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On March 1, 2019, Senator Keith Perry filed Senate Bill 1636 (SB1636). As yet, there are no "related bills" in the House of Representatives. This is worthy of note because adoption of a new law in Florida requires passage by both the House and Senate, subject to the Governor's executive "check and balance," the veto power. It is also worth noting that the absence of a "companion" or "related" bill in the House is subject to change with the introduction of additional bills as the session progresses.
SB1636 would amend section 440.02(40) regarding "specificity." This would require
"for each requested benefit, the specific amount of each requested benefit, the calculation used for computing the specific amount of each requested benefit"
The requirement for an explanation of why the benefits are requested would now also require
"details demonstrating that such benefits have specifically been denied by the adjuster responsible . . . "
The petition for benefits would have to include
"specific allegations and statements of fact supporting the specific denial by the adjuster handling payment of benefits"
Revisions to section 440.105(3) would remove the prohibitions on payments of fees to attorneys, but would retain the other prohibitions. The phraseology of this section might suggest to some that some fees paid by injured workers to their attorneys would no longer require approval of the Judges of Compensation Claims. Others will contend instead that such would remain required, but would not be subject to sanction under this section.
SB1636 includes proposed changes to section 440.11. The main thrust of those changes appears focused upon the immunities of coworkers when each is "assigned primarily to unrelated works."
Section 440.15 is amended to remove reference to the 104 week limitation recently (2016) stricken by the Florida Supreme Court in Westphal v. City of St. Petersburg. Revision to paragraph (2)(1) clarifies that the end of temporary disability would be dependent upon "overall maximum medical improvement." This inclusion of "overall" is seemingly an acknowledgement of various judicial interpretations of the existing statute.
Changes to section 440.15(3)(d)3. create a process for payment of permanent benefits based upon an "estimated impairment rating" if the worker "has not reached overall maximum medical improvement before receiving the maximum number of weeks of temporary disability benefits described in subsection (13)." That subsection, 440.15(13), sets the maximum benefits for temporary disability (total and partial) at 260 weeks. This "combined" limitation has been discussed before on this blog. Constitutional Law in Florida 2016; Legislative Seismic Shift in Florida; Another 2017 Legislative Discussion.
There is a new section of Chapter 440 created by SB1636: section 440.1915. This would require notification of the injured worker's rights regarding attorney fees, "before engaging an attorney." A specific statement of acknowledgement in "14 point bold type" would have to be signed before an attorney could file a petition for benefits on that workers' behalf.
The bill also amends section 440.192(2). This section currently allows the "Office of Judges of Compensation Claims" to review and dismiss petitions when there are specificity deficiencies. This bill expands that to specifically allow a motion directed at such a specificity deficiency, and specifies that would be considered by "the assigned judge of compensation claims."
This specificity focus includes requirements for allegation of "the specific date of maximum medical improvement" as well as "the specific date on which such permanent benefits are claimed to begin." Also included are requirements for specifying the method of calculation used for any allegation of an erroneous average weekly wage (AWW), as well as a presumption that the employer's calculation of AWW is accurate.
The often labelled "good faith" provision of petition process, section 440.192(4) is also supplemented by this bill. The petition would have to include "evidence demonstrating such good faith attempt to resolve the dispute." Presumably, this might mean that efforts to that end would need to be in writing, such as an email or a facsimile, in order that proof of the effort could be documented. However, it is practical to presume that instead an affidavit documenting verbal communication attempts might also suffice.
This section clarifies that
"the judge of compensation claims has jurisdiction to determine, in his or her independent discretion, whether a good faith effort to resolve the dispute was made by the claimant or the claimant’s attorney."
If the judge concluded that no sufficient effort was made, the judge "must dismiss the petition," and "may impose sanctions." Those might include "assessment of attorney fees payable by the claimant's attorney." Note that this specifically mentions the attorney liability for fees as a sanction, as opposed to the injured worker.
The bill includes amendments to the provisions of section 440.20(11)(c). Some will conclude that these changes are largely cosmetic, replacing phraseology but not changing meaning. In the legislative process, there is however the potential that some court would interpret any word change as an attempt to change meaning. Some courts conclude that changes in phraseology must be for some purpose, and might search for such meaning. Others may argue that this section does make substantive changes as regards the settlement of cases.
In respect to hearings, there are changes proposed to section 440.25, specifically section (4)(h). This is the "expedited hearing" provision. This would be changed to add a requirement in expedited hearings for the pretrial statement to include "a personal attestation by the claimant’s attorney detailing his or her hours to date." This attestation:
"must specifically allocate the hours by each benefit claimed and account for hours relating to multiple benefits in a manner that apportions such hours by percentage, in whole numbers, to each benefit."
Some will perhaps wonder why this language is added specifically to the expedited hearing process, but not to the prosecution and pretrial processes for cases not suitable for expedited hearing.
Also in section 440.25(4)(j) there would be change to the attachment of attorney fee liability. That section currently says that liability for fees does not attach until "30 days" after the petition is filed. The revised language would change that to "45 business days." The amendments would also cross reference the other amendments regarding specificity, discussed above.
Amendments to section 440.34 would cap the employer/carrier's liability for attorney fees to a statutory percentage (20%/15%/10%/5%) that will be familiar to Florida workers' compensation professionals. Furthermore, retaining the language that contracts between injured workers and their attorneys need not be approved by the judge, the statute would nonetheless require that those contracts be filed with the Office of Judges of Compensation Claims (OJCC). This section would also require attorneys for injured workers to "report the amounts of such attorney fees to the judge of compensation claims."
Further revision to section (2)(a) would refine what a judge would consider in awarding any employer/carrier paid attorney fee for representation of an injured worker. There are further references in this section to specificity in petition filing, good faith efforts at resolution of the issues prior to petition filing, and a similar statement regarding the "45 business days" period.
The "alternate" attorney fee formerly in section 440.34(7) would become (5). Furthermore, that "alternative" that was previously available "only once per accident," would no longer be so limited. These "alternative" fees are specifically stated to be "in lieu of, rather than in addition to, any other attorney fees available under this section."
There are changes to section 440.491 regarding training and education. These would remove references to the former 104 week constraint on temporary benefits, and instead dovetail with the constraints added in section 440.15(13) discussed above.
The Florida legislative session begins Tuesday, March 5, 2019. It appears that workers' compensation will be a topic of discussion and a subject to watch.
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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