To say a lot has happened in Florida workers’ compensation over the course of 2016 is an understatement. 2016 was the year of Miles, Westhphal, and Castellanos. Some say it the year the playing field was somewhat leveled back out for injured workers. Others say it is the “golden age of comp.” 2016 was probably a little bit of both.
In 2016 we saw three major decisions handed down by the Florida Supreme Court that are having a huge impact on workers compensation in this great state. In Miles, we saw the Court hand down a decision that allows attorneys to charge by the hour for work performed on a case. This decision allows injured works to have a better outlet for representation. Prior to the decision in Miles, attorneys could only be paid if there was a recovery. This severely effected claimants who had cases with difficult chances of winning, such as exposure cases. Prior to the decision, an attorney who took on these extremely difficult cases were all but assured a loss due to the construction of the law as it relates to exposure.
Now, if a Claimant wants to pursue the claim to the highest level, they will have access to attorneys who will be willing to put in the time and expense on fighting and maybe end up changing the law altogether. Before, it was not that the attorneys were greedy or wouldn’t take the case for the sole reason of not “making money” it was simple business. Almost no business, law firms included, can take such big risks and expand the amount of time and money that is needed on theses types of cases if there was almost no way to get any of it back. Business, would not be in business long with that type of mentality. Additionally, it allows claimants who are not represented to procure an attorney for the sole reason of an upcoming hearing, such as a hearing to enforce settlement. Prior to this, if the injured worker did not have an attorney, they were on their own unless they could find someone to take it on a pro bono status.
Now they can come to an agreement with an attorney on a flat fee or hourly fee for representation. In Westphal, we saw the Supreme Court expand indemnity, or missed wage, benefits from 104 weeks to 260 weeks. This allows injured workers with the severest of injuries to keep getting much needed benefits for up to five years. Prior to this, no matter what state of recovery the injured worker was in, as long as not at MMI, the missed wage benefits cut off after 104 weeks. Indemnity benefits are arguably the most important. Unfortunately, when we are injured, our bills do not stop. We do not get a “pause” on our mortgage or car payments. This decision allows injured workers to receive missed wage benefits for a longer period of time while they receive treatment so that they do not lose their homes and up on the streets losing everything and becoming a burden on the tax payer.
Castellanos, brought back the provision where attorneys may receive hourly fee rates when a benefit is wrongfully denied or provided late by the insurance company. Prior to Castellanos, at most the carrier would owe the Claimant’s attorney is a disproportionately small amount for providing the benefit untimely. What was their potential reward for waiting? They would hope that the injured worker gets frustrated and just gives up and goes away or goes out and gets in a subsequent accident that would get them off the hook completely.
The Supreme Court also recognized this and opined that “oftentimes the worker experiences delay and resistance either by the employer or the carrier. Without the likelihood of an adequate attorney’s fee award, there is little disincentive for a carrier to deny benefits or raise multiple defenses.” The Court goes further to state: “the employer under the worker’s compensation law has the prerogative to raise a whole host of defenses to denying benefits, while the employee is at the mercy of the E/C in being required to see the doctors chosen by the E/C…to navigate the current workers’ compensation system, after a denial by the E/C of benefits, would be an impossibility without the assistance of an attorney.”
The changes in 2016 work to level the playing field and ensure that insurance companies to what they are supposed to do. That is to provide quick and efficient benefits to injured workers so that they can get back to work and provide for their families.
What does 2017 hold? No one is really sure. Some camps believe the legislature will work to repeal the law or change it back in some way shape or fashion. Some will say that the 2016 decisions work to “kill business” and really hurt workers due to the increase in rates. Others will tell you that it really helps businesses because the law works to make sure insurance companies do what they are supposed to do so that your employees are back in the work force in a more timely fashion.
Over the past seventeen years Mr. Masnikoff has been practicing, he has seen the law change many times, usually for the worse. In 2016 the law has changed for the better to help injured workers. Do not allow insurance companies and other big business to influence your legislature in 2017. Let your representatives know how you feel about workers compensation and that these decisions are the best for the state, injured workers, and business. These situations can become extremely complex. We take the time to make sure that you fully understand this complex and frustrating law. We would love to discuss your case and explain all of your options to make sure that you receive the benefits that you are entitled to under the law. If you or someone you know is in this situation, please give us a call at (877) 817-4127.