Governor Crist has signed CS/HB 903. The Orlando Sentinel has the story here.
The bill takes effect on July 1, 2009. I have never known an amendment to §440.34 to be given retroactive effect. Thus, the amendment almost certainly will not apply to existing claims, but only to accidents which occur on or after July 1.
Constitutional challenges will surely follow. More later.
In this letter reprinted in the May 18 edition of the Palm Beach Post, Bill Herrle, the Florida executive director of the National Federation of Independent Business, urges Governor Crist to sign CS/HB 903. Mr. Herrle rejects as "unfounded" any fears that the bill will make it more difficult for injured workers to obtain representation in workers' compensation cases. And police and firefighters' unions which have urged a veto are just being "selfish" because a veto will "hamstring" small businesses with "unnecessarily high [insurance] rates."
But echoing the views expressed by Howard Troxler in his May 10 column, the editorial board of the St. Pete Times has called on Governor Crist to veto the bill in this May 18 editorial. The editors note that if an attorney can earn only $8 an hour, as in Murray, he simply will not take case - even when the employer/carrier clearly owes the benefits in question.
The clock is now ticking on any decision by Governor Crist to veto CS/HB 903. The legislature adjourned its session on May 8 and presented the bill to the governor on May 15. Thus, under Art. III, §8(a), Fla. Const., he must veto it within 15 days of the latter date, or by May 30, or it automatically becomes law. See Fla. Soc. of Ophthalmology v. Fla. Optometric Ass'n, 489 So.2d 1118 (Fla. 1986)(holding that this constitutional provision affords the governor 15 days from presentment to veto those bills submitted to him after the legislature has adjourned sine die).
In this column, Howard Troxler of the St. Pete Times has recommended that Gov. Crist veto several bills from the just-concluded legislative session, including CS/HB 903.
Gov. Crist visited the Clearwater Regional Chamber of Commerce last night and, according to "The Buzz," the political blog of the St. Pete Times, had this exchange with the president of the chamber:
“We’d really like to see you support House bill 903,” Bob Clifford, president of the Clearwater chamber, told Crist, who was accompanied by his wife, Carole.
“I better write it down then - what's it do?” Crist asked.
“Workers compensation.”
“Oh yeah, yeah, yeah,” Crist said, noting he met with Florida Chamber president Mark Wilson about it.
At the end, he was pressed again by another chamber official.
“Got it. Got it. I understand: 360, workers compensation. Got it in my notes,” Crist said, again making no promise.
I said in yesterday's post that unless there was some dramatic movement on the last day of the legislative session, the workers' compensation attorney's fee bills were dead. Well, there was some dramatic movement. In the final hours of the session, the Senate receded from CS/CS/SB 2072 and adopted C/S HB 903 by a vote of 22-16, with two members not voting. The vote split predictably along party lines, although 5 Republicans (Sen. Dockery (R-Lakeland), Sen. Garcia (R-Hialeah), Sen. Jones (R-Seminole), Sen. Peaden (R-Crestview), and Sen. Villalobos (R-Miami) broke rank and voted no, and 2 Democrats (Sen. Siplin (D-Orlando) and Sen. Smith (D-West Palm Beach)) voted yes. The Miami Herald has the story here, and the St. Pete Times has this coverage.
Why the last-minute shift? Who knows, but there had been rumors that the workers' compensation bill was being used by the Senate as a "bargaining chip" to get something from the House that it wanted, namely, this property insurance bill which the Senate favored over the comparable House version. The House adopted this measure yesterday by a vote of 80-35.
All eyes are now focused on Gov. Crist to see whether he will veto CS/HB 903. Under the Florida Constitution, he must veto the measure within seven days after its presentation, or within 15 days after its presentation if the legislature adjourns in the interim, or it automatically becomes law.
By a vote of 39-0, the Senate yesterday passed CS/CS/SB 2072, the so-called "Murray Compromise" bill. But on motion by Rep. Anitere Flores (R-Miami), the original sponsor of CS/HB 903, the House refused to concur. The bill is now "in messages" with a request by the House for the Senate to recede.
Today is the final day of the regular legislative session. Although a one-week extension of the session has been scheduled, that week will be used only to resolve budgetary issues. So unless there's some dramatic movement today, it looks as though these attorney's fee bills are dead.
The editorial board of the Palm Beach Post has endorsed CS/CS/SB 2072 - the so-called "Murray compromise" bill. Click here to read.
CS/CS/SB 2072 has now been voted favorably out of the Senate Committee on General Government Appropriations by a vote of 5-0. In addition to the changes to the original bill which I discussed in my April 18 post, the new committee substitute exempts from the restrictions of §440.34 fees for attorneys who successfully represent "first responders" in claims arising out of an "occupational disease" as that term is defined in §112.1815. As I discussed here, in 2007 the legislature made special provision for first responders with respect to occupational diseases.
The Senate Judiciary Committee's substitute for SB 2072 - CS/SB 2072 - has now been posted online by the legislature. As amended, the bill would:
By a margin of 8-1, the Senate Judiciary Committee voted favorably on SB 2072 yesterday, but with substantial amendments which had been offered by the trial bar. One amendment to the bill (549680) provides that the
fee payable under this subsection may be increased up to the fee paid by the employer or carrier to the employer’s or carrier’s attorneys if it is determined that the employer or carrier engaged in a bad faith denial of benefits, unreasonably delayed furnishing benefits that were due and owing, or unreasonably continued or increased the expense of litigation.
All committee members except Sen. Garrett Richter (R-Naples), the sponsor of the original bill, voted in favor. The bill now moves to the Senate Committee on General Government Appropriations which, as the News Service of Florida reports here, may restore the bill to its original form. The committee is set to take up the bill on April 20.
The Senate Judiciary Committee is set to consider SB 2072 its meeting on April 15. Still pending before the committee are two proposed amendments to the bill (690702 and 906380) which were filed on March 31.
The General Government Appropriations Committee is also set to consider the bill, but there's no word yet on when that will happen.
The News Service of Florida reports that Sen. Lee Constantine (R- Altamonte Springs), chairman of the Senate Judiciary Committee, has vowed that SB 2072 will come up for a vote in his committee despite yesterday's postponement. "We are not going to have a filibuster on this thing," said the chairman. He also reportedly criticized both sides of the debate over attorney's fees for failing to work hard enough to reach a compromise.
CS/HB 903 passed in the Florida House of Representatives on March 31 by a vote of 84-35. Several days earlier, the House rejected an amendment to the bill which would have (1) repealed §440.105(3)(c) which makes it unlawful for a claimant's attorney to receive a fee which has not been approved by the judge of compensation claims, (2) amended §440.20(11)(c) to permit a claimant's attorney to collect a fee from his client in connection with a settlement which is subject only to the limitations on fees imposed by the Florida Supreme Court, (3) amended §440.34(1) to provide for the award of a carrier-paid claimant's attorney's fee in cases where the benefits requested in a petition for benefits were not provided within 30 days of the carrier's receipt of the petition, (4) increased the permissible percentages for claimant's attorney's fees to 25% of the first $5,000 in benefits obtained, 20% of the next $5,000, and 15% of the remaining benefits secured, and (5) provided that in no event should the carrier-paid claimant's attorney's fee awarded be less than the fees charged by the carrier's lawyer for defending the claim.
Meanwhile, SB 2072, the Senate counterpart to the House bill, was due to be considered by the Senate Judiciary Committee on April 1 but was temporarily postponed. No official word yet on when the committee will take up the bill.
SB 2072, which is identical to CS/HB 903, passed the Senate Insurance and Banking Committee on March 25 by a vote of 6-3. It now moves to the Senate Judiciary Committee for consideration. An amendment to the bill proposed by Sen. Al Lawson (D-Tallahassee), the Senate Minority Leader, was defeated.
In the meantime, CS/HB 903 is headed to the House floor for a vote on Thursday, March 26.
SB 2072, which is identical to CS/HB 903, has now been placed on the Senate Banking and Insurance Committee's agenda for Wednesday, March 25.
Meanwhile, the Palm Beach Post editorialized against these bills in its Sunday edition.
The Committee Substitute for HB 903 - CS/HB 903 - is out. The revised bill: (1) deletes the detailed legislative findings of fact contained in the original bill; and (2) requires that claimant's attorney's fees be "equal to" the various percentages of benefits secured set out in the statute instead of, as in the original bill, allowing the fees to be "less than or equal to" those percentages.
The Miami Herald reports that the bill is now headed for a vote on the floor of the House as early as next week.
HB 903, with a committee substitute, was passed by the House General Government Policy Council on March 17 by a vote of 14-4. The committee substitute means that there will be some changes to the original bill, but as of this post, the revised bill is not yet available on the legislature's website.
Today's edition of the Miami Herald has this report on the bill. According to the Herald, Governor Crist has signaled his support of the bill.
HB 903 has been forwarded to the House General Government Policy Council, which will consider the bill on Tuesday, March 17.
HB 903 has been retained by the House Insurance, Business & Financial Affairs Policy Committee. According to a representative of the committee that I spoke with this morning, the bill was passed by a vote of 19-2 yesterday, but a motion to retain the bill was heard and approved. The committee is scheduled to meet again on Thursday, March 12. If a motion to reconsider the bill is filed and passed at that meeting, the bill will be taken up by the committee anew. But if a motion to reconsider is not passed, or if such a motion is not filed, the bill will be passed out of committee. Its next stop would be the House General Government Policy Council.
HB 903, which would repeal the requirement that carrier-paid claimant's attorney's fees be "reasonable" and would require instead that they be "less than or equal to" a percentage of benefits secured by the attorney for his client, will be considered by the House Insurance, Business, and Financial Affairs Policy Committee on Tuesday, March 10. Proposed amendments to the bill must be submitted by 6:00 p.m. on Monday, March 9.
Given that the committee is comprised of 13 Republicans and 8 Democrats, and given that the ranking Democrat, Priscilla Taylor (D-W. Palm Beach), had originally introduced a similar bill herself (HB 311), I'd guess that this bill will have no trouble making it through committee.
On the opening day of the legislative session, Rep. David Rivera (R-Miami), introduced HB 1489 in the Florida House of Representatives. This bill would amend several sections of the Florida Workers' Compensation Law in ways that are generally more favorable to injured worker. It would:
For those of you into "Twitter," Sen. Dan Gelber (D-Miami Beach), the sponsor of SB 2280 and a candidate for the U.S. Senate, is "tweeting" (or is it "twittering"?) the 60-day legislative session which started today. You can follow his comments and send him your thoughts here: http://twitter.com/dangelber.
Hat tip to Ocala attorney Ken Hesser for alerting me.
Today's edition of the Miami Herald has this article about HB 903 and SB 2072, which would reverse the result reached by the Florida Supreme Court in Murray v. Mariner Health, and SB 2280, which would not.
Sen. Dan Gelber (D-Miami Beach) has filed SB 2280 in the Florida Senate in advance of the legislative session which is scheduled to begin next Tuesday, March 3. This bill would:
The bill would also leave undisturbed the result reached by the Florida Supreme Court in Murray v. Mariner Health because it does not amend §440.34(3)'s requirement that attorney's fees be "reasonable."
Sen. Garrett S. Richter (R-Naples) has filed SB 2072, another bill which would overturn the result of the Florida Supreme Court's decision in Murray v. Mariner Health. The bill is similar though not identical to HB 903, a bill which I discussed here. SB 2072 would:
Sen. Richter is chairman of the Senate Banking and Insurance Committee. And in this article the News Service of Florida reports that Rep. Larry Cretul (R-Ocala), the Speaker of the House of Representatives, supports both measures.
Senator Evelyn Lynn (R-Daytona Beach) has introduced SB 1878 in the Florida Senate. This bill would:
In order to claim "in-line-of-duty" disability benefits from the Florida Retirement System, participants must prove that they cannot render "useful and efficient service as an officer or employee" because of their injuries. But under HB 697, filed on 2/3/2009, law enforcement officers, correctional officers, emergency medical technicians, paramedics, or community-based correctional probation officers would only need to prove that they are prevented by their injuries from performing "useful and efficient service in the position held" in order to claim entitlement to these benefits. In other words, if they cannot perform their duties as a law enforcement officer, etc., they are considered "disabled" for purposes of entitlement to "in-line-of-duty" disability benefits even if they are otherwise employable.
In addition, the bill would permit any such "in-line-of-duty" disability recipient to become re-employed after 1 calendar month "without limiting or restricting in any way the retirement benefits payable to that person under this chapter" so long as he was not rehired in any Special Risk Class job.
HB 259 and its identical Senate counterpart, SB 792, would expand the circumstances under which the survivors of Florida firefighters who are killed in the line of duty could collect certain death benefits. Specifically, these bills would amend §112.191, Fla. Stat., to:
The News Service of Florida reports that discussions are underway about a legislative response to Murray v. Mariner Health. According to the report, the Senate Banking and Insurance Committee took testimony Tuesday from NCCI, a judge of compensation claims, and an actuary at the Office of Insurance Regulation, but didn't take any testimony from any attorneys, insurers, or employers.
The Service also quotes Sen. Garrett Richter (R-Naples), the Chairman of the Committee, as saying, "I've not seen a bill yet, but I understand the various parties are communicating with each other to come up with a satisfactory response."
HB 311 was withdrawn by its sponsor on 2/3/2004. The bill, which I wrote about here, would have repealed the statutory authority for judges of compensation claims to award carrier-paid attorney's fees to successful claimant's attorneys. No explanation for the withdrawal was given on the legislature's website. The legislature is scheduled to convene in regular session on 3/3/2009.
Representative Joe Baca (D-CA) has introduced H.R. 635, the "National Commission on State Workers' Compensation Laws Act of 2009." Filed in the U.S. House of Representatives on 1/22/2009, the bill proposes to establish a commission to "study and evaluate State workers' compensation laws in order to determine if such laws provide an adequate, prompt, and equitable system of compensation for injury or death arising out of or in the course of employment." The commission would also "study and evaluate whether additional remedies should be recommended to ensure prompt and good faith payment of benefits and medical care to injured workers and their families." With respect to "additional remedies," the commission would conduct "a study of whether other adequate remedies are available to ensure the prompt payment of benefits and to reduce or eliminate bad faith delays in payments of benefits, providing medical care, and discouraging misclassification of workers as independent contractors and or leased employees to avoid paying workers' compensation benefits."
In an apparent attempt to undo last October's Florida Supreme Court decision in Murray v. Mariner Health, Representative Priscilla Taylor (D. West Palm Beach) filed HB 311 in the Florida House of Representatives on 1/13/2009.
This bill:
Representative Taylor's biographical page on the House website lists her occupation as "Owner, insurance agency."
Sorry for the lack of posting for the last few weeks. I'll try to catch up over the next few days. To begin, let's look at the legislative session which ended on 5/2/2008. What happened? Almost nothing.
SB 2548, the bill which contained a number or changes to the law which I summarized here, was never even taken up by committee.
SB 454 and HB 239, bills which would have affected the employee-leasing industry and which I discussed here, also died.
And SB 2314, a bill which would have made cancer a presumptively compensable for condition for firefighters (see this post), met the same fate.
HB 5045, on the other hand, did pass both chambers. This bill transfers various duties previously assigned to the Agency for Health Care Administration (AHCA) to the Department of Financial Services. It awaits the governor's signature and will be effective on 7/1/2008.
Crum Services v. Lopez, decided on 3/6/2008, illustrates a situation that arises all too often in the context of employee leasing companies. Crum Services is an employee leasing company (also known as a "professional employer organization" or "PEO") who entered into a contract with P&G Roofing to provide leased employees to P&G. The contract between Crum and P&G provided that Crum would provide workers' compensation coverage to all of P&G's leased employees. In order to be a "leased employee," however, the contract specifically provided that the employee must first complete an employment application, a W-4 withholding form, and a Form I-9, all of which had to be delivered to Crum "before the employee commences employment."
Mr. Del Sol, an employee of P&G, hired Lopez to work for P&G at the rate of $80.00 per day. Lopez did not, however, complete any paperwork for Crum. He was injured on the third day of his employment with P&G, causing him to miss work for about four months. Mr. Del Sol took Lopez to the doctor after the accident and promised to pay him $200.00 per week while he was out of work (about four months), but he never did.
Continue Reading...
As he apparently promised he would (see this post), Senator Jeff Atwater, a Republican representing parts of Palm Beach and Broward Counties, has re-introduced a bill identical to last year's bills (see SB 1440 and HB 301 from the 2007 legislative session) which would provide cancer coverage for firefighters and paramedics. See SB 2314.
Specifically, as §112.18(1) currently does for coronary problems and §112.181 does for hepatitis, SB 2314 would create a rebuttable presumption that "any condition or impairment of the health of a firefighter or paramedic". . . which is caused by cancer and results in total or partial disability or death is presumed to have been accidental and suffered in the line of duty unless the contrary is shown by competent evidence." In order to take advantage of the presumption, the firefighter or paramedic must have passed a physical examination before commencing employment which failed to reveal any evidence of such condition.
Though Florida's annual legislative session is set to begin on March 4, so far only two bills have been filed which would meaningfully affect the area of workers' compensation. Those identical bills, SB 454 and HB 239, concern employee leasing companies. Under these proposed bills:
Continue Reading...(1) the contract between the leasing company and the client company must provide that the leasing company will give notice to all leased employees as to whether their workers’ compensation coverage is being provided by the leasing company or by the client company;
(2) when the leasing company terminates its contractual relationship with the client company, the leasing company must give written notice of that fact, including the date of contract termination, to each leased employee at the employee's last known address;
David A. McCranie has been licensed to practice law in the State of Florida since 1982. He forrmerly served asMore...
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