The Florida Bar
Bar Issue Papers
(Ch. 440, F.S.)
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II. Bar Position
The workers' compensation law provides the means by which employees are compensated for injuries or illnesses caused by their employment. It has been in effect in Florida since 1935. It substitutes for a common law tort system of compensation based upon findings of negligence and provides instead, essentially a nofault system where there is supposed to be greater certainty of receiving benefits, although a reduced benefit. In return for employees receiving the more certain, yet reduced benefit under workers' compensation, employers receive immunity from facing suit over their own negligence. An employee who receives benefits under the workers' compensation system is limited largely to a portion of lost wages plus all medical care and is not eligible for damages such as pain and suffering, mental anguish, etc.
The law has been changed repeatedly since 1935 and again is the subject of further legislative efforts to change the workers' compensation system. The primary moving force behind these efforts is that employers in Florida claim the system is too costly. Efforts to deal with this complaint cover a wide spectrum, including cutting benefits to injured workers, reducing payments to medical providers, instituting managed health care or HMO concepts into workers' compensation, more strictly regulating insurance companies, cutting attorney involvement in the system, and providing changes in the administration and judicial process for workers' compensation.
While the various issues listed above are the subject matter of considerable legislative debate, The Florida Bar has limited its concerns to those issues relating to the adjudication of workers' compensation claims, as well as the rights of individuals to have reasonable access to courts.
The 1993 Regular Session ended in a stalemate on workers' compensation, with the Governor promising to call a Special Session on workers' compensation that fall.
The 1993 Special Session passed a worker's compensation bill with insurance premium savings of some 1324%. There were various reforms throughout the 311page conference committee report. Such changes in the process of appointing comp judges include: gubernatorial power to reject compensation judges up for reappointment; requirements for minorities on the statewide nominating commission; a prohibition against attorneys who regularly appear before comp judges from serving on the commission. Attorneys are now personally liable for other parties' costs in any frivolous action. Claimants' attorneys' fees were reduced by approximately 25%, and now apply only to benefits awarded for up to 10 years. As well, criteria for awarding higher fees in special cases were reduced.
During the 1994 Regular Session, many bills were introduced that would have embodied the Governor's plan to establish comp judges as administrative law judges within the Department of Labor and Employment Security. These bills were consistent with both The Florida Bar's and Workers' Compensation Section's position. However, both bills died before they made it out of committee.
II. Bar Position
A. American Bar Association
The ABA opposes legislation mandating minimum federal standards for state plans of workers' compensation; urges that workers' compensation systems remain the responsibility of states; and opposes federal legislation infringing upon state systems. (ABA Policy and Procedures Handbook)
B. Florida Bar
The Florida Bar has not adopted a position for the 199495 biennium. The former position (adopted in February 1993) was to oppose any changes in the current workers' compensation law which would: restrict either the independence of trial judges to hear workers' compensation cases or the right of injured workers to have these matters reviewed by an Article V court; and remove or diminish the right of claimants to pursue a complete and full recovery including attorneys' fees for an insurer's wrongful denial of benefits.
As of March 13, 2001, the Bar opposes HJR 627 because it would alter the Florida Supreme Court's authority to adopt rules for practice and procedure in all courts, and would change the manner by which rules may be repealed by the legislature.
C. Workers' Compensation Section
As of August 14, 1998, the Workers' Compensation Section has adopted a position that "supports any change in the workers' compensation law that would insure the independence of the Judges of Compensation Claims in their ability to discharge the duties of their offices in the adjudicating process, including a reappointment process that promotes and insures independence of the judiciary." The section also supports any legislation: that ensures the right of the injured worker to have their cases reviewed by an Article V court; that would streamline and make more efficient the administration of justice in the workers’ compensation system; that would further enforce insurance coverage requirements of the Workers’ Compensation Act; that would eliminate mandatory managed care in workers’ compensation within Florida Statute 440.134 and any other provisions that require employers/carriers to maintain a managed care network; that would allow Judges of Compensation Claims to reduce settlements in workers’ compensation cases by the amount of any outstanding child support owed by the claimant, taking into account all relevant circumstances; that requires Workers’ Compensation Rules of Procedure to be approved by the Florida Supreme Court; and that eliminates exemptions to workers’ compensation coverage within the construction industry.
In addition, the section opposes any legislation effecting restrictions on, or restructuring of, the payment of attorneys' fees -- either to the attorney of the injured worker or to the attorney for the employer/carrier/self-insured -- other than what is currently stated within Florida Statute 440.34. This section also opposes the creation of a specialty panel of the First District Court of Appeal to exclusively hear workers' compensation appeals.
On February 3, 1993, Governor Lawton Chiles proposed to the 1993 Legislature a major reform proposal designed to reduce the rising cost of workers' compensation coverage in Florida. At the time, he pointed out that Florida's workers' compensation costs ranked 6th highest in the nation, having escalated dramatically in recent years. In 1989, rates jumped 28 percent; in 1990 they jumped another 36.7 percent. That increase prompted a major legislative reform effort which attempted to control costs by cutting benefits by 30 percent. The 1990 legislation also rolled back insurance rates 25 percent and froze rates until January 1, 1992, at which time the rates jumped again -- this time by 24.9 percent. Some of Governor Chiles' proposals were to:
- create a workers' compensation appeals commission that would hear appeals of claim disputes. This commission would be appointed by representatives of business and organized labor;
- give the Governor greater control over the reappointment process of Judges of Compensation Claims and allow him not to reappoint a judge at the Governor's discretion;
The proposal to replace a judicial appeal with an administrative appeal generated a great deal of controversy. Much of the concern related to the susceptibility of such a process to political abuse and the resultant potential for bias and impairment of the due process rights of injured workers.
- hire 100 state lawyers to represent workers without charge. If workers wanted to choose their own attorney they would have to pay out of their own pocket;
- reduce attorneys' fees and provide a more limited basis upon which employer/carriers would have to pay the fee for an injured workers' attorney.
The Florida Bar and the Workers' Compensation Section opposed any changes to the appointment process of commission members, because it was felt that it would weaken the independence of the appellate court deciding appeals of workers' compensation cases.
The Governor's proposal for hiring state lawyers to represent injured workers and, in conjunction, to reduce an injured worker's ability to hire a private lawyer would have the effect of denying access to courts. An injured worker would find it much more difficult to find qualified counsel to provide representation when disputes arose between an injured worker and the employer/carrier.
Changes to the law in 1993 included restricting workers' ability to choose doctors; funneling workers into managed care systems; limiting eligibility for permanent disability and shortening benefits for temporary disability; and eliminating wage loss benefits for those with less than 20 percent impairment.
Presently, attorneys' fees are awarded by the workers' compensation judges who follow a schedule based on the amount of the benefits awarded to the worker. The schedule is:
- 20 percent of the first $5,000 awarded;
- 15 percent of the next $5,000 awarded; and
- 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years.
The fees are to be paid by the injured worker, except in certain instances. If a formal claim is filed and the employer/carrier does not pay the benefit within 21 days, then ultimate success on that claim will require the employer/carrier to pay the fee. The employer/carrier is also required to pay the fee in instances where they deny a medical benefit alone or in cases where they deny that an injury occurred for which compensation benefits are payable. In all other instances, including most settlements, the employee pays the attorney.
In the 1999 legislative session, one bill passed and was signed by the Governor. The bill increased the retirement benefits for judges of compensation claims, and was supported by the Bar’s Workers’ Compensation Section. No significant changes were made to Florida Statutes Chapter 440 in 2000.
The State of Florida Office of the Judges of Compensation Claims created the Workers’ Compensation Uniform Practices and Procedures, effective November 1, 2000, “to promote statewide uniformity, reduce procedural inconsistency, and standardize operating procedures among the judges of compensation claims.” The uniform practices and procedures are to “complement, not supplant, the rules drafted by the Workers’ Compensation Rules Committee of The Florida Bar and adopted by the Supreme Court.”
Prepared by The Florida Bar Department of Public Information and Bar Services with the assistance of the Workers Compensation Section and the CLE Publications Office of The Florida Bar.