the injured person has
124	employed an attorney in the successful prosecution of the
125	petition;
126	(c)  In a proceeding in which a carrier or employer denies
127	that an accident occurred for which compensation benefits are
128	payable, and the claimant prevails on the issue of
129	compensability; or
130	(d)  In cases where the claimant successfully prevails in
131	proceedings filed under s. 440.24 or s. 440.28.
132
133	Regardless of the date benefits were initially requested,
134	attorney's fees shall not attach under this subsection until 30
135	days after the date the carrier or employer, if self-insured,
136	receives the petition.
137	(4)  In such cases in which the claimant is responsible for
138	the payment of her or his own attorney's fees, such fees are a
139	lien upon compensation payable to the claimant, notwithstanding
140	s. 440.22.
141	(5)  If any proceedings are had for review of any claim,
142	award, or compensation order before any court, the court may
143	award the injured employee or dependent an attorney's fee to be
144	paid by the employer or carrier, in its discretion, which shall
145	be paid as the court may direct.
146	(6)  A judge of compensation claims may not enter an order
147	approving the contents of a retainer agreement that permits the
148	escrowing of any portion of the employee's compensation until
149	benefits have been secured.
150	(7)  If an attorney's fee is owed under paragraph (3)(a),
151	the judge of compensation claims may approve an alternative
152	attorney's fee not to exceed $1,500 only once per accident,
153	based on a maximum hourly rate of $150 per hour, if the judge of
154	compensation claims expressly finds that the attorney's fee
155	amount provided for in subsection (1), based on benefits
156	secured, fails to fairly compensate the attorney for disputed
157	medical-only claims as provided in paragraph (3)(a) and the
158	circumstances of the particular case warrant such action.
159	Section 2.  This act shall take effect upon becoming law.

CODING: Words stricken are deletions; words underlined are additions.