The topic of the day (and for months to come, maybe even years) is workers’ compensation. It seems like we are traveling back in time, and we actually are because the problem that is plaguing us was fixed in 2003 but invalidated by the Florida Supreme Court in 2016 so that we go back to the way things were in 2003. This is not true for everything in workers’ comp, but it is true for one of the
most expensive components of the system: fees charged by attorneys who represent injured workers.
These attorneys will tell us that this change is good because injured workers really need attorney representation, but I do not think the statistics support that – most injured workers are doing just fine accessing benefits in the self-executing system. These lawyers also say that they cannot help these injured workers for fees that calculate out to less than minimum wage. Okay, I can understand
that. But I’d like these lawyers to explain to us why it seems the solution is to allow them to be paid $200 to $400 per hour, especially when defense attorneys are usually earning less than $200 per hour. Why don’t these claimant attorneys propose they be paid $100 or $150 per hour? Because they did not spend years and thousands of dollars getting their attorney fee complaint to the Florida Supreme Court just to settle for reasonable fees – this is about cashing in, winning big, and hitting the litigation lottery.
So how about those injured workers – are they demanding that claimant lawyers be paid $200 to $400 per hour? Not likely. I doubt they even know anything about what their attorneys are getting paid. I think much of the attorney fee process takes place after the injured worker exits the stage, benefit in hand. And I think it is a pretty safe bet that if an injured worker knew that his or her
attorney was getting a fee four times greater than the injured worker’s benefit, it would be a problem.
Claimant attorneys are going to work very hard to keep their open-ended fees right where they had them in 2003. But they also know that with these big fees come big increases in statistics causing that arrow on the graph to shoot for the sky and making a perfect picture for a much-needed rate increase. What would you do if you were in their shoes? You would come right out of the box
shifting blame and creating confusion, hoping to take yourself out of the spotlight as long as possible so you can just keep collecting ridiculously large fees.
It seems the first step in that strategy is to attack the messenger, NCCI, because it says “charges for attorney fees are going up, up, up, so rates have to be increased to cover the cost.” Ignore the math and accuse the messenger of doing nothing more than trying to increase the profits of insurance companies. Yes, it is ironic that the group that fought all the way to the Florida Supreme Court to increase their profits is complaining that the injured worker attorney fee increase in cost to the system is for the purpose of increasing the profits of the insurance companies. That does not even make sense.
Another part of the strategy would be to make a lot of growling noises in an effort to intimidate the regulators who make the decision on whether or not to allow a rate increase. You could do that by suggesting that the Office of Insurance Regulation would be handing the insurance industry a big windfall if they approved the requested rate increase of nearly 20 percent. If your growling reduces the
increased rate below 20 percent, that changes the perception (which is everything in the world of politics) from a crisis to not enough to warrant a quick legislative fix.
Digesting all that is exhausting, and this is just the first shot. Claimant lawyers currently have the advantage, and they are not taking it for granted. Among other things, they are strengthening their public relations efforts and they are working harder than ever hoping to see their favorite candidates elected to Florida’s House and Senate. We are doing the same thing, and we will be stepping up those efforts because it is what we have to do to win. I expect this to be a very long and painful battle.
Anna Cam Fentriss is an attorney licensed in Florida since 1988 representing clients with legislative and state agency interests. Cam has represented FRSA since 1993, is an Honorary Member of FRSA, recipient of the FRSA President’s Award and the Campanella Award in 2010. She is a member of the Florida Building Commission Special Occupancy Technical Advisory Committee, President of Building A Safer Florida Inc. and past Construction Coalition Chair (1995-1997).
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