On April 28, in the case of Castellanos v. Next Door Company, the FL Supreme Court issued a decision to strike down a cap on attorney fees. Marvin Castellanos is an injured employee who sued his employer Next Door Co. and its insurer, Amerisure. The then-enacted FL. Stat. 440.34 provided a mandatory attorneys’ fee schedule for workers’ compensation case in the state of Florida. According to the statute, the attorney’s fee in Castellanos’s case calculated under the schedule turned out to be 1.53 per hour for 107.2 hours. The FL Supreme Court ruled that the schedule is invalid because it eliminates the right of a claimant to get a reasonable attorney’s fee, a right it says is a “critical feature” of worker’s compensation law. Without the likelihood of an adequate attorneys’ fee award, it is difficult for injured workers to protect themselves when insurers deny benefits. Furthermore, the statute violated the due process under both FL and U.S. Constitution by installing a presumption that whatever the fee on the schedule, it is reasonable and not providing any way for a claimant to refute the fee.

According to the ruling, the judges of compensation claims (“JCC”) will no longer be constrained by the statute in determining the amount of attorney fee owed by employers and insurers in workers’ compensation. From now on, a JCC must look to see if the guideline fee is reasonable. The standards for reasonableness are based on a 1968 FL Supreme Court case, Lee Engineering Construction Co. v. Fellows. These factors are:

• The time, labor and skill required by the attorney;
• The novelty, complexity, and difficulty of the questions involved;
• The fee customarily charged in the locality for similar legal services;
• The amount involved in the controversy and the benefits resulting to the Claimant;
• The likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
• The time limitation imposed by the Claimant or the circumstances, and any additional or special time demands or requests by the Claimant;
• The nature and length of the professional relationship with the Claimant;
• The experience, reputation, and ability of the lawyer or lawyers performing the services;
• The contingency or certainty of a fee.

A win for the home team:  “The Injured Worker”

In addition, on June 9, 2016, the FL Supreme Court struck down on another Florida workers’ compensation statute, which places a 104-week cap on temporary disability benefits, in Bradley Westphal v. City of St. Petersburg. Under the then-enacted FL statute, an injured worker would be eligible for 104 weeks of temporary benefits, a time period that is designed to compensate workers while they heal and then return to work or reach the maximum medical improvement status and become eligible for permanent benefits. In Westphal’s case, however, he exhausted his temporary benefits but was refused permanent benefits because his doctors could not determine the prospect of his long-term recovery. As such, he was left with no benefits even though his doctors advised him not to work and with no assurances about his future.

The FL Supreme Court ruled that the 104-week limitation is in violation of the constitutional right of access to court. The justices said the statute cuts off a severely injured worker from benefits at a critical time, when the worker cannot return to work and is totally disabled according to the worker’s doctors. The Court’s opinion further reverted the 104-week limitation to the old standard of 260 weeks. The court said allowing for five years of eligibility rather than two years was a limitation they previously held “constitutional.”

The Supreme Court decisions should not trigger a high rate increase. The Westphal ruling applies only to the case of severely-injured workers, who do not reach the maximum medical improvement before exhausting the temporary disability benefits limitation. These severely-injured workers only compose a handful of workers’ compensation cases. In addition, the Castellanos case is about denied benefits. Attorney’s fees are in play only when insurers wrongfully deny benefits; and that is completely within the control of insurance industry. Businesses should not have to pay more for premiums when the insurance carriers are the ones who wrongly decided to cut off benefits.

Florida, like any other states, places workers’ compensation law way down on its list of legislative priorities. It takes an emergency to force legislators to act. However, now is the time for Florida and Georgia legislators to study the state’s workers’ compensation system and make real changes that provide stability for businesses and appropriate benefits for the workers. Hopefully Georgia will pay attention and make some real changes to protect our injured workers.

The Poirier Law Firm has over 15 years of experience representing injured Georgia employees in workers’ compensation cases.  If you or a family member has been hurt at work, call Poirier Law today for a free consultation, to protect your rights!