Once again the Republican led Florida Legislature is in session and is considering measures designed to prevent injured workers from obtaining the benefits they need and are supposedly entitled to under the Florida Workers Compensation laws. 

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.