During the Workers’ Compensation Forum last week–which can easily be described as a successful event–many of us learned of the recent developments of Senate Bill 2072.   Per a recent post, I discussed how the Florida Legislature is tackling the Emma Murray decision head on, attempting to enact legislation to overturn the Supreme Court decision that reinstated hourly fees for Claimant attorneys.

The House version, HB 903, sailed through committees and ultimately passed on March 31.  The identical Senate version, however, has met significant stiffer resistance.  Now, SB 2072, is amended to the point where the two versions look nothing alike and, in my opinion, is weighed down with too many controversial “compromises” that I cannot foresee how either side will agree to.

Let’s look at the controversial amendments. . .

First, the amendments remove the JCC’s power to review of any attorney’s fee.  A Claimant attorney can obtain any fee amount from her client, without approval from the Judge.   Only the attorney fee rules set by the Florida Supreme Court, via the Florida Bar, would regulate such fee contracts.

Second, the statutory fee formula is raised from 20% of the first $5000, 15% of the next $5,000, and 10% of any amount above $10,000 to 25%, 20%, 15% for the same respective amounts.

Third, the “old” bad faith law returns so that Claimant’s can obtain Carrier paid attorney fees.   This was a portion of the fee statute repealed in 1989 that awarded fees if the JCC decides that the Employer/Carrier handled the claim in bad faith and caused an economic loss to Claimant.  The interpretation of bad faith was expanded through case law, so much so that even a good faith denial by the E/C was viewed as “bad faith.”

All of these amendments were added just so the word “reasonable” could be removed from s. 440.34(3).  You can view the entire sausage making process here.

So what are my thoughts?  I cannot see how a Republican Congress (in any state, let alone Florida) would ultimately agree on these amendments.  Bringing back bad faith would be disastrous for Employers and really increase attorney fees.  Upping the statutory formula would have nominal effect compared to bad faith.  Also, how in any way–shape or form–is removing the JCC review of attorney’s fees helpful to injured workers?  Per a recent post, attorney fees are fraught with ethical issues that greatly effects Claimants.  Removing judicial auditing would subject Claimants to even more dubious fee situations.

In all, I think these amendments were made just to bog down the passage of the bill, delaying the process until the May 31 deadline for the legislative session when the sand ultimately runs out of the glass.  Keep in mind, if for some reason the Senate does pass this version of the bill and all of its amendments, it is now completely different from the House version.   A joint committee of House and Senate members msut hammer out a new joint bill, reconciling the differences, then have both houses vote on the reconciliations, then Govorner Crist has to sign it into law.   A tall order with only 10 days to go.

More to come (I am sure of it). . .

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