Jeffrey P. Gale, P.A. // Shame on the Miami Herald

worker2Shame on the Miami Herald!

On September 30, 2016 (print) and October 4, 2016 (online), the Miami Herald published an editorial, written by Mark Wilson, president and CEO of the Florida Chamber of Commerce, titled Workers’ comp rate hike will hurt Florida businesses.

Mr. Wilson contends that two recent Florida Supreme Court decisions will cause workers’ compensation insurance premiums to rise, “all for the benefit of billboard trial lawyers.” While it is debatable whether rates will or should increase, there is no question that the decisions were just and proper. Moreover, the true and deserved beneficiaries of the court decisions are injured workers, not “billboard trial lawyers.” Positive results have already been experienced on the ground.

The first case mentioned by Mr. Wilson, Castellanos v. Next Door Company, et al. (Fla., 2016), was decided on April 28, 2016. It involved a challenge to a workers’ compensation statute that made it exceedingly difficult for injured workers to obtain adequate legal representation.

Mr. Wilson fails to present any Castellanos case facts, attempting, instead, to sway unknowing readers with inflammatory and broad brush statements. He does not even give the full case name to make it easier for curious readers to find and read the decision to reach informed conclusions.

Shame on him. Shame on the Miami Herald for providing the forum.

Marvin Castellanos, injured at work, was denied medical benefits by the employer and its workers’ compensation insurance carrier (E/C). His lawyer, who handled the case on a contingency fee basis (meaning, ‘no win, no pay’), filed a claim to secure the denied benefits. The E/C raised twelve defenses. A final hearing was then held before the Judge of Compensation Claims (JCC), in which numerous depositions, exhibits, and live testimony were submitted for consideration. In its Final Compensation Order, the JCC determined that Mr. Castellanos was entitled to be compensated by the E/C for his injuries and was therefore entitled to recover attorney’s fees and costs from the E/C. The JCC explicitly found that Castellanos’ attorney was successful in securing compensability and defeating all of the E/C’s defenses, and retained jurisdiction to determine the amount of the attorney’s fee award.

Based on evidence presented at the fee hearing, the JCC determined that 107.2 hours of work was “reasonable and necessary” in litigating the complex case. Despite expert testimony that the usual and customary hourly rate for legal services of a similar nature is $350, the JCC awarded a total fee of $164.01, which calculated to $1.53 per hour. That’s right, $1.53 per hour!

The JCC was forced into this decision by section 440.34(3) Florida Statutes (2009), which was amended in 2009 to remove the longstanding requirement that attorney’s fees be “reasonable.” In essence, the Florida Legislature created a law that barred workers’ compensation judges from awarding reasonable fees to injured workers’ lawyers. Interestingly, no limit was placed on the amount insurance companies could pay their defense lawyers.

Castellanos challenged the constitutionality of the statute. In a thorough and well-reasoned opinion, the Florida Supreme Court concluded that the statute violated the United States and Florida constitutions.

Astoundingly, Mr. Wilson’s take on Castellanos is that it “overturned reasonable attorney fee caps.” Really, Mr. Wilson, $1.53 per hour is reasonable?

Castellanos is not an isolated case. Thousands of other cases were similarly impacted by the law. Reproduced below are a few of them:

  • Murray v. Mariner Health, 994 So. 2d 1051 (Fla., 2008). The successful employee’s attorney received a formula fee of $684.84 for eighty hours of reasonable and necessary time, which equated to an hourly rate of $8.11. (The carrier paid its attorney $16,050.) (Note: This case was decided under the 2002 version of the challenged 2009 statute, but the JCC  interpreted the 2002 version as barring him from awarding reasonable fees. The Florida Supreme Court disagreed with the JCC’s interpretation. To correct the confusion, the 2009 Legislature simply eliminated the word “reasonable” from the statute. Castellanos challenged the 2009 version.)
  • Perez v. Univision Network LP/Sentry Claims Service, 184 So. 3d 653 (Fla. 1st DCA 2016). $1,562.15 formula fee for 128.9 of legal work = $12.12 an hour.
  • Diaz v. Palmetto Gen. Hosp./Sedgwick CMS, 146 So. 3d 1288 (Fla. 1st DCA 2014). $1,593.47 formula fee for 120 hours of legal work = $13.27 an hour.
  • Ferrer v. Truly Nolen of Am., Inc., 164 So. 3d 700 (Fla. 1st DCA 2015). $135.02 formula fee for 35 hours of legal work = $3.86 an hour.

The second Florida Supreme Court decision attacked by Mr. Wilson is Westphal v. City of St. Petersburg. Here, again, the writer does not supply any pertinent case facts.

In December 2009, Bradley Westphal, then a fifty-three-year-old firefighter in St. Petersburg, Florida, suffered a severe lower back injury caused by lifting heavy furniture in the course of fighting a fire. As a result of the lower back injury, Westphal experienced extreme pain and loss of feeling in his left leg below the knee and required multiple surgical procedures, including an eventual spinal fusion.

After receiving 104 weeks of temporary total disability benefits, Westphal was still incapable of working or obtaining employment, based on the advice of his doctors and the vocational experts that examined him. However, because he had not yet reached maximum medical improvement in his recovery process, he was not entitled to receive or apply for additional disability benefits.

The statute, section 440.15(2)(a) Florida Statutes (2009), was challenged as being unconstitutional as a denial of the right of access to courts. The court framed the question before it as follows:

whether the workers’ compensation law with regard to the 104-week limitation remains a “system of compensation without contest,” Mullarkey v. Fla. Feed Mills, Inc., 268 So. 2d 363, 366 (Fla. 1972), that provides “full medical care and wage-loss payments for total or partial disability regardless of fault,” Martinez v. Scanlan, 582 So. 2d 1167, 1172 (Fla. 1991).

The court answered the question in the negative, declaring the statute unconstitutional. It reached this conclusion by reviewing what had occurred to the workers’ compensation system since the 1968 adoption of the access to courts provision, as it relates to providing “full medical care and wage-loss payments for total or partial disability regardless of fault,” Martinez, 582 So. 2d at 1172, in order to determine whether a constitutional “tipping point” had been reached. It made the following analysis:

In comparing the rights of a worker such as Westphal injured on the job today with those of a worker injured in 1968, the extent of the changes in the workers’ compensation system is dramatic. A worker injured in 1968 was entitled to receive temporary total disability benefits for up to 350 weeks. See § 440.15(2), Fla. Stat. (1968). In 1990, the Legislature reduced the availability of temporary total disability benefits from 350 to 260 weeks—a 25.7% reduction of two years. See ch. 90-201, § 20, Laws of Fla. Then, in 1993, the Legislature again reduced the availability of temporary total disability benefits, this time from 260 weeks to 104 weeks—a 60% reduction. See ch. 93-415, § 20, Laws of Fla. This means that an injured worker such as Westphal is now eligible to receive only 104 weeks of temporary total disability benefits—a massive 70% reduction when compared to the temporary total disability benefits available in 1968.

(With the 1993 version declared unconstitutional, the 1990 version — 260 weeks — went into effect.)

The Westphal statute is just one example of many of the steady erosion of workers’ compensation benefits in Florida since 1968. Other examples include:

  • 440.09(1). Claimants who cannot prove that the industrial accident is more than 50% responsible for their injury or injuries get nothing, zero, even if the accident is 49% responsible. The statute reads as follows:  “[T”]he accidental compensable injury must be the major contributing cause of any resulting injuries. For purposes of this section, “major contributing cause” means the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought.”
  • 440.13. No second medical opinions.
  • 440.13(2)(c). Carriers choose the initial treating physician and all other providers. Claimants do not have a choice in who is authorized. Time and again, carriers select the same go-to workers’ compensation doctors who know better than to bite the hand that feeds them.
  • 440.13(2)(f). Claimant is limited to one change of physician during the course of treatment for any one accident and the carrier gets to select the doctor. The former authorized doctor then becomes de-authorized.
  • 440.13(4)(c). “An employee who reports an injury or illness alleged to be work-related waives any physician-patient privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation…. [U]pon the request of the employer, the carrier, an authorized qualified rehabilitation provider, or the attorney for the employer or carrier, the medical records, reports, and information of an injured employee relevant to the particular injury or illness for which compensation is sought must be furnished to those persons and the medical condition of the injured employee must be discussed with those persons…. Any such discussions or release of information may be held before or after the filing of a claim or petition for benefits without the knowledge, consent, or presence of any other party or his or her agent or representative.”
  • 440.15(1). This section makes it virtually impossible for injured workers to qualify for permanent and total disability (PTD) benefits. The workers’ compensation PTD standard is more arduous than permanent total disability standards found in every other arena, such as private disability insurance, Social Security Disability, and State of Florida disability (for government employees). Moreover, workers’ compensation PTD benefits end at age 75 no matter what.

Mr. Wilson declares that the decisions are “all for the benefit of Florida’s billboard trial lawyers.” Quite the contrary, I say. Castellanos allows injured workers to obtain adequate legal representation. Westphal allows the most severely injured workers to continue receiving monetary benefits while working towards maximum medical improvement.

However, don’t take my word for it. Read the decisions and make up your own mind.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.