Thursday, May 4, 2017

The 2017 Session is Ending - What will be the Final Word?

The Senate is expected to take up workers’ compensation today in Tallahassee. No one can say for sure what will occur. As late as yesterday, WorkCompCentral was reporting that two “sticking points” were in negotiation between members of the legislature: “amount at which attorney’s fees would be capped” and “the state’s rate-making system.” This overnight analysis suggests that there are more differences under consideration. 

I have been in a Tom Petty mood all week. The lyrics that keep running through my head this week, from 1981, are 
The waiting is the hardest part
Every day you see one more card
You take it on faith, you take it to the heart
The waiting is the hardest part
The Florida legislature has been debating and discussing workers’ compensation all year. That has not been the only topic, with personal injury protection, public records, gambling, budget and more also drawing attention. But workers’ compensation has been there throughout. And, there have been a fair number of interesting conversation starters.

The focus from the outset has been upon the effects of some intriguing court rulings in 2016. By now, the world is well-familiar with names like Castellanos, Miles, and Westphal. Those rulings, whether personal perspective brought praise, or derision, or even ridicule, have been on the tongues of Florida’s workers’ compensation community for the last 12 months. 

In December, the community was awakened by publication of a proposed bill by Representative Byrd, which would have made Florida an “Opt-In” state like Texas. That bill was never filed, but it started some conversations. 

Valentine’s day brought a proposal from Associated Industries of Florida. The result of a long effort by a task force named last summer, the proposed bill required greater specificity in pleading, changed “days” to “business days” in various statements, focused upon “good faith” efforts to resolve disputes, and would have made injured workers pay their own attorney fees. It was discussed at length in An Act Relating to Workers’ Compensation in February. 

March brought more concrete discussion with release of a memo described in Legislative Discussion.Within a few days, Senate Bill (SB1582) was introduced, More Comp Discussion. It brought requirements for greater specificity, a cap on claimant’s attorney fees ($250.00 per hour), and “loss cost rate-making.” Many have embraced “loss cost” as the "be all and end all" solution to the sometimes contentious nature of Florida’s workers’ compensation insurance rate-making. Others have argued that “loss cost” would change little if anything, and refer to it as a "distraction." 

On March 21, 2017 the Florida House introduced House Bill (HB) 7085. This was very similar in substance to that memo described in Legislative Discussion. This HB started its life as a “proposed committee bill,” which meant that the proposal was the product of a significant group, not a single author/sponsor. When that effort morphed into HB7085, the sponsor was Representative Burgess, Chair of the Insurance and Banking Subcommittee that had drafted it. 

HB 7085 moved through the committee process reasonably rapidly, and was ready for a House chamber vote on April 12. Debate included a variety of proposed amendments on April 18 and the bill passed as amended April 19 (82 yeas, 37 nays). It was sent to the Senate on April 20, 2017. Because the bill was dissimilar to SB1582, there was much conjecture as to how the Senate would react to HB 7085. And, that is when I started hearing Tom Petty in the back of my head. 

The Senate continued working on SB1582. It was approved by the Senate Rules Committee on April 19, and referred to the Senate for a chamber vote. On April 27, it was listed on the “Special Order Calendar” and many thought the waiting would soon end. No one would guess (out loud at least) what the Senate would do (take up SB1582 from committee, take up HB7085 as passed, amend one or the other, etc.), but some felt that we would soon know. The Senate has temporarily passed the bill since. 

Late on May 3, 2017 two amendments were posted by Senators, regarding HB7085, one by Senator Bradley (sponsor of SB1582) and one by Senator Brandes. Some believe that these filings portend a conclusion to the waiting, as we are poised today on May 5, 2017 on the eve of this legislative session’s conclusion tomorrow. 

Senator Bradley’s amendment (filed at 4:45 p.m.) would change HB7085’s definition of “specificity” slightly. The current bill requires “the calculation used for computing the specific amount of each requested benefit,” and the amendment would change that to “computing the requested benefit.” This amendment would change section 440.093 by deleting a reference to “period of 104” weeks and substituting “maximum number of weeks.” It changes words in section 440.105 but this change from the HB is not substantive. 

The HB includes a change to the “three member panel.” It slightly alters appointment to the panel. The appointments remain the Governor’s responsibility under the HB, but the bill says if the Governor does not appoint a new member within 120 days of a vacancy, then the Chief Financial Officer (CFO) shall appoint. The HB has no provision for the possibility that the CFO might not do so. The Bradley amendment adds that if the CFO fails to fill the vacancy in another 120 days, then the authority reverts to the Governor. 

The HB deletes language from section 440.13(12)(a)2. regarding hospital inpatient reimbursement allowance (lines 185-200). It would also add language to (12)(b) (lines 201-208), while deleting the existing (12)(b) language. The Bradley amendment would leave the (a)2. language intact and would not change subsection (12)(b). The Bradley amendment would also not change outpatient surgery reimbursement as is currently in the HB (lines 229-285). The Bradley amendment would remove a restriction on dispensing physicians in the current HB (lines 308-315).

The HB and the amendment both address entitlement to temporary benefits. A new section 440.15(13) sets the entitlement to combined temporary benefits at 260 weeks. Following the Court’s decision in Westphal, Questions Remain regarding how many weeks of entitlement resulted. Ambiguity in the Court’s opinion led to those questions and conjectures, and both the HB and Bradley amendment answer the questions. 

The HB adds a section 440.1915 that requires an injured employee to acknowledge her/his understanding of potential attorney fee liability. The Bradley amendment removes that requirement. Consistently with that change, the Bradley amendment removes a requirement in section 440.192 that such attestation be attached to petitions for benefits. 

The HB enhances the responsibility of Judges of Compensation Claims (JCC) to review Petitions upon filing, using “independent discretion,” and to dismiss Petitions in which “good faith effort to resolve” disputes is not demonstrated. Injured workers can be sanctioned for failure to act in good faith before filing a petition, including attorney fees in the HB “not to exceed $150 per hour.” The Bradley amendment would change that “$150” to “$200.00.” per hour. Both the HB and the proposed amendment put time constraints on the JCC to rapidly decide motions to dismiss. 

The HB and the amendment require filing an attestation of attorney hours in all cases “at least 5 days before the final hearing.” This would presumably be a detailed accounting of what time was related to what claimed benefits for that trial. The Bradley amendment would remove this accounting requirement for expedited final hearings in section 440.25(4)(h).

Both the HB and the Bradley amendment require the filing of attorney fee retainer agreements, and clarify that these contracts need not be approved by the JCC, correcting confusion from the Court in Miles (the court made references to such approval despite statutory language that states such approval is not appropriate). 

Both the HB and the amendment remove language from section 440.24(4) that previously exempted attorney fees payable by injured workers from the protections of section 440.22. That section prevents collectors from attaching injured worker's benefits, and attorney fees had been exempt from that protection. But, the HB and amendment remove that exemption. 

The Bradley amendment clarifies and further delineates issues for which attorney fees are not due under section 440.34 (lines 444-455 of the amendment). The Amendment uses different language in excluding some time expended from “attorney hours” defined in section 440.34(5)(a)1. (lines 821-826 of the HB and lines 519-523 of the amendment). 

The HB defines a new term, called the “departure fee” in section 440.34(5)(a)3. A departure fee is allowed by the HB when the “statutory fee” in section 440.34(1) is “less than 40 percent of greater than 125 percent of the customary fee.” The Bradley amendment would change the lower percentage from 40% to 60% (including a larger portion of fees in the population for which "departure" is allowed). Both the HB and the amendment provide for the JCC to address the hours claimed using “independent discretion” and to “independently determine.” The amendment may be less clear on the application of that discretion in some contexts. Both also allow the Judge to rely on “attorney fee data on file with the” OJCC or The Florida Bar. 

The “factors” to be considered by the JCC in setting a fee under the “departure fee” language is similar in the HB and the amendment. And, each includes a “reconsideration” of the “departure fee” if the volume of hours awarded to the claimant’s attorney exceed “125 percent of the number of hours the” opposing counsel devoted. In that event, the employer/carrier may request reconsideration, the fee order must be vacated, the fee issues assigned to a different judge, and “reviewed de novo” (meaning not bound by the initial judge’s determinations) “upon the existing record” (meaning the second judge would not hear new evidence), and the final fee order would have to be issued within 30 days of that review. Under the HB, the maximum hourly rate for such “departure fees” would be $150.00 per hour. The Bradley amendment changes that to $200.00 per hour. 

The HB retains and broadens the section 440.34(7) “alternative” attorney fee for “disputed medical only claim(s).” This had existed in the statute since 2003. The HB made the provision more generous, as it was previously limited to one such fee per claim, but that restriction is removed. The Bradley amendment changed the $150.00 per hour limit on such “alternative” fees to $200.00 per hour. 

Both the HB and the amendment require greater specificity in employer/carrier reporting of defense attorney fees in section 440.345 (lines 945-953 of the HB). Both the HB and the amendment make changes to section 627.211 regarding some opportunity for departures from the state insurance rate. An insurance carrier (“member or subscriber”) may there under “depart from the filings made on its behalf by a rating organization.” The departure may be a decrease of up to ”5 percent” for a period of “12 months.” This is purported to afford the carriers in Florida with flexibility in lowering rates through competition, an argument made to support the concept of “loss cost” discussed above. 

Senator Brandes filed an amendment on May 3, 2017, at 7:34 p.m. It is not an amendment to the HB, but would amend the Bradley Amendment by deleting lines 359-636. It therefore would not change, from the discussion above:
Specificity, section 440.02
Three Member Panel, section 440.13(12)

Hospital and outpatient reimbursement, section 440.13(12)(a) and (b)

Temporary disability, section 440.15Specificity and “good faith,” section 440.192
Senator Brandes’ Amendment would limit the hourly rate on fees potentially payable by an injured worker to $150.00 per hour from Senator Bradley’s $200.00, under section 440.192. The Brandes amendment would return the section 440.34 limits on hourly rates from the Bradley amendment $200.00 per hour to the $150.00 per hour in the HB.

UPDATE May 4, 2017 - Senator Brandes filed a second amendment to the amendment at about 8:20 on Thursday. The main focus of that second amendment seems to be the re-insertion of the HB language regarding the claimant acknowledgement of fee responsibility, discussed above. 

UPDATE May 4, 2017; 2:30 - Senator Rodrigues filed an amendment to the amendment at about 11:51 on Thursday. This appears focused on substituting the language in SB1582. 

It is very likely that today will tell much. The waiting has been difficult this year; I expect that has been more true for others. My interest, of course, is in what the new workers' compensation law may require in terms of electronic filing, programming, possible rule changes, and logistics. Perhaps my curiosity (pronounced "anxiety") is not on par with others in the workers' compensation community who have more substantive interests in the law. But, the waiting has nonetheless been hard this year. What will the Florida Senate do today, adopt the Bradley amendment as filed, adopt the Bradley amendment as amended by the Brandes amendment, temporarily pass the bill again, vote on the HB as presented by the House? 

It will be an interesting day indeed; "The waiting is the hardest part."

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