Guest post by Michael McCabe, Esquire

It has now been almost one year since the Florida Supreme Court, in Castellanos v. Next Door Co., held that statutory fee limitations on what an injured worker’s attorney could be paid were unconstitutional. In response, the insurance industry has raised workers’ compensation rates by almost 15%. Florida employers and insurance companies now wait to see what, if anything, the Florida Legislature will do to address the situation.

Impact on Employers and Insurance Companies

As a workers’ compensation practitioner, representing only employers and their insurance companies, it is clear that the result of both Castellanos and the lesser known Miles v. City of Edgewater Police Department (a 2016 First District Court of Appeal case that held unconstitutional the workers’ compensation provisions prohibiting an injured worker from contracting independently with their attorney for a contingent fee) have certainly resulted in increased litigation and costs. While the prior fee limitations limited litigation and caused claimants’ attorneys to be selective as to which cases they chose to litigate, the current reality suggests that the opposite is occurring.

Proposed Legislation to Cap Attorneys’ Fees

With its prior attempts to limit the amount of fees that an employer or its insurance company would have to pay an injured worker’s attorney, first in 2008 and again in 2016, the Legislature’s challenge is to find more than a stop-gap solution to fees and resulting claims costs.

Two current proposed bills are currently being considered by the Florida Legislature. They both appear to involve Legislative Amendments to Chapter 440 that addresses recent Florida Supreme Court decisions and focus mainly on attorney’s fee provisions. House Bill 7085 includes amendments that propose a cap of $150.00 per hour on fees paid to claimants’ attorneys, while Senate Bill 1582 caps such fees at $250.00 per hour. This attorney’s concern is that amendments that focus mainly on only attorney fee provisions, and not substantive provisions of the Statute that lead to the payment of attorney’s fees, will be short-lived and not provide long-term relief for Employers and Insurance Companies.

Employers must keep in mind that they (and their insurance company) only have to pay for an injured employee’s attorney’s fees when a Judge of Compensation Claims finds that an employer/carrier improperly denied workers’ compensation benefits, or when an employer/carrier fails to provide due and owing benefits on an untimely basis. In all other instances, including when a claim is settled, the injured employee pays his own attorney’s fees. Therefore, the best medicine for employers and insurance companies is to use the tools available to them to make sure that claims are quickly and accurately investigated so that informed decisions can be made on which claims are compensable and valid, and which claims are not.

Move Forward Strategically

The Workers’ Compensation Defense attorneys at Henderson Franklin can help both employers and their insurance companies come up with strategies to effectively investigate claims and make informed decisions on which claims to contest, and which claims to accept. For those valid and compensable claims that are accepted, our attorneys can provide strategies and information which help employers and carriers limit claims costs.

For those cases spiraling out of control with ever-increasing medical costs, Henderson Franklin’s attorneys can help formulate a strategy to settle those claims at a fraction of what may be paid in the future (and with the employee paying for his attorney’s fees). There are many strategies that employers can apply, both before and after a work accident occurs, to reduce and control costs.

For insurance companies, we are available at a moment’s notice to provide recommendations on local physicians and to provide informed strategies on how a local claimant’s attorney will proceed with litigation. All of our Workers’ Compensation attorneys have over 13 years of experience. We welcome you to contact us with any questions or concerns. I can be reached at michael.mccabe@henlaw.com or by phone at 239-344-1218.

Human resource keyboardMake plans now to attend the biggest employment law conference in Southwest Florida, HR Law & Solutions, now in its 25th year! Henderson Franklin’s Employment Law and Workers’ Compensation attorneys will return to Sanibel Harbour Marriott Resort & Spa in Fort Myers on Friday, March 10, 2017, for a fun-filled day of education. Click here to view the seminar brochure.

Topics and Speakers

8:30 – 9:45 a.m. Legislative and Case Law Update
Speakers:  Robert C. Shearman, Esquire and Vicki L. Sproat, Esquire
Bob and Vicki will provide an interactive update on notable court decisions, including cases addressing contentious employment policies and other noteworthy employee claims. Attendees will learn practical advice and tips for businesses to reach their goal of a compliant workplace under current laws and regulations.

10:00 – 11:00 a.m. The ADA – 25 Years Later
Speaker:  John F. Potanovic, Esquire
On March 5, 1992, Henderson Franklin sponsored its first “Employer’s Update,” where John spoke to a small gathering at the Royal Palm Yacht Club about a brand new law – the Americans with Disabilities Act (ADA). Much has evolved since then. 25 years later, the Henderson Franklin seminar is called “HR Law and Solutions” and has 300+ attendees each year; the Royal Palm Yacht Club is a Pinchers Crab Shack; and John no longer has need for a blow-dryer. In this session, John will discuss the more difficult issues confronting employers attempting to steer clear of ADA problems, and he will share best practices to assist in dealing with these challenging issues.

11:15 a.m. – 12:15 p.m. How to Avoid Costly Litigation in Workers’ Compensation
Speakers:  David Roos, Esquire, Michael McCabe, Esquire and Tania Ogden, Esquire
Henderson Franklin’s Workers’ Compensation Defense Attorneys will share strategic tips employers can implement to help avoid costly litigation. They will discuss best practices with regard to policies that should be in place before the injury, how to manage and set employees’ expectations when an injury occurs, employer do’s and don’ts, as well as return to work policies. David, Michael and Tania will also share the importance of communication between the employer, insurance company and defense attorney(s) to try and achieve the best outcome possible for the employer.

1:45  – 2:45 p.m. New Year, New Administration: What Does 2017 Hold for Employers?
Speakers:  Panel discussion moderated by Suzanne M. Boy, Esquire, with panelists Robert E. Weisberg, Esquire, Regional Attorney for U.S. Equal Employment Opportunity Commission (Miami) and Benjamin Yormak, Esquire
There is little doubt in employer and HR circles that the ever-evolving nature of employment law can make management and prevention of problems difficult for even the most experienced leaders. After a 2016 that saw the Department of Labor roll out its huge new overtime changes mid-year, only to have implementation halted just weeks prior to the effective date, this has probably never been more true for 2017, when there is significant uncertainty surrounding what the new Administration will mean for employment laws. In this session attendees will have a unique look into what experts from all sides of the employment law world believe is on deck for 2017, including: potential changes to minimum wage and overtime laws, paid sick/maternity leave; the status of sexual orientation/gender identity protections; and, the ever-changing NLRB rulings. The panelists will also share their best tips to help employers stay in compliance and reduce exposure to the many employment claims prevalent today.

3:00 – 4:30 p.m. The Co-Workers’ Challenge
Guest Speaker Scotty Gunther
The Co-Workers’ Challenge is a quick paced, unique program that combines humor, motivational speaking, and leadership training. This session promotes teamwork, communication, and stress relief for HR professionals and other leaders through laughter. The Co-Workers’ Challenge provides participants various tools, strategies and tactics that they can use to help facilitate better communication, forge stronger working relationships among co-workers, and diffuse difficult or stressful situations more effectively.

4:30 – 5:30 p.m. 25th Anniversary Celebration
Please join us for a cocktail hour to celebrate our 25th Anniversary!

Continuing Education

This conference has been approved by SHRM for 5.75 PDCs and from HRCI for 6 Recertification Credit Hours (General).

Conference Partners

We are grateful for the support and sponsorship of Lykes Insurance (lunch sponsor) and of Gravity Benefits (our 25th Anniversary Celebration Sponsor), as well as our in-kind partners Charlotte County SHRM, SHRM SWFL, and HR Collier.

Registration

Registration is $50 per person and includes a continental breakfast, plated lunch, seminar materials and valet parking. To online register now, click here.

Join the discussion on social media using the #swflhrlaw hashtag.

We hope to see you soon! For group reservations or questions, please contact me at gail.lamarche@henlaw.com or by phone at 239-344-1186.

Guest post by Michael McCabe, Esquirehurted hand and work injury claim form

Earlier today, the Florida Supreme Court rendered its opinion in the workers’ compensation case Westphal v. City of St. Petersburg. The Court held the 104 week limitation of Temporary Total Disability (“TTD”) benefits in section 440.15(2)(a), Florida Statutes, to be in violation of an injured workers’ constitutional right to access to courts. The remedy reached by the court is to “revert” to a pre-1994 version of 440.15(2)(a), which provided payment of up to 260 weeks (5 years) of TTD benefits, before an injured worker reaches what is referred to as Statutory Maximum Medical Improvement (“MMI”).

Unique Case

While the impact of the Court’s opinion will be broad, the facts of Westphal were quite rare. An injured worker had been paid TTD benefits for 104 weeks, was still on an off-work status, and the workers’ compensation physician refused to release the claimant to return to work or place the claimant at MMI, until additional surgery was performed.

Continue Reading Breaking News: Florida Supreme Court Rules 104-week Limitation on Temporary Total Disability Payments Unconstitutional

Guest post by Workers’ Compensation Attorney Michael McCabe:

On April 28, 2016, the Florida Supreme Court entered its long-awaited decision in the case of Marvin Castellanos v. Next Door Company, et al. The Court held that the statutory limitations on Workers’ Compensation attorney’s fees created by the Florida Legislature violated the Due Process clause of both the Florida and United States Constitutions. Rather than a limited fee based on a percentage of the benefits actually secured, attorneys representing injured workers may now be awarded an hourly fee for time and effort reasonably spent litigating Workers’ Compensation benefits.

Out with the Old (Formula)

In 2009, the Florida Legislature amended Florida Statutes Section 440.34 to create an irrebuttable presumption that only allowed a judge to award a statutory guideline fee in a Workers’ Compensation case, instead of giving a judge the discretion to award either the statutory guideline fee or an hourly fee. This “guideline” resulted in the following formula that limited the amount an injured worker’s attorney could be paid to:

  • a fee based on 20% of the first $5,000 of the amount of benefits secured by the attorney;
  • 15% of the next $5,000.00 of the amount of benefits secured;
  • 10% of the remaining amount of benefits secured to be provided during the first 10 years after the date the claim is filed; and,
  • 5% of the benefits secured after 10 years.

In Castellanos, this statutory formula resulted in an attorney’s fee of $822.70, despite the fact the worker’s attorney reasonably spent 107.2 hours litigating a complex case to secure benefits for his client. This made the effective rate for the attorney $1.53 per hour. The First District Court of Appeal affirmed the result, noting it was constrained to abide by the statutory formula, but it certified the question to the Florida Supreme Court.

In considering the constitutionality of the statutory attorney fee limitation, the Florida Supreme Court addressed:

  1. whether the Legislature “was reasonably aroused by the possibility of an abuse which it legitimately desired to avoid;”
  2. whether there was a reasonable basis for a conclusion that the statute would protect against the abuse’s occurrence; and
  3. whether the expense and other difficulties of individual determinations on attorneys’ fees “justify the inherent imprecision of a conclusive presumption against an award of fees to an injured worker’s attorney,” that would not be limited to the statutory formula.

Analysis of the Decision

Continue Reading Florida Supreme Court Finds Limitations on Workers’ Compensation Attorney’s Fees Unconstitutional

10-12-2015 3-48-06 PMWhether you have 10 or 10,000 employees, running a business can be a challenge. Making decisions based on strategic reasoning is critical to the success and longevity of any company. How can members of the c-suite, as well as the small business owner, gain helpful insight into the boardroom and, at the same time, try and avoid the courtroom?

We cordially invite you and your top-level managers to join members of Henderson Franklin’s legal team on Tuesday, November 17, 2015 as they present the Southwest Florida C-Suite Summit at Sanibel Harbour Marriott Resort & Spa. Topics and speakers include:

The Recipe for Business Longevity presented by Attorneys Guy Whitesman (Chair, Business and Tax Department), Eric Gurgold (Chair, Estate Planning and Administration Department) and Mark Nieds (Intellectual Property Group). They will outline proven techniques and best practices to preserve, protect, and perpetuate your business. One size does not fit all. The panel will explore avenues to successful business perpetuation, liquidity events and the preservation of wealth.

The Comeback Kid: Southwest Florida’s Ongoing Economic Recovery. Attorneys Denis Noah (Chairman of the Horizon Council) and Russell Schropp (Horizon Council Task Force Chair) will provide a look at the state of Southwest Florida’s economic recovery – from a lawyer’s perspective! Continue Reading Registration is Open — Southwest Florida C-Suite Summit

hurted hand and work injury claim formAttorneys David Roos and Michael McCabe met with several attendees at the HR Law & Solutions seminar last month, in a question and answer session to address specific issues from a workers’ compensation perspective. A major focus of the questions centered around the extent to which HR policies, practices, and procedures would be affected by a pending workers’ compensation claim. Questions also addressed how much control an HR manager or employer has over issues that would normally result in disciplinary actions, including termination.

Have Consistent Policies and Procedures

David and Mike explained that an employer retains the same level of control over employee conduct regardless of a pending workers’ compensation claim, and that an employer could exert that control through consistent implementation of HR practices and procedures. According to David and Mike, this would eliminate potentially expensive employment law actions such as retaliatory discharge. HR professionals need to maintain the same practices and procedures that apply to all employees, and need to keep in close contact with their insurance company adjuster and defense attorney (if one has been retained) to make sure that the employer is aware of how an HR decision affects the pending workers’ compensation claim. Understanding how HR decisions, such as termination, affect the underlying injury claim allows the employer to understand how those decisions will increase (or decrease) the costs of a workers’ compensation claim – and ultimately future insurance premium increases.

When Does Termination Affect Workers’ Compensation Benefits? Continue Reading Workers’ Compensation Update – 2015 HR Law & Solutions

firefighter by DVIDSHUB on flickrThe Florida Supreme Court will hear oral argument in the Westphal v. City of St. Petersburg early June 2014, a case that employers, insurance carriers, and workers compensation attorneys are closely watching. The First District Court of Appeal, which hears all workers compensation appeals from the Judges of Compensation Claims, certified the following question:

Is a worker who is totally disabled as a result of a workplace accident, but still improving from a medical standpoint at the time temporary total disability benefits expire, deemed to be at “maximum medical improvement” (MMI) by operation of law and therefore eligible to assert a claim for permanent and total disability benefits?

“Date of maximum medical improvement” is defined as “the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” The date an injured worker reaches MMI is a significant milestone in workers compensation, as it has historically determined the end of eligibility for temporary disability benefits.

Background of the Westphal Case

Bradley Westphal, a firefighter, felt a sharp pain in his back as he was moving heavy furniture while fighting a fire. By the time he returned to the fire station, he reported extreme pain and a loss of feeling in his left leg from the knee down. The City of St. Petersburg accepted compensability of his low back and left knee injuries and provided both indemnity and medical benefits.

Mr. Westphal sought and obtained temporary total disability (TTD) benefits for a period of 104 weeks but he was still totally disabled at the time those benefits expired. He filed a petition for benefits seeking permanent total disability (PTD) benefits, but the judge of compensation claims denied the petition after agreeing with Mr. Westphal’s treating physician that he was not at MMI.

This controversy stems from a supposed “gap” in the statute, in which some totally disabled workers are ineligible to apply for PTD benefits if they are not medically deemed to be at MMI. The First DCA was deeply concerned about this “gap,” with the majority finding that “the notion that there can be a period of time during which a disabled worker is not entitled to be compensated for his or her workplace injury is contrary to the basic purpose of the Workers’ Compensation Law.”

The First DCA’s Opinion

The First DCA withdrew an earlier decision which declared the 102 week statutory limitation on TTD benefits unconstitutional. In place of the earlier opinion, it issued an “en banc” decision holding that a worker who is totally disabled as a result of a workplace accident, and remains totally disabled by the end of his or her eligibility for temporary total disability benefits, is deemed to be at maximum medical improvement by operation of law.  Therefore, the worker is eligible to assert a claim for permanent and total disability. In doing so, the First DCA rejected its prior decisions that held an employee whose temporary benefits have run out, or are expected to do so imminently, must be able to show not only total disability at the end of temporary benefits but also that total disability will be existing after the date of MMI.

The court observed that employers and workers compensation carriers are not without recourse, since the Workers Compensation Law (§ 440.15(1)(d), Fla. Stat. (2009)) allows them to discontinue the payment of disability benefits to a worker who has regained earning capacity through rehabilitation: “When an employee is deemed to be at maximum medical improvement by operation of law, the employer is not stuck with that determination forever. The worker’s status and eligibility for benefits can change with the circumstances.”

However, the dissenting judges characterized the court’s decision as an “end run” and “brazen defiance of a clear statutory directive” that limits temporary benefits to two years under Florida law.

The Bottom Line

Given the importance of the First DCA’s ruling to future workers’ compensation benefits and cases, employers, insurance carriers, and attorneys are anxiously waiting to see how the Florida Supreme Court rules on these issues. We will of course keep you posted—stay tuned to our blog for updates.

Photo Courtesy of DVIDSHUB on Flickr

hurted hand and work injury claim formConsider the following scenario:

Wynona Whiner is hired as a file clerk for a local law firm. Wynona gets a paper cut on her second day at work and files a workers’ compensation claim. Wynona’s doctor takes her off work for three days after the cut becomes infected over the weekend. On Monday, Wynona presents the law firm with the doctor’s note stating that she can return to work on Tuesday. However, Wynona does not return to work until the following Monday. When she returns to work, the law firm terminates Wynona under the firm’s no call, no show policy.

Which of the following statements is correct?

A.  Wynona may not bring a retaliation claim if her workers’ compensation claim is denied.

B.  Wynona may not bring a claim for retaliation because she was fired during her 90-day probationary period.

C.  Wynona will prevail on a claim for retaliation because she was fired within three months of filing a workers’ compensation claim.

D.  Wynona may have a claim for retaliation if the no call, no show policy has only been enforced against employees who have filed workers’ compensation claims.

Continue Reading Employment Law IQ: Workers’ Compensation Claims and Retaliation – What Would You Do?