Workers Compensation Reform Takes Separate Paths

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If the workers’ compensation reform measures considered this week in the Legislature were Star Wars movies, the Senate bill’s title would be “A New Hope” while the House bill would be called “The Empire Strikes Back.”

The Senate proposal is a much better bill for injured workers than the House plan that emerged from committee after the announcement of a deal with the insurance companies and corporations.

The Senate legislation ((SB 1582) sponsored by Sen. Rob Bradley) preserves the attorney fee schedule in current law but provides discretion to a Judge of Compensation Claims to determine whether the fees are unreasonable. If that’s the case, the bill provides the judge with the ability to increase or decrease the fee subject to a rate of $250 an hour.

Sen. Bradley’s proposal also provides for caps on defense and cost containment and establishes a framework to return cost containment expenses to employers.

Sen. Bradley said his proposal respects the grand bargain on workers’ compensation made in the past by employers and employees.

The Florida Justice Association supports a responsible approach to providing statutory and rate reforms that return workers’ compensation back to its stated purpose: To help injured workers get healthy and back on the job. We believe there are four pillars of reform that are critical to enact.

  • Develop a transparent ratemaking process that allows for meaningful competition.
  • Permit an element of patient choice of physician in medical care.
  • Develop a mid-level tier for providing benefits once the doctor determines the employee has reached Maximum Medical Improvement.
  • Ensure that injured workers have proper access to the court by maintaining a reasonable standard for attorneys’ fees.

Up until this point in session, lawmakers had advanced reforms that respected the ultimate goal of the system: To provide injured workers the treatment they need so they can recover quickly and return to work.

In the House, after an agreement with the workers’ compensation insurers and business interests, the Commerce Committee passed a bill civil justice advocates say takes a huge step backwards on workers’ compensation. The committee weakened the attorneys’ fee enforcement mechanism that motivates insurance companies to provide injured workers with the benefits they deserve.

On top of that, when given an opportunity to enhance benefits for injured workers, the Committee said no to:

  • Providing injured workers with the opportunity to get a second opinion from a doctor of their choice;
  • Promoting free market principles and competition in ratemaking; and
  • Allowing for “reasonable” attorney fees.

“When you get injured on the job, if you don’t already know this, you do not have a choice of which doctor you will go to. The insurance company controls all aspects of your medical treatment,” Kim Syfrett from Florida Workers Advocates told committee members in support of the second opinion amendment. “The argument that allowing an injured worker some choice of medical drives up rates is a myth. Lower rates do not require the carrier to have complete choice of doctors. If you look at the 16 states with the lowest workers’ compensation insurance premium, you’ll find that 11 of those allow a significant choice that goes beyond Rep. (Jared) Moskowitz’s amendment.”

Paul Anderson, of the Florida Justice Association, shared his perspective on the attorneys’ fee amendment and warned it would likely prompt a constitutional challenge saying, “It shifts the obligation for payment of fees in great part to the injured worker.”

The legislation limits attorney fees to $150 an hour. According to the 2013-14 U.S. Consumer Law Attorney’s Fee Survey, the average rate for a Florida attorney was $382 an hour.

The committee passed HB 7085 on a vote of 20-9. It now goes to the House Floor for consideration. The Senate bill moves to the Appropriations Committee.

Vote Count on CS/SB 1218
Yes: Bracy, Braynon, Farmer, Flores, Garcia, Thurston
No: Gainer, Mayfield

Vote Count on HB 7085
Yes: Avila, Beshears, Boyd, Burgess, Diaz, Eagle, Eisnaugle, Goodson, Grant, Gruters, Ingoglia, Killebrew, La Rosa, Miller, Payne, Peters, Roth, Stark, Toledo, Trumbull
No: Ausley, Berman, Duran, Edwards, Geller, Jenne, Moskowitz, Shaw

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