While business groups look to retake ground they first obtained in 2003, labor groups are gearing up to take advantage of the chance they see to redo the entire system in Florida.
In December of 2016, the Senate Banking and Insurance Committee began preparations for what will probably be a session-long debate on the subject. Recently, state regulators approved a 14.5% rake hike, largely due to two Florida Supreme Court decisions that have significantly changed the landscape. Both Committee Chairwoman Anitere Flores (R-Miami) and Senate President Joe Negron (R-Stuart) may want to pursue reforms as aggressive as the ones that lawmakers passed in 2003. That time, the Legislature tried to bring fees down by basically eliminating attorneys’ fees and therefore forcing injured workers to accept more pro-business settlement offers. The battle lines are drawn. AFL-CIO lobbyist Rich Templin said the system is “imbalanced” because “Injured workers are not being made whole [and] they’re not getting back to work.” On the other side, Florida Chamber of Commerce lobbyist Carolyn Johnson countered that it is reasonable to link attorneys’ fees with the settlement amount except in “extreme circumstances.”
A number of options are on the table, from tweaking the current system to scrapping it entirely and going back to the drawing board.
Why An Attorney Matters
Lawyers are “attorneys and counsellors at law,” so in addition to being strong advocates during adversarial proceedings, they offer professional guidance as to the best course of action.
To take the second part first, an experienced workers’ compensation attorney can evaluate a claim and closely estimate its settlement value. While it is true that under Florida’s workers’ compensation system injured workers do not have to prove fault to obtain benefits, the more evidence there is of injury, the better the worker’s claims are and the more benefits they receive. Sometimes it is important to press the issue and squeeze more money out of the insurance company, and sometimes it is best to accept the settlement offer and move on. Only a workers’ compensation attorney in Florida really understands the difference.
Although workers’ compensation was originally supposed to expedite claims to resolution, the system in the Sunshine State is very much a waiting game. Hearing officers nearly always deny most or all the claim at the first level, creating an opening for insurance company lawyers to move in and convince victims to settle. But once claims reach the second stage, an attorney can present evidence, cross-examine witnesses, make legal arguments, and fully advocate for the victim, and that dramatically increases the likelihood of fair compensation.
Two recent cases opened the floodgates for changes. Westphal v. City of Petersburg undid the 104-week benefits limit. In the case, a firefighter lost his benefits after 104 weeks, but since he was improving, could not prove that he was totally disabled and thus eligible for a lump-sum payment. The Florida Supreme Court said the 104-week cap (two years) was too low and ordered a return to the pre-2003 cap, which was 260 weeks (five years). In another case, Castellanos v. Next Door Company, the victim’s attorney earned $1.53 an hour for his aggressive work on a client’s disability case. The Florida Supreme Court ruled that the attorneys’ fees cap effectively prevented victims from having advocates in the system and declared the limit unconstitutional.
The bottom line is that victims now have access to experienced and aggressive representation, and also access to enough medical benefits to get them back to work.
Workers’ Compensation Procedure
All such claims begin with a written notice of injury. It is not always easy to tell whether or not the injury was work-related, especially if the victim suffers from an occupational disease, like respiratory problems or hearing loss. The best approach is to always file a notice because it can always be withdrawn later.
As mentioned earlier, a hearing officer then presides at what is essentially a settlement conference based on a review of the medical records on file. These records normally include the facts surrounding the injury, current treatment protocol, and expected outcome. The insurance adjuster on the other side is probably a veteran of hundreds or thousands of these hearings, but it is a first-time experience for the victim. So, it is actually surprising that any victims obtain any money at this stage.
Between the conference and the administrative hearing, many attorneys partner with outside medical experts to review the file and provide additional insight into the injury and prognosis. Armed with this and other information, an attorney will do battle against the insurance company lawyer and fight for the lost wages, medical expenses, and other benefits that the victim deserves.
To get started on the road to fair compensation, contact Barnett, Lerner, Karsen & Frankel today.