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