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Workers’ comp bill awaits the governor’s signature

Associate Editor Regular News

Workers’ comp bill awaits the governor’s signature

(Editor’s Note Update : Gov. Charlie Crist singed HB 903 into law on May 29.)

Associate Editor

Legislation intended to limit claimant attorneys’ fees in workers’ compensation cases is now awaiting the governor’s signature.

While easily cleared the Legislature, opponents of the measure which reinstates strict fee caps on workers’ comp claimant attorneys are still holding out hope for a gubernatorial veto. Among the opposition is the Bar’s Workers’ Comp Section.

The bil l — advanced by Rep. Anitere Flores, R-Miami, and Sen. Garrett Richter, R-Naples — landed on Gov. Charlie Crist’s desk May 15. He has until May 30 to act (after this News went to press).

Business interests have lauded the measure. Associated Industries of Florida ranked passage of the bill as its top priority of the just-completed session.

“AIF stands united with Florida’s business community in advancing this important legislation all the way to the governor’s desk,” said AFI President Barney Bishop, adding the legislation was the exact response needed to establish the Legislature’s policy-making authority and clarify its original intent to “guarantee” that injured workers actually receive the majority of benefits secured. “We must restore the balance to the workers’ compensation system that makes coverage available and affordable for all employers and employees.”

Throughout the debate, Flores maintained the purpose of the bill was to remove that ambiguity in the law and make sure workers’ compensation rates didn’t begin to increase.

“It’s the proverbial camel’s nose under the tent,” Flores said on the House floor. “Once rates begin to creep up, they’ll continue to creep up. The National Council on Compensation and Insurance Regulation has already said that unless the Legislature acts, there is going to be $175 million less in Florida’s employers’ hands to hire employees.”

The legislation centers around one word, “reasonable,” striking it from the statutory language governing payments of injured workers’ attorneys.

Under current law, if an injured worker sues his or her workers’ compensation insurance company for wrongfully denying a claim and wins, the worker is permitted to pay the attorney only a small percentage of the claim eventually awarded, while the amount that insurance company can pay its own attorney for defense is unlimited. The Florida Supreme Court’s October 2008 ruling in Murray v. Mariner Health, 944 So. 2d 1051 (Fla. 2008)
overturned the law when it held that claimants’ attorneys can be paid a “reasonable” fee based on the merits of the case.

State business interests lobbied hard after Murray, warning that the court’s decision would drive up premiums for workers’ comp insurance. HB 903, which answers Murray by simply striking “reasonable” from the statute, sailed through the legislature as a session priority.

Emma Murray sued Mariner Health for denying her claim for coverage after she injured herself lifting a patient and required a hysterectomy. Brian Sutter, who represented Murray, worked approximately 80 hours on her case and, due to the caps, was awarded $685, or about $8 an hour. Mariner was not limited in what it could spend to defend the claim, so its counsel made about $16,000.

Sutter spent much of the 2009 legislative session in committee meeting rooms, flanked by scores of first responders — police, firefighters, and others who had been or might be injured on the job — who came to the Capitol to beg legislators to look out for their rights. They were joined at one point by Richard W. Ervin III, recently retired from the First District Court of Appeal, who warned the measure would be declared unconstitutional.

“I am just in disbelief that the Legislature would thumb their noses at the court the way it did,” Sutter said. “It was clear in the Murray ruling that the court was trying to save the Legislature from the constitutionality issue, but it was as though they didn’t ask anybody at all about that part. The fact that we were screaming it from the sidelines — that, they just ignored.”

Support for an amended version of the bill, which would have removed caps on claimant attorneys’ fees and prohibited insurance companies from passing the cost of defense onto consumers, did eventually pick up some speed in the Senate. But it was eventually defeated on the session’s final day.

“The problem with workers’ compensation is everybody says it (being injured on the job) won’t happen to me,” Sutter said. “Then when it does, they find out the system is in a horrendous mess.”

Richard Chait, a workers’ comp plaintiff’s attorney who will take over as the Bar’s Workers’ Compensation Section chair this month, said he hoped the governor will veto the bill.

“What happened to the separation of powers, to checks and balances?” Chait asked. “What should workers’ comp attorneys, who dedicate themselves to representing injured workers against an oppressive law, tell the next Mrs. Murray who comes to us for help?”

Sutter added: “It’s up to the governor now. He needs to veto this bill. He needs to say, ‘politics be damned, we swore to uphold the constitution.’ That’s what we as lawyers are obligated to do — it’s not just window dressing. I think he’ll do the right thing.”

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