Florida Supreme Court Weighs Workers’ Comp Attorney Fee Schedule

The Florida Supreme Court is considering whether to declare the state’s workers’ compensation attorney fee schedule unconstitutional.

The court recently heard arguments in a case (Castellanos v. Next Door Company, SC13-2082) addressing the attorney fee schedule passed in 2003 as part of workers’ compensation reform. Proponents of the fee reform argued that attorney involvement was one of the main reasons Florida’s workers’ compensation rates then were among the highest of the nation.

Since then, rates have dropped by more than 50 percent, including a 5.2 percent drop to take effect Jan. 1, 2015.

The case before the court involves Marvin Castellanos who was injured in an altercation with another employee in 2009. Castellanos’ employer and its insurer, Amerisure Insurance, paid for Castellanos to see a doctor but denied his claims for additional medical care. Castellanos’s attorney won him additional benefits of $822.70. Based on the schedule, the attorney was awarded $164.54 for 107 hours of work, a rate of $1.54 per hour.

Richard Sicking, representing Castellanos, said the fee schedule is unconstitutional because it hinders an injured worker’s right to due process and access to courts since attorneys would not work on such small claims. Additionally, he argued that the Legislature overstepped by preventing workers’ compensation judges from weighing-in on what should be “reasonable fees.”

Raoul Cantero, representing the Next Door Co. and Amerisure, said the case has little to do with injured workers and rests solely on the desire of attorneys to increase their compensation.

But several justices questioned whether injured workers could represent themselves in such cases due to the complexity of the law. Asked whether he would represent an injured worker for $1.54 per hour, Cantero answered, “I can’t say whether I would or not.”

“If this court were to overturn the legislation, the result would significantly impact the workers’ compensation market in Florida and will directly impact the availability and affordability of workers’ compensation insurance,” according to an amicus brief submitted by the Property Casualty Insurers of America, the Florida Insurance Council and other insurance trade groups.

However, the justices questioned whether the reforms are still justified by the circumstances cited back in 2003. Judge Barbra Pariente said that insurers are operating profitably. She also noted the rise in defense legal expenditures.

“To pick on this particular issue where claimants need attorneys and say that was the reason that’s the overpowering public necessity, I think that reasoning is flawed,” said Pariente. “It sounds good but it doesn’t really hold up in anything that’s in the public record.”