4-1-1 on Comp: Update on Work Comp Attorneys’ Fees in FL

Bruce Burk

Sarasota, FL (WorkersCompensation.com) – With the November election in the review mirror, many are speculating on what the new state legislatures will do to the Workers’ Compensation code when they begin their sessions in the new year. In Florida, some thought that the previous legislature was going to tackle some of the issues with the 440 code (work comp), but they handled other problems instead. This article serve as a discussion of current state of attorneys’ fees in Florida workers’ comp cases and some thoughts on where the legislature may go in the next session.

In Florida, the foundation of attorneys’ fees is a statutory fee. This is outlined in section 440.34. Essentially, you get a certain percentage of the amount of benefits recovered and the percentages go down the higher the amount of the settlement. You get 20% of the first $5,000, 15% of the next $5,000, and 10% of the remaining benefits secured.

However, if you were taking a statutory fee based on the amount of hours expended in the case, often times your actual hourly rate is relatively low compared to what other lawyers make in cases like personal injury or medical malpractice.

This is why most of the time the claimants’ attorneys ask for what is called a Miles fee. A typical Miles fee is 25% of the total washout settlement. The Miles fee is based on a relatively new case which lays out the criteria or when an attorney can be paid in a different manner than the statutory fee. So naturally, it only applies to cases that occur after the date of the opinion. In order to take the Miles fee, the claimant has to sign a retainer agreement where he or she agrees in a contract that their lawyer can be paid in an alternative method than a statutory fee.

When requesting a Miles fee, the judge of compensation claims has to approve the reasonableness of the fee. Some of the factors that they look at include: the amount of hours the attorney spent working on the case, the experience of the lawyer, whether or not the case presented any unique issues of fact or law, whether or not the attorney obtained any benefits for the client, and whether they signed a Miles retainer.

If the lawyer did obtain a benefit for the claimant when that benefit was denied to them 30 days after a petition was filed, then the claimant’s attorney may be entitled to a carrier-paid fee. This is a separate fee on top of the Miles or statutory fee. A carrier-paid fee does not have to be connected to a washout settlement but can be.

When claimants’ attorneys are taking both a Miles fee and a carrier paid fee, the judge of compensation claims will look to the total amount the attorney is taking from the claimant’s net settlement as a percentage. If it is too high, the judge may not approve the attorneys’ fee in connection with the settlement and It may have to be resubmitted.

The Florida Bar has issued guidelines for what is an ethically reasonable fee in personal injury cases which also has a tiered system based on the amount of the settlement. They believe that if the Florida Bar has stated what is reasonable, such as 30%, what real question is there for the judge of compensation claims in deciding reasonableness? However, it appears most sitting judges do not agree with this proposition.

The attorneys’ fees in Florida Workers’ Compensation were altered by the Castellanos case, where part of the attorney fee statutes were held to be unconstitutional.

Some believe the new governor and the new legislature may seek to take on the 440 code in the next legislative session. One possibility is the codification of Miles into 440.34. They could also codify the Miles factors into the statute as well. Some believe they may try to limit the amount of attorneys’ fees to a new form of tiered amounts similar to what is currently in 440.34. We will have to wait and see.

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