Several bills addressing changes to Florida’s workers’ compensation system were filed this legislative session in response to court decisions from the state’s high court in 2016, but it remains to be seen which, if any, will make it through.
So far, the front-runners to address decisions by the Florida Supreme Court that found aspects of the Florida Workers’ Comp Act unconstitutional, and subsequently led to 14.5 percent rate hikes, are two bills – House Bill 7085 and Senate Bill 1582 – that seek to reform the state’s workers’ comp system.
HB7085, sponsored by Rep. Danny Burgess, extends the timeframe in which employees may receive certain workers’ compensation benefits from 104 weeks to 260 weeks and the timeframe for when a carrier must notify the treating doctor of certain requirements. It also revises provisions relating to retainer agreements and the awarding of attorney fees.
The industry has voiced the most support for this bill since an amendment was added by the House Commerce Committee April 6 capping attorneys’ fees at $150 an hour on approval by a judge of compensation claims (the bill originally had them capped at $250 an hour). This is meant to address the Florida Supreme Court’s decision in the case of Castellanos v. Next Door Company, which found the state’s mandatory attorneys’ fee schedule for workers’ compensation cases eliminates the right of a claimant to get a reasonable attorney’s fee — a “critical feature” of the workers’ compensation law.
The Property Casualty Insurers Association of America (PCI) said the bill as amended, “would address decisions by the Florida Supreme Court rulings that could cause workers compensation rates to increase by 14.5 percent in the state, costing Florida job creators more than $1.5 billion.”
Trey Gillespie, senior workers’ compensation director for PCI, said the most glaring difference between the House and Senate bills are the attorney fee provisions – the Senate bill has attorney fees capped at $250 an hour (if the judge of compensation claims opts to deviate from the statutory fee schedule for claimants’ attorneys), which the industry is not in favor of.
Gillespie said another aspect of SB1582, proposed by Sen. Rob Bradley, that concerns the industry is a cap placed on expenses for administrative costs of policies, like attorneys’ fees and claims adjustment expenses.
Gillespie said that the Senate bill stipulates that an insurer’s defense and cost containment expenses that exceed 15 percent for workers’ comp would be considered “excessive.” The insurer could be required to issue refunds to policyholders if it goes over that threshold.
Gillespie said that stipulation is “not a very workable way of addressing the litigious nature of the Florida Workers’ Comp Act.”
“It puts policyholders at risk, even though it promises a rebate,” he said. “It interferes with the ability of the insurance company to provide a defense for their policyholders.”
The Senate Appropriations Committee was set to hear SB1582 on Thursday and HB7085 is now ready to be heard by the full House.
Gillespie said both bills are very fluid and it is “impossible to predict what the final versions of these bills will look like,” or, if they will be passed at all.
“There is the possibility of no significant workers’ comp reform in this session,” Gillespie said. “If that is the case, not all is lost because there has been such a good and open discussion of issues that I think it would key things up pretty well for the next legislative session.”
In the meantime, Florida businesses still have a 14.5 percent rate increase to contend with and the possibility of additional rate increases next year. An actuary from the National Council on Compensation Insurance (NCCI) told the Florida House that it is reasonable to expect that there would be continued pressure on rates if reform isn’t passed.
Gillespie added that rate increases could be rolled back to some degree and instill a more stable environment for businesses if the legislature addresses the issue.
“Florida workers comp will continue to draw a lot of attention on the business and insurance community, and as such, reforms could be enacted to give relief, but the devil is always in the details,” he said. “If there’s not effective reform passed in 2017 then I am sure the business community will look at proposing reforms in 2018.”