Florida Workers' Compensation Claimants' Attorneys' Fees On The Rise Since Castellanos

Amanda Mitteer Bartley

AMANDA MITTEER BARTLEY focuses her practice on civil litigation, and primarily workers’ compensation litigation defense, on behalf of insurance companies and employers. Ms. Bartley has also secured clients in need of general liability defense and represented numerous carriers and employers in the representation of all areas of workers’ compensation. Ms. Bartley helps her clients by working closely with them to achieve positive outcomes. Her legal strategies include an emphasis on...

According to a recent study by the Workers' Compensation Research Institute (WCRI,) the average total cost per workers’ compensation claim in Florida has grown moderately in recent years, which is due to two significant decisions that were issued by the Florida Supreme Court in 2016. The Castellanos decision in April of 2016, declared the mandatory workers’ compensation attorney’s fee schedule in workers’ compensation unconstitutional as a violation of due process. See Castellanos v. Next Door Co., 124 So.3d 392 (Fla. 2016.) The Westphal decision in June of 2016 held that Florida’s 104-week limitation on temporary total disability benefits was unconstitutional as a denial of right of access to the courts. See Westphal v. City of St. Petersburg, 122 So.3d 440 (Fla. 2016.) 
In 2016 alone, immediately after these decisions, employer/carrier paid workers’ compensation claimant attorneys’ fees increased by 22%, per the National Council on Compensation Insurance, Inc. (NCCI.)
Per Judge Jack A. Weiss of the Fort Myers Office of Judges of Compensation Claims, “The analysis for an employer/carrier paid claimant counsel’s attorney's fee starts from the triumvirate of cases of Castellanos, Murray, and Lee EngineeringCastellanos allows a JCC to award an hourly fee with the statutory fee as the presumptive starting point. Murray requires that the presumptive statutory fee be a reasonable fee, and in making that determination, the JCC is to utilize the Lee Engineering factors to determine whether an upward or downward departure from the presumptive fee yields a reasonable fee.” See Powell v. Palm Automotive Mgmt., 13-020390JAW (Order Awarding Contested Attorney Fee dated May 3, 2018.) 
Judges of Compensation Claims across the state of Florida have been awarding claimants’ attorneys $350/hour. See Powell, 13-020390JAW (Order Awarding Contested Attorney Fee dated May 3, 2018) (awarding claimant’s attorney practicing before the Fort Myers District an hourly rate of $350 due to his “experience and excellent reputation in the community”) (note, the Fort Myers District had previously typically awarded $200-$250 per hour); Orozco v. Top Cut Lawn Services, 16-02583TAH (Final Order Determining Amount of Employer/Carrier Paid Attorney’s Fees dated April 26, 2018) (awarding claimant’s attorney practicing before the West Palm Beach District $350 per hour); and Brown vs. Jacksonville Fire & Rescue Dept., 12-022839WRH (Final Evidentiary Hearing Order re: Attorney Fees and/or Costs dated February 20, 2018) (awarding claimant’s attorney practicing before the Jacksonville Beach District $350.00 per hour.)
To mitigate your exposure for payment of the high hourly fees being awarded to claimants’ attorneys, ensure that you are timely and appropriately responding to all pending Petitions for Benefits. If it is unclear whether a benefit should be provided, immediately conference with your defense attorney. When medical benefits are at issue and if necessary and feasible depending upon the physician’s schedule, conference with the authorized treating physician(s) for clarification regarding the pending requested benefit before a response is due.
Upward or downward departure from the presumptive fee yields a reasonable fee.” See Powell v. Palm Automotive Mgmt., 13-020390JAW (Order Awarding Contested Attorney Fee dated May 3, 2018.) 
In contested cases, should the claimant’s attorney prevail and secure the requested benefit (for example at mediation,) make sure that you stipulate to entitlement to attorney’s fees and costs in order to “stop the clock from ticking” at the time of the stipulation (as compared to months later when additional time may be expended by the Claimant’s attorney for review of the file and preparation of a Motion for Attorney’s Fees, as well as attendance at a hearing on the matter.) 
Upon receipt of a Motion for Attorney’s Fees from the claimant’s attorney, be cognizant that Judges of Compensation Claims, in accordance with Paton v. GEICO Gen. Ins., 190 So.3d 1047 (Fla. 2016,) are now compelling employer/carrier’s defense attorneys to produce their time records less the disclosure of privileged materials. When discussing settlement authority with your defense counsel, you will want to confirm whether the claimant’s attorney’s time expended for securing the benefit matches up with the amount of time your defense counsel has spent defending the claim, before you are required to produce this information.