On April 20, 2016, Florida’s First District Court of Appeal published it’s holding in Miles v. City of Edgewater Police. This case dealt with a police officer who was bringing a Workers’ Compensation claim based on injuries sustained due to exposure to various chemicals while pursing active criminal cases.
Under the current law in Florida, many view exposure claims as the most expensive to litigate due to the guaranteed need for expert testimony, and most difficult to prove. In order to succeed on an exposure claim, one must prove by clear and convincing evidence: first, that he or she was in fact exposed to the specific substance, second, the level of exposure, and third, that the level of exposure to the specific substance can cause the injury or disease sustained.
The second prong is the most difficult. It is practically impossible for one to prove the level of exposure at the time of exposure. Very few of us walk around in our daily lives with air quality tests in our back pocket.
Attorney’s in Florida, who practice in the Workers’ Compensation arena, were bound by only receiving contingent fees based on the value of benefits secured for the injured worker. What if no benefits are awarded and the Claim is denied by the Judge of Compensation Claims? Oh well, the attorney does not get paid and the Claimant may be on the hook for paying defense costs. This is especially evident in exposure cases. Why would an attorney, or a person in any industry, take a case or project on where the likelihood of success is so low that you will likely receive nothing for the hours and hard work that is put in? On top of it, you may expose your client to liability for the other sides costs. As evidenced by the Miles Court in it’s holding, attorneys will not take such cases.
What if the injured worker wants to pursue her case to a Final Hearing regardless? Good luck on your own because attorneys most likely wont be able to help at the Final Hearing stage of the game. It is not because they don’t want to or are afraid., it is because it is not economically feasible to take on such a case.
That just changed with Miles. Miles, involved a retainer agreement and then hourly fee construct as opposed to the “fees based on value of benefits” structure. The Judge of Compensation Claims ruled the this was not allowed, but the First DCA overruled the decision on several constitutional grounds.
How does this help the injured worker? Immensely. For starters, more attorneys will be willing to take on exposure claims if they know that they wont go bankrupt fighting the insurance company.
They have an alternative route to get fees and costs, even if unsuccessful. In addition to that, it may work to prompt insurance carriers to take a harder look at exposure claims being brought.
Previously, Employer/Carrier’s would offer very little money on exposure claims because they were all but guaranteed that no attorney would bring them to the Final Hearing level. Now, if they know that they have more of a fight coming, they may offer more money to settle exposure claims before they get to the Hearing.
In addition to this, one other key area this will help you, is after your case has gone to a hearing and you lost, or after your case is settled. Florida’s Workers Compensation system is a “loser pays” system. What does that mean? What that means is that if you go to a hearing or have a Petition dismissed, the other side may seek to tax costs against you. Previously, you would have had a hard time finding an attorney to represent you in such a hearing because there would be no benefit that she would procure so no way to get paid. Now, you and an attorney can enter into a retainer agreement based on an hourly fee or flat rate, so that you have adequate representation and are not walking into the Lion’s den.
Also, many claimants look for representation after a case is settled and for some reason or another the settlement is on the verge of falling through or the Claimant does not wish to proceed for a variety of reasons. A Motion to Enforce Settlement will be filed and hearing on the matter set before the Judge of Compensation Claims. Many times, at this stage, the injured worker is no longer represented and left to appear at the hearing with seasoned attorney’s unrepresented. Even if they wanted an attorney to help them at the Motion to Enforce Hearing, they would not be able to get one because the attorney could not get paid. She would not be securing any benefit and therefor would not be entitled to a fee. Now, pursuant to Miles, these workers will be able to contract with an attorney to represent them at the Hearing and the attorney will not have to worry about getting paid.
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.
