Update on Attorney’s Fees in Workers’ Compensation Cases

It has now been almost one year since the Florida Supreme Court, in Castellanos v. Next Door Co.held that statutory fee limitations on what an injured worker’s attorney could be paid were unconstitutional. In response, the insurance industry has raised workers’ compensation rates by almost 15%. Florida employers and insurance companies now wait to see what, if anything, the Florida Legislature will do to address the situation.

Impact on Employers and Insurance Companies
As a workers’ compensation practitioner, representing only employers and their insurance companies, it is clear that the result of both Castellanos and the lesser known Miles v. City of Edgewater Police Department (a 2016 First District Court of Appeal case that held unconstitutional the workers’ compensation provisions prohibiting an injured worker from contracting independently with their attorney for a contingent fee) have certainly resulted in increased litigation and costs. While the prior fee limitations limited litigation and caused claimants’ attorneys to be selective as to which cases they chose to litigate, the current reality suggests that the opposite is occurring.

Proposed Legislation to Cap Attorneys’ Fees
With its prior attempts to limit the amount of fees that an employer or its insurance company would have to pay an injured worker’s attorney, first in 2008 and again in 2016, the Legislature’s challenge is to find more than a stop-gap solution to fees and resulting claims costs.Two current proposed bills are currently being considered by the Florida Legislature. They both appear to involve Legislative Amendments to Chapter 440 that addresses recent Florida Supreme Court decisions, and focus mainly on attorney’s fee provisions. House Bill 7085 includes amendments that propose a cap of $150.00 per hour on fees paid to claimants’ attorneys, while Senate Bill 1582 caps such fees at $250.00 per hour. This attorney’s concern is that amendments that focus mainly on only attorney fee provisions, and not substantive provisions of the Statute that lead to the payment of attorney’s fees, will be short-lived and not provide long-term relief for Employers and Insurance Companies.Employers must keep in mind that they (and their insurance company) only have to pay for an injured employee’s attorney’s fees when a Judge of Compensation Claims finds that an employer/carrier improperly denied workers’ compensation benefits, or when an employer/carrier fails to provide due and owing benefits on an untimely basis. In all other instances, including when a claim is settled, the injured employee pays his own attorney’s fees. Therefore, the best medicine for employers and insurance companies is to use the tools available to them to make sure that claims are quickly and accurately investigated, so that informed decisions can be made on which claims are compensable and valid, and which claims are not.

Move Forward Strategically
The Workers’ Compensation Defense attorneys at Henderson Franklin can help both employers and their insurance companies come up with strategies to effectively investigate claims and make informed decisions on which claims to contest, and which claims to accept. For those valid and compensable claims that are accepted, our attorneys can provide strategies and information which help employers and carriers limit claims costs.For those cases spiraling out of control with ever-increasing medical costs, Henderson Franklin’s attorneys can help formulate a strategy to settle those claims at a fraction of what may be paid in the future (and with the employee paying for his attorney’s fees). There are many strategies that employers can apply, both before and after a work accident occurs, to reduce and control costs.For insurance companies, we are available at a moment’s notice to provide recommendations on local physicians and to provide informed strategies on how a local claimant’s attorney will proceed with litigation. All of our Workers’ Compensation attorneys have over 13 years of experience. We welcome you to contact us with any questions or concerns.

About the Author
Michael E. McCabe focuses his practice in the defense of workers’ compensation claims and handles numerous workers’ compensation appeals. He also represents businesses, contractors, and individuals who have received Stop Work Orders from the Department of Financial Services, Division of Workers’ Compensation’s Bureau of Compliance. He can be reached at michael.mccabe@henlaw.com or by phone at 239-344-1218.