Jeffrey P. Gale, P.A. // Open Letters to Senator Rob Bradley Regarding Florida Workers’ Compensation

Dear Senator Bradley:

I have been representing injured workers since 1990. As Florida’s 1^st DCA wisely noted in 1985, in language adopted by the Florida Supreme Court in Castellanos v. Next Door Company, et al., a claimant proceeding “without the aid of competent counsel” would be as “helpless as a turtle on its back.” Davis v. Keeto, Inc., 463 So. 2d 368, 371 (Fla. 1st DCA 1985).

I have followed all of the Senate Committee hearings on your bill. I take issue with those who testified that the Castellanos fee was an aberration. It was not. While $1.53/hr. falls at the low end of the spectrum, there is little practical difference between $1.53/hr and $15.00/hr or $20.00/hr for a lawyer trying to keep his or her law office lights on. Between 2003 and Castellanos, I handled hundreds of WC cases. My average hourly rate on those cases ranged from $15 to $20 per hour. Unsustainable. I continued to accept workers’ compensation cases because they are the most gratifying of the various types of cases I handle, but it was personal injury cases that allowed me to stay in business. Many workers’ compensation attorneys dropped out.

My experience with low hourly rates is not unique. As FN 2 in Castellanos indicates, on the date the Supreme Court rendered its decision it had pending before it (on certiorari jurisdiction from the 1^st DCA) 18 other cases on the very same issue. I say this as a caution against believing those who downplay the devastating impact of the law challenged in Castellanos.

The reasonable carrier-paid attorney’s fee serves two tremendously important purposes. First, it affords injured workers the opportunity to retain competent counsel. Second, and just as important, it compels carriers to provide needed benefits timely. The problem pre-Castellanos is that carriers faced little consequence for poor and bad faith claims handling.

I greatly appreciate your steadfastness and decency in seeking to fashion a fair and measured workers’ compensation bill in the face of powerful opposition forces. The current version of SB 1582 is that bill. The House bill is not. The hourly rate for carrier-paid fees must be high enough to serve the important goals of affording injured workers adequate legal representation and of prodding carriers into doing the right thing. The House bill, with its $150/hr. cap and onerous hurdles to securing fees – period — eviscerates these goals.

Most respectfully,

Jeff Gale

Dear Senator Bradley,

The total fee received by the Claimant’s attorney in the Castellanos case was $164.54. This was for 107.2 hours of work determined by the Judge of Compensation Claims (JCC) to be “reasonable and necessary.” Under the law ruled unconstitutional, this means that the value of the benefits secured totaled $822.70. More likely than not, had the current attorney’s fee provisions been in place when Mr. Castellanos was seeking these benefits, the carrier would have provided them without a fight. Instead, the E/C forced Claimant’s attorney to the mat figuring early capitulation or, worst case, having to pay the attorney a measly fee in the event of a loss at the trial level.

To one degree or another, this is the game carriers played in every workers’ compensation case pre-Castellanos. Since the Castellanos decision was rendered, this type of inappropriate claims handling has disappeared. It would be a shame to return to the old ways.

If I had my druthers, I’d keep the attorney’s fee law just the way it is. It is a masterful system grounded on the solid principle that the JCCs, who are the triers of fact, are in the best position to determine reasonable attorney’s fees, within well-defined and longstanding tried and true parameters – which, by the way, SB 1582 maintains – on a case-by-case basis.

Portions of the House bill are blatantly outrageous, a clear effort to tilt the playing field in favor of insurance carriers. It ignores the letter and the spirit of Castellanos like it never happened. It is unreasonable.

A society that ignores the principle of reasonableness is no longer a civilized society.

Again, many thanks for your steadfast effort to do right by the hardworking men and women of this state.

(P.S. Here is an on-topic blog I wrote in October, 2016: https://www.floridainjuryattorneyblawg.com/2016/10/jeffrey-p-gale-p-shame-miami-herald.html)

Respectfully yours,

Jeff Gale

Dear Senator Bradley,

Now that the dust from the 2017 legislative session has fairly settled, I want to again thank you for standing firm against the efforts of industry to gut the workers’ compensation system. The pressure on you to get in line had to be extreme.

As we know, the forces of extreme change will be back again next session. As always, carrier-paid attorney’s fees will be at the top of their menu list of desired dishes. I am hopeful that you will again exert your leadership to resist the worst of their proposals.

Knowing that the beast will not quit until it has tasted blood, it is still my honest considered opinion that the Castellanos system now in place is fair, reasonable, sensible, and effective. It is certainly constitutional, and it is also the primary reason why post-Castellanos claims are being handled by workers’ compensation insurance companies with significantly greater attention to the timely provision of needed benefits when compared to pre-Castellanos practices and procedures.

Care needs to be paid to maintaining a meaningful attorney’s fee provision. Of the many proposals put forward this past session, the very best was the CS which passed out of the Appropriations Committee by a vote of 16-0 on April 13. Other proposals, both in the Senate and the House, were either deeply flawed, downright unworkable, and/or outrageously inequitable.

With the deepest respect,

Jeff Gale

Dear Senator Bradley,

Emulate Sen. Susan Collins. Emulate Sen. Lisa Murkowski. Emulate Sen. John McCain.

History will judge them kindly for their courage in standing against greed and avarice. It always does.

Very truly yours,

Jeff Gale

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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.

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