Two legislative sessions have passed since State Senator Chris Smith, a Democrat, whose District 29 encompasses parts of Broward and Palm counties, voted with Republicans to eliminate reasonable fees from the state's workers' compensation system for claimants' attorneys. The purpose of the bill was to keep injured workers from being able to fight for their rights. It has worked as expected.
The bill approved by Senator Smith replaced a statute that required employers and their insurance carriers to pay claimants' attorneys a "reasonable attorney's fee" for successfully securing wrongly denied workers' compensation benefits. This was done very simply by removing the word reasonable from the statute, then imposing arbitrarily low caps on fees regardless of the time, effort, and cost invested to win the case.
Not surprisingly, the legislature placed no caps on defense attorney fees, the amount employers and insurance carriers could paid their attorneys to defend cases, win, lose, or draw. A good example of this happened in Jennifer Kauffman v. Community Inclusions, Inc./Guarantee Insurance Company, a case in which the insurance company paid its attorney $14,720 in a losing cause, while the successful claimant's attorney was limited by the statute to a fee of $648.41 for 100.3 hours of work, or $6.48 per hour. (Inexplicably, the Florida Supreme Court refused to consider on appeal the challenge to the constitutionality of the fee.)
This is the type of outcome the bill was designed to create. This bill was supported by Senator Smith, the only Democrat Senator to do so. Even some moderate Republicans voted against it!!!
Hardly a ringing endorsement for the rights of Florida's working men and women.
The vote came on the last day of the 2009 legislative session. Because of the votes against by some moderate Republicans, two votes were needed from Democrats to gain passage. Those votes were obtained. However, within minutes of the vote, the other Senator changed her mind and expressed a desire to vote against the bill. Procedurally, this could be accomplished, however, it required Senator Smith to vote to allow a re-vote. He refused to do it. In essence, then, Senator Chris Smith was the deciding vote for the law that has eviscerated the rights of injured Florida workers.
Not surprisiningly, then Governor Charlie Crist failed to veto the bill.
Following this debacle on the Senate floor, I engaged in email communications with Senator Smith. He asked for my views on the subject of carrier-paid attorneys fees in workers' compensation cases. I told him what I thought. He indicated that he would work with his colleagues to gain passage of legislation to moderate the harsh consequences of the 2009 law. I told him that his chance to do the right thing was in 2009, that the odds of getting Republicans to back off from their major victory, one that set back the rights of injured workers more than any other in the 80+ years since a workers' compensation system was instituted in Florida, were slim to none.
My assessment has proved correct.
Periodically after our initial communications, I would ask Senator Smith how his efforts to even the playing field were going. I never received a response. Not surprisingly, nothing was accomplished in 2010 or 2011 to moderate the bill, and, to my knowledge, nothing is on the 2012 legislative agenda either.
(For what it's worth, at the time of his vote in 2009, Senator Smith was employed by a law firm which derived a good portion of its income from representing workers' compensation insurance companies, although Mr. Smith was not himself a workers' compensation practitioner. As of the posting of this blog, he remained an employee of the same law firm.)
This is the reality: as long as Republicans control the Florida Legislature, nothing will be done legislatively to change the law. If change is to come, it must come from the courts, the Florida Supreme Court, in particular. Sadly, this court seems to be cowed by the overbearing might of right-wing politics.
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