If Gov. Charlie Crist wants to look out for Florida workers, he should veto a bill that would make it harder for them to hire a lawyer if they are denied compensation for a workplace injury. The state's workers' compensation system should strike a balance between providing fair compensation for injured workers and protecting employers from frivolous claims. But the measure passed by the Legislature clearly favors business over their employees.
The Florida Chamber of Commerce pushed for HB 903 as a legislative priority this session. The bill resurrects a fee schedule the Legislature approved in 2003 that limits fees paid to lawyers who represent injured workers who succeed in demonstrating that they were unjustly denied compensation for their injury. The insurance carriers' lawyers do not face any fee limits.
The fee cap for claimants' attorneys has led to unfair situations, such as the one in the case of Murray vs. Mariner Health. Emma Murray was a nursing assistant who was injured while lifting a patient and later had a hysterectomy. She challenged an initial denial of benefits and was eventually awarded $3,244 on appeal. Under the statutory fee schedule her attorney was entitled to 20 percent of Murray's compensation award, or $648. The attorney put 80 hours of work into Murray's case, which meant a fee of $8 per hour. At the same time, the insurance carrier fighting Murray's compensation claim paid its counsel $16,050 or upward of $150 per hour.
Last year, in a 5-0 ruling, the Florida Supreme Court found that this kind of inequity violated the law's promise of awarding successful claimants "reasonable" fees. It awarded Murray's counsel $16,000 and said, going forward, judges had the discretion to adjust the statutory caps up or down when necessary to reach a fair result.
This set off alarm bells in the state's business lobby, which warned that without the strict caps on attorney fees — fees that are paid only when a claimant prevails — workers' compensation insurance rates would again zoom to unsustainable levels. At one time Florida had one of the highest workers' compensation insurance rates in the nation.
But there is no evidence that the October ruling has unleashed a flood of illegitimate claims or outsized attorney fee awards. In fact, Kevin McCarty, the state's insurance commissioner, has approved only a modest 6.4 percent rate increase on estimates of Murray's projected costs.
What's more, the state's trial lawyers say that since 2003, many injured workers have been unable to find counsel after being wrongly denied compensation. There's no financial incentive for attorneys to take even strong cases if they risk earning $8 an hour. Also gone is the insurance companies' incentive to justly compensate employees because they face so little risk of being challenged. Clearly, the fee schedule puts more injured workers at risk of being denied what is owed them.
The Florida Supreme Court returned a measure of fairness to the workers' compensation system. Crist should let the ruling stand and veto HB 903.