Tallahassee, FL (WorkersCompensation.com) – With the start of a new administration and a new legislative session, proposals to change some of the rules for workers’ compensation in Florida have been filed. One is Senate Bill 1636 which could impact litigation in workers’ compensation proceedings.
First, the bill seeks to change the definition of specificity in F.S. 440.02(40). This is in the definition of the statute and comes into play when the Petition for Benefits requests things which are not clear. The statute is used in combination with F.S. 440.192 to file a Motion to Dismiss the Petition for Benefits. The new bill would require the calculation used for each benefit requested. It would also require that the Petition state specific information that the adjuster handling the file denied particular benefits. The bill strengthens the ability of the Judge of Compensation Claims to dismiss defective petitions.
The bill also contains requirements to include the exact method that was used to calculate an average weekly wage. Currently, the Petition for Benefits is supposed to contain the amount of the AWW, which is necessary to calculate indemnity or impairment benefits. This is required by F.S. 440.02(40). The new bill would strengthen this requirement by not only requiring the amount of the AWW, but the way it was calculated. In Florida, the AWW is typically calculated using the 13 weeks of actual gross earnings not including the date of accident. If the Claimant did not work at least 75 percent of his customary hours—usually at least 10 of those weeks—then you can use a similar employee or the claimant’s contract of hire. This new bill would require a statement of which of these methods is being used to calculate the AWW. Along those lines, the bill would also require the exact date of maximum medical improvement be placed in the petition, which is necessary to determine entitlement to impairment benefits.
The bill also seeks the time period for when attorney’s fees and costs attach to a filed Petition. Currently, the time period is 30 days from the date the Petition is filed. The new bill would extend that time period to 45 days. This would give a little more than two extra weeks for employer/carriers to make a decision regarding the benefits requested in a Petition for Benefits.
Recent Court Decisions
The bill makes amendments to F.S. 440.34, the attorney fee section. Due to the Castellanos case, there is currently no cap on the amount of attorney’s fees a Claimant can get for prevailing on a Benefit in litigation. This new bill would cap the amount of employer/carrier paid fees to a tiered statutory percentage (20 percent/15 percent/10 percent/5 percent). The bill also requires that the retainer contracts between the Claimant and the Claimant’s attorney be filed with the judge for approval. This currently happens when a Claimant’s attorney wants to get approval for a Miles fee, or a fee which deviates from the statutory formula. The reason the contract for representation has to be filed is because the Claimant has to waive his right to a statutory fee.
The new bill would codify the Westphal decision, which held that the 104-week limitation on indemnity benefits was unconstitutional. This is often done by legislatures to patch over what is essentially their mistake.
The bill also creates a requirement for Claimant’s be notified of their rights regarding attorney’s fees in the form of a written document prior to filing a Petition for Benefits. This could be in response to a practice that started happening after the Miles case where attempts were made to get the Claimant to execute a new contract of representation to include language required by the case to waive the right to a statutory fee.
The new bill heightens the requirement of good faith attempts prior to filing a Petition for Benefits. The current good faith attempt requires Claimants or their attorneys to personally contact the assigned adjuster prior to filing a Petition for Benefits. However, it is difficult under the current rules to show the lack of a good faith attempt because it creates an evidentiary matter in the pleading stage of the case. Under the proposed bill, the Judge would be able to conduct an investigation if a good faith attempt was made and even impose sanctions if there was no said attempt.
These are just some of the highlights of this new bill. Some of these changes are substantive and some of them are procedural. This matters because substantive changes in the law—or changes that effect entitlement to benefits—are tied to the date of accident. Whether or not some of these changes are substantive or procedural could create litigation.
Bruce Burk is a Florida workers’ compensation defense attorney who handles cases statewide. You can reach him at firstname.lastname@example.org.