Every year, approximately 70,000 Floridians, hard working men and women of this state, find their lives suddenly altered by an debilitating injury on the job.  Our current Workers Compensation Law has been shaped and molded by business and insurance interests so that they have control over the provision of medical care and wage-loss benefits to injured workers.  Florida Law gives the employer and their insurance carrier the right to choose the doctors without any input from the injured worker.  Behind closed doors, the insurance adjuster and their attorneys may have discussions with the doctors to encourage them to refrain from ordering tests, prescribing treatment or placing the injured worker temporarily out of work (any of which would cost the insurance company money).   Often, the injured worker is denied benefits without even an explanation.

Florida currently has a law (until July 2009 when the new law takes effect) that allows an injured worker who’s benefits have been wrongfully denied to hire an attorney to help them get these benefits.  If successful, then the insurance company has to pay a “reasonable” fee to the attorney who represented the injured worker.  The word “reasonable” in the law allowed the Judge in the case to award a fee that takes into consideration such things as the time and effort necessary to handle the case, the difficulty of the case, the likelihood of success and other issues that should be considered when determining what a “reasonable” fee would be.   Removing the word “reasonable” and putting an inadaquate fee schedule in its place (that bears no relationship to the time and effort necessary to handle the case) will in many cases result in a fee too small for any attorney to accept leaving the worker at the mercy of the insurance company.

The Florida Workers Compensation Law is an extremely complex statute.  Without the assistance of an experienced attorney, an injured worker has virtually no chance against the insurance company and their experienced lawyers.  To demonstrate the unfairness of this new act, business interest groups made sure that HB 903 would only limit fees that the injured workers’ attorney could recover but would have no effect on fees that could be paid to their attorneys.  They knew that if the law applied equally, they too would not be able to find an attorney to represent their interests in many cases.

On May 29th 2009, Governor Charlie Crist signed into law HB 903 which was created to protect the insurance company’s profits by allowing them to deny legitimate claims without the fear of significant consequences.  As of the date of this editorial, I have not seen or heard any explanation directly from the Governor explaining his reasons for signing the Bill, however, I suspect that the reason for remaining quiet is simply the fact that he is ashamed of what he has done.  Intellectual dishonesty is nothing new to Florida politics but stop calling yourself the Peoples Governor.  Charlie Crist, what you did was worse than cowardly.  Knowingly signing into Law a bill that will hurt tens of thousands of Floridians just to advance your own career is despicable.  You have proven that you lack the moral courage and integrity to be a real leader.

Under the current law, the insurance company has to pay a “reasonable” attorney fee to the attorney representing an injured worker only when it is determined that the insurance company wrongfully withheld benefits and the workers attorney was successful in obtaining those benefits. 

The new law applies only to fees paid to the injured workers attorney and does not in any way limit the fees that can be charged or collected by the insurance companys’ attorneys.  The cap placed upon fees the insurance company may have to pay to the injured workers attorney for wrongfully withholding benefits is limited to 20% of the first $5,000 in benefits, 15% of the next $5,000 in benefits and 10% of the remaining benefits obtained (if the benefits are payable for more than 10 years then the fee is reduced to 5% of benefits beyond 10 years).  Because of the procedural requirements of Florida’ Workers Compensation Law, the average claim takes a competent attorney 40-50 hours to complete.

As an example of how the new law would apply, if the injured worker was denied advised by his or her doctor to remain out of work for 4 weeks, but the insurance company decided not to pay the wage loss type benefits (referred to as temporary total disability benefits) then the worker would need to hire an attorney to help him/her get these benefits.  If the weekly amount that the worker should have received was $500 then the total due is $2,000 ($500 x 4 weeks).  Applying the fee schedule above to the benefits that are due will result in a fee of $400 paid to the workers attorney for 40-50 hours of work.  That comes out to $10 or less per hour.

Business and insurance interests in Florida loudly applauded Governor Crist’ decision to remove the word “reasonable” from the law for two reasons.   First, by preventing the injured workers attorney from collecting a reasonable fee in many cases, the injured worker may not be able to find legal representation to fight back when the insurance company denies benefits.  Second, the insurance company knows that even if the worker can find an attorney who wins the case, the fee they will have to pay that attorney will often be insignificant. 

Proponents of the law claim it will save money and keep rates low.  However, most experts agree that the new law will encourage insurance companies to deny more legitimate claims.

Although George Bush is gone from the political scene, many who think like him are still members of the Florida Legislature.  Individuals such as Anitere Flores, a Republican member of the House of Representatives for District 114 in Miami, Seth  McKeel, Republican member for District 63 in Lakeland,  Dave  Murzin, Republican member for District 2 in Pensacola, Trudi  K.  Williams,Republican member for District 75 in Ft. Myers are just a few of the examples of  Florida’ lack of intellectual leadership.

These individuals sponsored HB 903, a piece of legislation whose sole purpose is to remove the word “reasonable” from a law designed to protect injured workers.  The law in question is the Florida Workers’ Compensation Act and the part that will be affected by HB 903 is the part that allows an injured worker whose benefits are being wrongfully withheld by the insurance company to hire an attorney to help them get those benefits.  Under the current law, the insurance company has to pay a “reasonable” attorney fee to the attorney representing an injured worker only when it is determined that the insurance company wrongfully withheld benefits and the workers attorney was successful in obtaining those benefits.  If the insurance company provides the injured worker with the benefits that the law requires when they are supposed to,  they never owe any attorney fees or costs to the injured worker or their attorney.  But of course, the wealthy and powerful business and insurance lobby has descended upon Tallahassee once again seeking out politicians who are willing to serve the interests of the haves and have-more’s like Flores, McKeel, Murzin, and Williams.

These politicians know that if they can succeed in removing the word “reasonable” from the law then employers and their insurance companies can do what ever they wish to injured workers and not worry about the consequences.  There are almost 16 million people who live in this state and each year approximately 70,000 are involved in work accidents.  Bills like HB 903 are a complete disgrace to the citizens of Florida as are intellectually dishonest legislators who sponsor them pretending that they need to reduce costs to keep insurance affordable (without mentioning that the insurance companies do not have to pay any fees or costs if they simply follow the law).  For ignoring those minor distractions like common sense, honesty and decency, and for sponsoring a law designed to protect only the wealthy and powerful interests in this state, the fine group of legislators named herein (and many others in the House and Senate) have earned a big congratulatory thumbs up from their hero and mentor, George W. Bush!

Although a worker is still entitled to medical care and treatment when injured on the job, the compensation or money benefits for lost wages and impairment are no longer available if the worker does not report his or her income to the IRS.

Ordinarily an injured worker may receive money when he or she is prevented from working due to a job related injury.  The amount a worker gets depends upon the “wages” he or she earned during the 13 weeks before the accident.  In the Fast Track Framing case, the court said that Florida law defines the term “wages” to mean only “wages earned and reported for federal income tax purposes on the job where the employee is injured”.  Therefore if no earnings were reported by the injured worker during the 13 weeks before the accident then there are no “wages” to be used to calculate money benefits that would normally be due to the injured worker.

I some cases the benefits lost by these workers maybe a few hundred or few thousand dollars, but in others, where the injury may be catastrophic and lead to total disability or death, the benefits lost could be in the hundreds of thousands.

Attorneys who represent injured workers argue that such a harsh result unfairly penalizes the injured worker especially when there is ample proof of the amounts paid by the employer and received by the employee as compensation for work performed.  Arguably, this law promotes employer misconduct as it provides a financial incentive for an employer to hire illegal workers or to pay workers “off of the books” so that they probably won’t report that income and be eligible for benefits when injured on the job.

This legislation will remove the word “reasonable” from that portion of the statute that defines what kind of attorney’s fee an injured worker’s attorney could receive, if and only if, that attorney successfully prosecutes a claim that the insurance company wrongfully denied. What will be left of the statute is an attorney’s fee award that is unreasonably low, as was the case involved in the Emma Murray case wherein the Florida Supreme Court voted 5-0 last October to interpret the statute to allow the attorney to recover a reasonable fee from an insurer when the lawyer prevails on a denied claim, or unreasonably high when little time is invested but the benefits are very high.

 Since the level of benefits available to an injured worker has been systematically reduced since 1989, the odds of an unreasonably high attorney’s fee being awarded will be remote, while unreasonably low attorney’s fee will be commonplace. Meanwhile, the insurer will have unfettered freedom to pay its own lawyer whatever amount is mutually acceptable to the insurer and the attorney. Even though what many of us would deem to be a small amounts of benefits, those benefits will be of paramount importance to injured workers. But, simple business judgment based on logic and math dictates that there will be many lawyers who will choose not to represent most injured workers.

The Legislature knows that enacting these changes will merely postpone the eventual Supreme Court ruling that the amendment is unconstitutional, but it may take many months, if not years before the case will make its way to the Supreme Court. Meanwhile, the law will leave many injured workers at the mercy of insurance company whims, for the miserly benefits that should be available are unattainable without assistance of counsel in a complicated and incredibly regulated system. This proposed law is not borne of a business concern so much as it is an insurer’s concern. A recent report from The Office of the Consumer Advocate tells us that insurers have been over-charging businesses for workers’ compensation insurance for the past 5 years, yet that report is being ignored and the Legislature is doing nothing to hold these insurers accountable to the people of this great state!

It doesn’t seem to matter to these elected officials of the majority party, (today that party being Republican) that what they are doing is both morally and legally wrong. They, like sheep are following their leader, right off a cliff of legal disaster. Insurance interests dictate what these elected officials will do, and with utter disregard for human dignity that is often stripped from injured workers. No other form of insurance is provided this kind of immunity and impunity for wrongfully withholding benefits that should be provided.  All other forms of insurance require claims to be handled in “good faith”, and if not, the insurer can be sued and “reasonable” attorney’s fees are awarded when “bad faith” handling is proven.

If this law is passed by the legislature, and signed into law by Governor Crist, worker’s compensation carriers will have no incentive to do the right thing, or handle claims in “good faith”. Rather, they will be given impunity for handling claims in “bad faith”, because injured workers will be effectively barred from hiring an attorney to force insurers to provide the benefits under the law. How our Legislature could leave the physical health and financial status of the good people of this state to the mercies of insurers is beyond my understanding and frankly, I think legislators who votes for this proposed law will have be traitors to the very people who sent them to Tallahassee.

Monte R. Shoemaker

Monte_Shoemaker@Earthlink.net.  An attorney who has represented the interests of injured workers in Central Florida for more than 20 years.

Payments include $97,231 to12 employees at New China Buffet (Lake Worth), $58,849 to 18 employees of Kamado’s Japanese Seafood Buffet (Pembroke Pines) and $77,154 to 25 employees of Dragon Gourmet Buffet (Plantation).

Investigators found that the restaurants violated minimum wage, overtime, and record keeping provisions of the Fair Labor Standards Act (FLSA). The employees waited on customers, cleared tables, cooked, washed dishes and performed other tasks at the establishments.

“The Labor Department is dedicated to enforcing federal minimum wage and overtime laws to protect employees in this labor-intensive industry,” said Will Garnitz, director of the Wage and Hour Division’s district office in Miami.

The FLSA requires that covered employees be paid at least the federal minimum wage for all hours worked, and time and one-half their regular rates of pay for hours worked over 40 per week. Employers must also maintain accurate time and payroll records.

The federal minimum wage for covered, nonexempt employees is $6.55 per hour. Effective July 24, 2009, the minimum wage will increase to $7.25 per hour.

The Labor Department’s Wage and Hour Division concluded 30,467 compliance actions and recovered a record $220 million in back wages for more than 341,000 employees in fiscal year 2007. Back-wage collections in fiscal year 2007 represent a 67 percent increase over back wages collected in fiscal 2001. The number of workers receiving back wages has increased by 58 percent since fiscal year 2001.

For more information about the FLSA, call the department’s toll-free helpline at 866-4US-WAGE (487-9243), visit the Internet at www.wagehour.dol.gov or contact the Wage and Hour Division office in Miami, Sunset Center, 10300 Sunset Drive, Room 255; phone: 305-596-9874.

 Press Release From U.S. Department of Labor Wage and Hour Division Release Number: 08-1826-ATL (002)

When the Workers Compensation laws were enacted the idea was to have a system in place that would allow those injured on the job to have immediate access to medical care and wage loss benefits without having to prove negligence or fault.  In exchange for this no-fault system the employer (and co-employees) are granted immunity from civil lawsuits if they were to blame for the accident or injury.  This compromise allows businesses to operate without the constant disruption or uncertainty that a civil lawsuit would cause and provides immediate benefits to injured workers that might take years to receive if they had to pursue civil litigation.

The problem arises when the benefits sought by the injured worker are denied by the employer or their insurance carrier.  When this occurs, the injured worker is faced with a problem that he or she is unable to workout themselves.  The laws describing the rights, duties and obligations of the employer, insurance carrier and the injured worker are contained in Chapter 440 of the Florida Statutes.  An unrepresented worker is up against the impossible task of  having to read and understand this very long and complex statute.  Additionally, to present the case, he or she would still have to learn the Rules of Evidence and Rules of Procedure For Workers’ Compensation Hearings.  As if that wasn’t enough, there are thousands of pages of legal opinions interpreting the application of these rules and statutes that have been written by the Judges of our Appellate and Supreme courts that must be analysed and applied to the issues, claims and defenses raised at trial.  An unrepresented worker has virtually no chance of preparing and presenting their own case in a competent manner. 

The Florida Supreme Court recently decided the case of  Murray v. Mariner Health and ruled that in its current form, the Florida Workers’ Compensation Act allows an attorney who represents an injured worker to recover a reasonable fee from the employer or insurance company if that attorney is successful in obtaining benefits that were wrongfully withheld by the employer or insurance company.  If the attorney loses, they get no fee for their time and effort.

On Monday, February 16, 2009 Anitere Flores, a Republican member of the House of Representatives for District 114 in Miami, sponsored HB 903 which seeks to reverse the Supreme Court’s ruling in Murray v. Mariner Health.  The Bill sponsored by Flores seeks to cap attorney fees to a scheduled amount that in many cases would result in a fee too small to compensate the attorney for the time and expense necessary to get the workers compensation benefit.  If the bill succeeds and eventually becomes law the result will be devastating to many injured workers in Florida who will be left with no ability to obtain workers compensation benefits which have been wrongfully denied.  Even a case where the facts are relatively simple and straightforward may take an experienced attorney at least 40 hours to prosecute.

While this schedule may be adequate when the benefits fought over are valued in the tens or hundreds of thousands of dollars, what happens to the case where the injured worker is instructed to remain out of work by the doctor he is sent to by the insurance company and yet the insurance company is not sending him any compensation benefits to pay for his lost wages.  If that worker was entitled to $400 dollars a week and was out of work for 3 months he lost $4,800 dollars in benefits.  An Attorney who agrees to try to get that benefit for the injured worker will likely spend at least 40-60 hours (and $750-$1,500 in costs advanced by the attorney) working on the case.  And that assumes that the case is limited in scope to one or two simple legal or factual issues that must be decided by the Judge at trial.  If the attorney for the injured worker wins the case his fee pursuant to the above schedule will be $960 for 40-60 hours of work or $16-$24 per hour (if the case is lost the attorney recovers nothing for his time and usually his costs as well).  Even the cost of operating the attorney’s law office is more than double the hourly rate he or she would receive for winning this case.  Experts agree that the passage of HB 903 or any bill similar to it will only encourage insurance companies to take advantage of the injured worker by denying legitimate claims knowing that the likelihood of litigation is reduced significantly and, in addition, if litigation does result and they lose, the fees they are responsible to pay are minimal.

Over the last several years, our Republican  legislators have stripped away many of the benefits injured workers once had, turned over control of  medical care to the insurance companys and are now trying to pass legislation to prevent injured workers from securing legal representation when they choose to deny and wrongfully withhold benefits.  Representitives like Anitere Flores obviously don’t care what happens to the working men and women in Florida.  It’s time for Floridians to do in their state what the rest of the country did last November, choose new leadership.

During the Jeb Bush years, Florida’ Workers Compensation Laws were rewritten giving employers and insurance companies greater control over the injured workers access to medical care and further limiting the benefits that workers could qualify for.  Additionally, the legislature made changes to the law which were designed to discourage attorneys from accepting representation of injured workers.  Since October 1, 2003, when that law went into effect, many injured workers were unable to find attorneys to help them get workers compensation benefits when the insurance company chose to deny the claim.  Jeb Bush and the Republican led legislature placed no restrictions upon the employer or their insurance company’ ability to hire legal counsel to defend claims.

Recently, however, the Florida Supreme Court ruled that an attorney who successfully represented an injured worker against an employer or insurance company who wrongfully withheld workers compensation benefits may receive a reasonable fee for the work performed.  This ruling immediately prompted Anitere Flores, a Republican member of the House of Representatives for District 114 in Miami, to sponsor HB 903 which seeks to reverse the Supreme Court’s ruling.

The Bill sponsored by Dan Gelber would allow injured workers the ability to hire  knowledgeable attorneys to help them get the benefits they need and are legally entitled to.  Additionally, Gelber’ Bill also gives injured workers some limited additional compensation benefits while they receive vocational training.  The additional benefits allow a worker, who is unable to continue in his or her usual occupation because of the work accident, to receive some financial assistance to help pay for their living expenses while receiving education and retraining that will assist them in returning to the work force.

The lobbyists for big business and insurance companies are quick to argue that the restrictions they want to impose upon the workers rights to hire legal help are necessary to keep down costs.  In reality, however, the law only requires the employer or insurance company to pay for the worker’ attorney fees when the benefits were wrongfully withheld.

The Bill sponsored by Flores seeks to cap attorney fees to a scheduled amount that in many cases would result in a fee too small to compensate the attorney for the time and expense necessary to get the workers compensation benefit.  If the bill succeeds and eventually becomes law the result will be devastating to many injured workers in Florida who will be left with no ability to obtain workers compensation benefits which have been wrongfully denied. 

To understand how HB 903 could prevent injured workers from receiving benefits they may be entitled, to one must first understand the legal process that the worker is required to follow when benefits are denied.   

The rules for obtaining Florida Workers Compensation benefits wrongfully withheld by the employer or their insurance carrier are complex and time consuming.  First, a Petition For Benefits must be properly filed and must meet all of the legal requirements outlined in the Florida Statutes.  Next, discovery must take place meaning that both sides will obtain documents and take depositions of witnesses to determine if the benefits are actually due.  In almost every case the employer (if self insured) or their insurance company will hire an attorney who will quickly schedule the deposition of the injured worker to question him or her about their background, education, prior work experiences, prior injuries and medical conditions, the facts and circumstances of the present work accident, accident related injuries, medical treatments, etc.

If the benefits are being denied because the employer or their insurance company does not believe that an accident occurred, then witnesses will have to be located and questioned under oath to verify the accident.  Sometimes the denial is based upon the insurance companys’ belief that the injuries complained about by the worker are not really caused by the accident (or working conditions) on the job.  If that is the case, then medical experts must be hired to examine the worker and testify in person or by deposition regarding their opinions.  Cases that involve complex medical issues may require research into Occupational Medicine and Epidemiology studies which can be expensive and extremely time consuming.

One of the most important factors which will determine how much time and effort is necessary to proceed with a claim for benefits is the employer or insurance companys’ commitment to defending against it.  If the insurance company decides to fight the claim and instructs their attorneys to vigorously defend, then the insurance companys’ attorneys will examine every aspect of the workers life and prior medical history in great detail.  This means that both sides will have to obtain and review more medical records and attend more depositions which greatly increases the time and effort required by the workers’ attorney too.  The gathering of information by taking depositions, subpoenaing medical records, obtaining documents from each party, etc. is called discovery.  In addition to taking discovery, Florida law requires that the parties try to settle their issues by the process of Mediation before trial. 

The Mediation process requires the worker and his attorney to appear in person at the State Workers Compensation office and be thoroughly prepared to negotiate and resolve the issues if possible.  If the parties cannot reach an agreement to resolve the issues, then the Court will schedule a Pre-Trial and Final Hearing or Trial date.  The process of preparing for a Pre-Trial requires each side to carefully review all of the medical records, medical issues, claims and defenses, factual, legal and procedural issues and prepare a document for the court that will serve as an outline for the Trial.  The document is several pages long and describes among other things, the claims, defenses, jurisdiction over the parties and subject matter, agreements of the parties, a list of witnesses and exhibits to be offered at trial.  A case may be won or lost based upon the preparation of this Pre-Trial document (called a Pre-Trial Stipulation) so both sides must spend time to prepare it correctly and in accordance with the law.

If the employer or the insurance company insist upon going to trial then an additional document called a Trial Summary must be prepared and submitted to the Court at least two full business days prior to the final hearing.  The Trial Summary is a memorandum consisting of a statement of relevant facts and written arguments.  At trial each side must present their case in accordance with the rules of evidence under Florida Law.  If all of this sounds confusing and very time consuming that’s because it is (not to mention costly).  It is virtually impossible for the injured worker to represent themselves in a competent fashion.  To make matters worse, the insurance company can afford to hire the best defense attorney to represent them as there is no limitation on the amount the employer or their insurance company can spend to fight a claim made by an injured worker.  Even a case where the facts are relatively simple and straightforward may take an experienced attorney at least 40 hours to prosecute.

The legal cap on attorney fees being sought by R. Flores in HB 903 would limit only attorney fees payable for representing the injured worker to the following schedule: 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years.  Again, there is no limit on what the attorneys who represent the insurance company can charge for their services.

While this schedule may be adequate when the benefits fought over are valued in the tens or hundreds of thousands of dollars, what happens to the case where the injured worker is instructed to remain out of work by the doctor he is sent to by the insurance company and yet the insurance company is not sending him any compensation benefits to pay for his lost wages.  If that worker was entitled to $400 dollars a week and was out of work for 3 months he lost $4,800 dollars in benefits.  An Attorney who agrees to try to get that benefit for the injured worker will likely spend at least 40-60 hours (and $750-$1,500 in costs advanced by the attorney) working on the case.  And that assumes that the case is limited in scope to one or two simple legal or factual issues that must be decided by the Judge at trial.  If the attorney for the injured worker wins the case his fee pursuant to the above schedule will be $960 for 40-60 hours of work or $16-$24 per hour (if the case is lost the attorney recovers nothing for his time and usually his costs as well).  Even the cost of operating the attorney’s law office is more than double the hourly rate he or she would receive for winning this case.  Experts agree that the passage of HB 903 or any bill similar to it will only encourage insurance companies to take advantage of the injured worker by denying legitimate claims knowing that the likelihood of litigation is reduced significantly and, in addition, if litigation does result and they lose, the fees they are responsible to pay are minimal.

On the other hand, the insurance industry argues that allowing the injured worker’ attorney to recover reasonable fees will increase the cost of providing workers compensation insurance coverage and will harm businesses.  Again, experts disagree on this point as the law only allows the worker’ attorney to recover a fee against the insurance company if the attorney wins the case and proves that the benefits claimed were wrongfully withheld.  Simply put, don’t withhold the benefits due to the injured worker and no fee will be due at all.

“When designing pay policies, employers must meet the requirements of both federal and state labor laws. Employers should never implement a pay system that circumvents FLSA regulations,” said Will Garnitz, director for the Wage and Hour Division’s Miami District Office.

To determine the amount of back wages owed, investigators reconstructed work hours, since the employer did not keep accurate time records of its employees. The investigation covered the period from November 2005 through November 2007.

The FLSA requires that covered employees be paid at least the federal minimum wage, and time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked over 40 per week. An employer of a tipped employee is only required to pay $2.13 per hour in direct wages if that amount combined with the tips received at least equals the federal minimum wage. If the employee’s tips combined with the employer’s direct wages of at least $2.13 per hour do not equal the federal minimum hourly wage, the employer must make up the difference. To qualify for an exemption from FLSA, employees generally must meet certain job duty and salary tests. Employers must also maintain accurate time and payroll records.

For more information about the FLSA, call the department’s toll-free helpline at 866-4US-WAGE (487-9243)