Batter up! Session End Looms Near in FL, Attorney Fees & PTSD Up to the Plate

Tallahassee, FL (WorkersCompensation.com) – With one senate bill passing through and another stalled, Florida politicians and attorneys have much to say about attorney fees and post- traumatic stress disorder (PTSD).

Now that HB7085 will allow compensation claim judges to award attorney fees up to $250 an hour and SB516 would require workers’ compensation claims to cover PTSD by deleting the provision that mental illness is not a physical grievance, the Sunshine State is seeing serious change.

Sen. Bob Bradley (R-Fleming Island) brought forth SB1582 with the full support of House Insurance & Banking Subcommittee chairman Danny Burgess Jr. (R-Zephyrhills), who said in April 6 live session the bill was constitutionally fair.

St. Petersburg attorney Nancy Cavey, who has practiced for 36 years, said the bill that would have imposed $150-per-hour cap on attorney fees showed her the Florida legislator does not recognize true access level to the courts.

“The Supreme court made clear to them, that minimalist fees or low hourly rates deny injured employees access to the courts. Most lawyers cannot open their office or maintain an office at $150 an hour,” Cavey said, noting her own overhead. “I have ten employees; I can hardly pay the light bill much less the payroll if I am only earning $150 per hour.”

On Monday of this week, the Florida Justice Association released a press release denouncing HB7085, which provides a reform package for workers’ compensation. In it, FJA said HB7085, “wipes out countless injured workers’ ability to afford legal help when insurance companies wrongfully deny benefits, without providing other new benefits to offset this added burden.”

On the government website, SB1582 is directly linked to HB7085. In a March 13 release Key Workers’ Compensation Reform Legislation Set for Committee Action, the justice association reports four important pillars of reform.

Among maturing “a transparent rate-making process that allows for meaningful competition,” allowing “some element of patient choice in medical care,” creating “a mid-level tier for providing benefits once the doctor determines the employee has reached Maximum Medical Improvement,” the FJA wants to “ensure that injured workers have proper access to the court by maintaining a reasonable standard for attorneys’ fees.”

Richard Chait, FJA representative, said the issue is “perceived pandemonium,” that concerns him. “Anyone comes before this committee or any subsequent committee and suggests that we have a crisis now because of attorneys’ fees and because of the rate-making process, what they’re essentially admitting is they have a business model where they’re building in the intention of denying benefits,” Chait said in the report. “Provide the benefit, you don’t have to pay the attorneys’ fee.”

If legislative members wanted real reform, they should address employee’s needs, said Ryan Banfill, communications director for the Justice Association.

“The FJA believes workers’ compensation reform should include allowing injured workers to have some choice in their health care provider,” Banfill said in an email to WorkersCompensation.com. “The reforms should also provide additional benefits to injured workers as they recover. These benefits should include additional rehabilitation benefits where appropriate.”

Cavey said the practical impact of this bill makes it almost impossible for injured employees to find an attorney who would be able to afford to represent them. According to Cavey, the employee carrier has to pay a fee if they deny a claim and they lose on the compensability in front of a judge of compensation claims.

“The employer carriers then have to pay fees based on their failure to do the very things they are obligated to do,” she said. Cavey prefers the legislator table the bill for now and work harder with a stronger bi-partisan effort. “It is practically unethical and immoral to ask an injured worker to pay an attorney fee when they are living from one workers’ compensation paycheck to another workers’ compensation paycheck,” she added. Cavey is also the three-time Chair of the Workers’ Compensation Rules Committee and past chair of the Workers’ Compensation Section of the Florida Bar.

West Palm Beach Attorney Nicholas Romanello, vice president and chief risk officer at Health First, a not-for-profit healthcare delivery system, said though he can understand Cavey’s concerns, even as an attorney, he sees the bill in a different light.

“I might take a different view because I am more akin to management rights, but I am certainly sensitive to the lawyers who have to cover their overhead with their hourly rate,” Romanello said. What really matters is the possible fraud that could come from this bill, he added.

“This promotes more suspicious type of claim activity now. If there were marginal claims not taken in the past, now lawyers take those because there is now a potential of a richer reward through an hourly rate that is higher than what it was in the past,” Romanello said.

Brewster Bevis, senior vice president of state and federal affairs for Associated Industries of Florida, said in a press release that the Justice Association’s stance was merely protection for attorneys.

“Contrary to the trial lawyers looking out for their own self-interests, Florida’s employers and employees are at the top of mind with the newly amended workers’ compensation legislation,” Bevis said on FloridaPolitics.com.

“The trial lawyers plain and simply do not like this legislation because it does not allow them to get richer on the backs of injured workers. On behalf of Florida’s business community, we look forward to seeing this legislation advance so Florida’s employees are able to get healthier at reasonable rates to Florida employers.”

FJA’s Banfill responded that the AIF is only interested in protecting employers and insurance providers.

“While we’ve worked every step of the way to offer lawmakers a helping hand with comprehensive and thoughtful suggestions, AIF and the big insurance gang have only focused on preventing injured workers from being able to hire attorneys when benefits are wrongly denied,” Banfill said.

HB 7085 passed out of committee on Thursday, April 6. Fred Piccolo, spokesperson for Speaker of the House Richard Corcoran, said the bill is scheduled to go to the floor of the House for consideration before April 26.

Bill 516 has not seen the success of HB7085, which according to Cavey is due to high-cost risk that fall on employers. “Potentially any firefighter, police officer, or first responder is a multi-million-dollar case. When you add to that the exposure of compensation of medical benefits that can be associated with PTSD, employers see an unfunded liability that they don’t know what to do with,” she said.

In a Feb.6, 2016 WorkersCompensation.com report titled FL Senate Bill 516 to Help First Responders with PTSD medical experts spoke about how the mental injury is very much physical as well and should be covered. As of April 11, the bill on behalf of first responders that was introduced by Sen. Keith Perry (R-Gainesville) remains stalled.

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