Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When Travis Martineau was seriously hurt in a 1999 construction accident, his spinal injury wasn’t his only problem. The 36-year-old Deerfield Beach, Fla., resident, who could not return to work due to the injury, felt his employer’s workers’ compensation insurer wasn’t paying him nearly enough for his disability. But that changed when he hired Richard Wagenheim, a board-certified workers’ compensation attorney in Fort Lauderdale. “Without a lawyer, you’re basically going to get run over,” says Martineau. Wagenheim got his benefits boosted from $200 a week to the maximum $520. But Florida’s main business lobby, Associated Industries of Florida, insists that when lawyers get involved in workers’ comp cases, no one gains except the lawyers. It complains that excessive attorney involvement makes Florida one of the costliest states for workers’ compensation insurance coverage. Now, a seven-person workers’ compensation task force appointed by Gov. Jeb Bush has recommended steps which could reduce payments to claimants’ attorneys — and make representing injured workers much less lucrative. The task force issued a massive set of recommendations last month for reducing administrative costs and bringing down insurance premiums. These include eliminating dozens of forms, ending a managed care requirement for the delivery of medical services and terminating a 30-day state review period before claims can be processed. Its most controversial recommendation, however, is to abolish a law that lets claimants’ attorneys receive payment on an hourly basis. While the Florida Bar and plaintiff attorney groups support some of these proposals, they vehemently oppose changing the attorney fee system. They argue that this would drive lawyers out of the business of representing claimants — and reduce the success rate of injured workers in collecting benefits. “It gives a smaller voice for the people who need to be heard and who don’t have the experience or knowledge to obtain their benefits,” says Steve Fried, a workers’ compensation attorney in Fort Lauderdale. Currently, workers who hire lawyers to press their compensation claims generally must pay counsel directly out of their compensation awards on a contingency fee schedule set by statute. Fees are apportioned as follows: 20 percent of the first $5,000 awarded to the claimant, 15 percent of the next $5,000, and 10 percent of any amount beyond that. But the law gives judges of compensation claims discretion to modify that payment arrangement. If, for example, the employer denies that the injury was work-related but the judge rules in the worker’s favor, the judge can order the employer or carrier to pay the claimant’s legal fees over and above the compensation award. The judge also can order the employer or carrier to pay the lawyer a reasonable hourly fee. The judge can set the hourly fee based on the amount of work and complexity of the case. The task force proposes to eliminate judges’ discretion to award hourly fees. It would limit claimants’ attorneys to a flat 20 percent fee taken from the claimants’ recovery. There would be two exceptions. When the claim is for medical benefits only, attorneys could receive an hourly rate, with the total capped at twice the value of the benefits awarded. And on appeals, claimants’ attorneys could recover $125 per hour, with a cap of $5,000. The bar and plaintiff attorney groups warn that no attorneys would be willing to represent claimants if the cuts are enacted. But Mary Ann Stiles, a Tampa lawyer who served on the task force and also represents AIF, says similar warnings in the past never came true. “Where are those claimants who went unrepresented?” she asks. More claimants are hiring attorneys, according to a report last year from the state Division of Workers’ Compensation. The number of cases in which attorney fees were recorded doubled from 15,014 in 1988 to 30,100 in 1995. During that same period, total attorney fees increased from about $69 million a year to more than $196 million. But Peter Burkert, past president of Florida Workers’ Advocates, an association of more than 300 attorneys who represent claimants, says fees for attorneys in workers’ comp cases have fallen significantly since 1994. That year, the Legislature cut the fee schedule, which previously awarded claimants’ attorneys 25 percent of the first $5,000. Burkert, a Fort Myers lawyer, says hourly fee petitions have become more common since 1989, when workers’ comp payments were cut by the Legislature and attorney fees dropped as a result. The state workers’ compensation division reports that average attorney fees dropped from $8,059 in 1988 to $2,673 for 1999 injuries. Rosemary Eure, a Sarasota lawyer who formerly headed Florida Workers’ Advocates, criticizes Gov. Bush for appointing a task force heavily tilted toward business and insurance interests. Bar groups and labor had no representatives. Jo Ann Hoffman, a Lauderdale-by-the-Sea attorney who represents claimants, says the task force fee proposal doesn’t take into account how much time it takes to resolve certain cases. While some can be handled with one phone call, she recalls one case where she logged 225 hours to get an insurer to approve payment for a routine spinal exam. Rafael Gonzalez, chair-elect of the Florida Bar’s 1,600-member workers’ compensation section, says eliminating judges’ discretion to order employers and carriers to pay claimants’ attorney fees directly puts an added burden on injured workers. If the lawyer’s fee must come out of the award, that leaves less money for injured, financially strapped workers to pay for medical expenses and other needs. Still, Gonzalez, a Tampa lawyer, says the bar backs several of the task force proposals, some of which could reduce the need for lawyers. “The system presently is so bogged down in paperwork, it would be difficult for anyone without a college education to get the correct forms, fill them out and submit them,” he says. The bar supports abolishing the unpopular requirement that employers and carriers use managed health care for injured workers, he says. In addition, it backs eliminating the 30-day review period before a claimant can file a petition for medical benefits or workers’ disability payments. This would allow workers to file claims directly with the employer or insurer. But AIF wants to focus on reducing lawyer involvement. It believes that changing the attorney fee system would accomplish that. Jon Shebel, the group’s president, says claimants’ attorneys drag out cases to boost their billable hours. “They don’t care about claimants,” he argues. “They’re just writing hours down in a little book.” But Wagenheim denies that. “From a business perspective, there’s nothing gained by dragging a case out,” he says. “The client is not happy if the case is not handled expeditiously, and we have overhead to pay for.” Enactment of the task force proposals is hardly certain. They have not yet been submitted as a bill by any lawmaker. But they are likely to receive serious legislative consideration. Elizabeth Hirst, a Bush spokeswoman, says the governor is generally supportive of the recommendations. “His ultimate desire is to have a workers’ compensation system that works in the best interest of injured workers, that it be a self-executing system and the injured workers can get their benefits quickly and in the proper amount, without an overriding need for additional attorney involvement,” she says. Spokeswomen for Senate President John McKay, R-Bradenton, and House Speaker Tom Feeney, R-Oviedo, say the two legislative leaders have not yet completed their review of the task force recommendations. State Sen. Walter G. Campbell, D-Tamarac, predicts that no workers’ compensation legislation will emerge from the Senate this year. That’s because labor unions and bar associations haven’t had input yet on the proposals, he says. Campbell, a plaintiff attorney who has handled workers’ comp cases, downplays his colleagues’ dire warnings that the proposals will drive attorneys away from representing injured workers. “Attorneys always rebound,” he says.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.