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Getting workers' comp right

In print: Monday, November 10, 2008

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When the state workers' compensation system works, it is the best of all worlds. The injured employee receives compensation and medical care without having to endure protracted litigation, and the employer doesn't have to worry about open-ended liability for workplace injuries.

But when problems arise, the system can show its biases. Over the years these have shifted from the system being so credulous that it encouraged fraud to making it unnecessarily difficult for injured employees to get what they are rightly owed.

The Legislature has tinkered with the law as problems arose with a major 2003 overhaul when Florida workers' compensation insurance rates were astronomically high. The revisions have significantly brought down costs to employers, but as part of the price there were some unfortunate changes in the way attorneys for injured workers are compensated.

Last month, the Florida Supreme Court made an important correction. The court ruled 5-0 that current law regulating attorney fees in workers' compensation matters must be interpreted to allow judges to go beyond the law's strict fee schedule. Because the statute promises "reasonable fees" to attorneys representing successful claimants, the justices said, the statute's rigid fee caps must at times be abrogated.

The case, Murray vs. Mariner Health, involved a nursing assistant who was injured lifting a patient. She challenged an initial denial of benefits and with the help of a lawyer who put in about 80 hours of work, won her claim and was awarded $3,244 in benefits.

Under the fee schedule, her lawyer would receive $648, or an hourly rate of about $8 from the insurance carrier. This represents 20 percent of the value of the benefits awarded. Meanwhile the insurance carrier paid its own counsel $16,050, or about $125 per hour.

Obviously, results like this point up a serious inequity. Paul Anderson of the Florida Justice Association, an association of trial lawyers, says that since 2003 the frequency of workers' compensation claims has consistently gone down. He says a significant number of attorneys are no longer taking these cases or cutting back because they cannot afford to represent clients for such small potential fees.

The high court in the Murray case has rectified this by allowing a departure from the statutory caps when it would produce unreasonable fees for the amount of work involved by the plaintiff's lawyer. It is a sensible ruling that would even grant discretion to judges to award fees less than the schedule, when warranted. While it is in the public interest to keep workers' compensation premiums affordable, that cannot unduly compromise the ability of injured workers to get access to legal counsel.

The issue is one the Legislature should come back to this next spring. By then, there will be some experience under the Murray rule. If there is a bump in legitimate claims, then it will be clear that the constraints on attorney fees had kept injured workers from getting the benefits they deserved.