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  • Senate Bill 1582 –Part I. Worker's Compensation Insurance

Senate Bill 1582 –Part I. Worker's Compensation Insurance

Reasonable Attorney's Fees in Florida

CS/SB 1582 –Worker's Compensation Insurance changes several provisions of Chapter 440 of the Florida Statutes. The Bill regulates five (5) issues concerning worker's compensation in Florida, most notably, reasonable attorney's fees, and disability compensation. The Bill is set to codify a number of recent Florida landmark Supreme Court Cases – Castellanos v. Next Door Company; Westphal v. City of St. Petersburg; and Miles v. City of Edgewater Police Department.

To understand how the changes made to Chapter 440 regarding attorney's fees will affect worker's compensation law in Florida, we must understand what happened in the notable Supreme Court cases that the Bill will codify if passed.

Castellanos v. Next Door Company

In Castellanos, the Florida Supreme Court was called to consider the constitutionality of § 440.34 F.S. concerning the mandatory fee schedule that eliminated the requirement of reasonable attorney's fees to the successful claimant in a worker's compensation case.

The Florida Supreme Court ruled that the mandatory fee schedule in § 440.34, which created an irrebuttable presumption that precluded any consideration of whether the fees awarded were reasonable to compensate the attorney, was unconstitutional as a violation of the Due Process Clause of the Florida and Federal Constitutions.

The interesting thing about this case was that Castellanos' attorney's fee award was only $1.53 per hour for 107.2 hours worked, as determined by the Judge of Compensation Claims (JCC) under Florida's §440.34 sliding scale formula. Moreover, Castellanos had no ability to challenge the reasonableness of the $1.53 hourly rate, and both the JCC and the First District were precluded by §440.34 from reassessing the fee.

The Court reasoned that the Statute was facially unconstitutional as a violation of due process based on the well-established principle regarding irrebuttable presumptions. In this instance, the Court noted, the Statute precluded every (emphasis added) injured worker from challenging the reasonableness of the fee award, stating "it is the irrebuttable statutory presumption –not the ultimate statutory fee awarded in a given case –that we hold unconstitutional."

Westphal v. City of St. Petersburg

In Westphal, the Court considered the constitutionality of § 440.15(2)(a), concerning disability compensation in Florida. The Statute cut off disability benefits after 104 weeks to a worker who had been totally disabled and could not work, but who also had not reached maximum medical improvement –i.e., the worker could potentially improve to working status.

The Court concluded that this limitation was unconstitutional under Florida law as a denial of the right of access to courts provided in the Florida Constitution. According to the Court, the Statute deprives an injured worker of disability benefits for an undetermined amount of time.

The 104-week limitation on temporary total disability benefits results in a statutory gap in benefits. Such a gap is a violation of the constitutional right of access to courts because an individual in Westphal's position would not yet be legally able to assert a claim for permanent total disability benefits at the conclusion of the statutory 104 weeks, but would also be in a position to medically improve, making he or she "stuck between a rock and a hard place."

Here, the Court applied the test that it used in Martinez, (a different Florida Supreme Court case) for whether a change made to a worker's compensation statutory scheme violates Florida access to courts depends on whether the scheme continues to provide 'adequate, sufficient, and even preferable safeguards for an employee who [was] injured on the job.'

The Court did not, however, render the entire statute unconstitutional, such that the statute would be considered invalid. The Court employed the statutory revival tool and directed that the law reverts to what it had been before the 1994 change. Thus, § 440.15(2)(a) was revived and provides for temporary total disability benefits not to exceed 260 weeks.

Miles v. City of Edgewater Police Department

In Miles, the Florida First District Court of Appeals held that the statutes governing paying attorney's fees in a worker's compensation proceeding violated the claimant's First Amendment rights and were thus, unconstitutional.

The First DCA invalidated the limitation on an attorney's ability to accept payment directly from the injured worker or other people who had desired to pay on the worker's behalf.  This case challenged the idea that the attorney was only allowed to be paid by the employer or carrier, and only if the worker won the case.

The First DCA found that it is a right of Freedom of Speech that the injured worker be able to choose to speak to the courts through an attorney and also a right to contract with an attorney permits he or she to retain one. Thus, to control the way a worker compensates his or her attorney amounts to an attempt to control the way he or she contracts with an attorney and therefore speaks through that attorney.

The Court deemed this overreaching a violation.

Additional Resources

Senate Bill 1582 Analysis– Visit the official website of the Florida Senate for more information on the current status of CS/SB 1582, which includes the most current position of the bill in the legislative history, any amendments, and any old bill analyses.

Westphal v. City of St. Petersburg  --Visit the official website of the Florida Supreme Court to find the full fifty-five (55) page opinion of Westphal.

Find an Attorney for Worker's Compensation in Ft. Lauderdale, FL

Considering the complexity of worker's compensation cases in Florida, the ability to retain and contract with an attorney is imperative. Historically, individuals have been able to pay those attorneys through reasonable compensation claims after the case has been won.

If you or someone you know has been wrongfully denied reasonable attorney's fees in a worker's compensation case, call the attorneys at The Hoffman Firm.

Our attorneys have years of experienced fighting for the rights of those who have been injured at the workplace. We take cases crimes throughout Broward County, including Coral Springs, Hollywood, Pompano Beach, Miramar, and other surrounding areas in the Fort Lauderdale metropolitan area.

Call our office at (305) 940-2307 for more information.

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Evan A. Hoffman

Evan A. Hoffman

Mr. Hoffman’s philosophy is "our knowledge and experience is your best defense." He has been a featured author on criminal law issues such as driving under the influence, domestic violence and illegal searches.

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