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Florida Lawmakers Are Trying To Change Workers’ Comp Regulations

florida-lawmakers-are-trying-to-change-workers-comp-regulationsBack in 2016, the Florida Supreme Court handed down two rulings regarding workers’ compensation insurance that favored the workers. That’s good news for employees all across the state, but it also means the rates for workers’ comp insurance have gone up and probably will go up further in the future. That’s why both of Florida’s legislative houses are trying to set new rules and restrictions on how workers’ comp can pay out.


 What Makes Workers’ Comp Important


Workers’ compensation is a kind of insurance employers both big and small need to buy to protect the health and safety of their employees. Workers’ comp is a “no-fault” policy, which means it pays out no matter why the worker became injured. It could be the employer’s fault, it could be that someone outside the company did something, or it could be the worker’s own negligence: so long as the injury happens on the job, workers’ comp will cover at least part of the medical bills and part of the wages from missed work.

The reason workers’ comp is no-fault is because the previous system of determining fault strongly favored the employers. Under a typical law, workers would not only have to prove the employer was negligent in letting a dangerous situation happen, they’d also have to show that the employer didn’t make them sign away their rights to sue in a waiver as part of the employment contract. And this is on top of the fact that employers almost always have more money and resources to throw at lawsuits and legal red tape than their employees.


What Changed In 2016


In 2016, the Supreme Court changed the way Florida workers’ compensation worked. The first case was Castellanos v. Next Door Company, a suit about the unfair fees awarded to a worker’s attorney. The fees set down by Florida law had nothing to do with the amount of hours a law firm might have to put into a given case, and so in a case with a low payout and a lot of resistance a lawyer might end up working for much less than minimum wage. Since this left many workers without legal help, the court ruled the pay caps unconstitutional.

The second case was Westphal v. City of St. Petersburg. This was about the payment limits of temporary total disability, a category that covers people who can’t work at all but whose condition is improving. A recent change to the law had reduced the temporary total disability payments from 260 weeks (around four and a half years) to 104 weeks (just under two years).

This left a lot of people out in the cold, especially since temporary total disability can end with a permanent partial or total disability once their condition stabilizes, but they don’t get to switch categories until that point. So the Supreme Court ruled in favor of restoring the older, longer payment period.


What The Legislators Are Doing


Each house of Congress has created its own workers’ compensation bill to address the problem of rising rates. The House bill sets new limits on how long certain payment periods are and how much policies can pay out for different procedures and treatments, and the Senate bill includes language encouraging all parties to come to a reasonable and amicable settlement. But the thing everyone’s talking about is a new restriction on attorney payments.

Attorney fees for workers’ comp cases have jumped quite a bit since the Supreme Court ruling, and while part of that comes from certain law firms taking advantage of the situation, a big part is the simple fact that the fee limits were unreasonably low before the ruling. But to keep legal fees under control, the House bill has set a cap of $250 per hour while the Senate prefers a more restrictive $150 hourly rate.

On top of that, the House bill almost required both sides to pay their own attorney fees no matter how the court ruled, but since workers’ comp cases are almost always the worker versus a big insurance company the amendment died in committee.

It’s still up in the air how many new rules Florida lawmakers will put in place to respond to the Supreme Court, and the hourly fee limits might turn out to be just as unconstitutional as the old payment schedules. But either way, it’s clear that the legislature is taking a pro-business stance to compensate for the court’s pro-worker rulings.

Attorney Stephen Fernandez

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