The Committee Substitute for HB 903 - CS/HB 903 - is out.  The revised bill: (1) deletes the detailed legislative findings of fact contained in the original bill;  and (2) requires that claimant's attorney's fees be "equal to" the various percentages of benefits secured set out in the statute instead of, as in the original bill, allowing the fees to be "less than or equal to" those percentages.

The Miami Herald reports that the bill is now headed for a vote on the floor of the House as early as next week.

Driving the furor over pending legislative attempts to limit the amount of claimant's attorney's fees are concerns over the effects those fees will have on the premiums charged to employers to obtain workers' compensation insurance coverage.  Those premiums have decreased on average by 60.5% since the 2003 legislative reforms were enacted, including an 18.6% decrease for 2009.  But after the Florida Supreme Court issued its decision in Murray v. Mariner Health last October, the Office of Insurance Regulation approved a rate increase of 6.4% to account for the costs anticipated to result from the decision.

Yet there appears to be another factor which is just as likely to drive up the cost of insurance - the fees which hospitals are allowed to charge under the medical fee schedule for medical care provided to injured workers.  So says Joe Paduda in this post to his Managed Care Matters blog, and so says Florida TaxWatch in this recently released report. The problem?  According to Paduda, under a proposed amendment to Fla. Admin. Code R. 69L-7.501, hospitals will be allowed to charge 74% more than Medicare for surgeries and almost four times more than Medicare for outpatient services.

SB 2072, which is identical to CS/HB 903, has now been placed on the Senate Banking and Insurance Committee's agenda for Wednesday, March 25.

Meanwhile, the Palm Beach Post editorialized against these bills in its Sunday edition.

SB 2072, which is identical to CS/HB 903, passed the Senate Insurance and Banking Committee on March 25 by a vote of 6-3.  It now moves to the Senate Judiciary Committee for consideration. An amendment to the bill proposed by Sen. Al Lawson (D-Tallahassee), the Senate Minority Leader, was defeated. 

In the meantime, CS/HB 903 is headed to the House floor for a vote on Thursday, March 26.

CS/HB 903 passed in the Florida House of Representatives on March 31 by a target="_blank" rel="nofollow" vote of 84-35.   Several days earlier, the House rejected an amendment to the bill which would have (1) repealed §440.105(3)(c) which makes it unlawful for a claimant's attorney to receive a fee which has not been approved by the judge of compensation claims, (2) amended §440.20(11)(c) to permit a claimant's attorney to collect a fee from his client in connection with a settlement which is subject only to the limitations on fees imposed by the Florida Supreme Court, (3) amended §440.34(1) to provide for the award of a carrier-paid claimant's attorney's fee in cases where the benefits requested in a petition for benefits were not provided within 30 days of the carrier's receipt of the petition, (4) increased the permissible percentages for claimant's attorney's fees to 25% of the first $5,000 in benefits obtained, 20% of the next $5,000, and 15% of the remaining benefits secured, and (5) provided that in no event should the carrier-paid claimant's attorney's fee awarded be less than the fees charged by the carrier's lawyer for defending the claim. 

Meanwhile, SB 2072, the Senate counterpart to the House bill, was due to be considered by the Senate Judiciary Committee on April 1 but was temporarily postponed.  No official word yet on when the committee will take up the bill.

The News Service of Florida reports that Sen. Lee Constantine (R- Altamonte Springs), chairman of the Senate Judiciary Committee, has vowed that SB 2072 will come up for a vote in his committee despite yesterday's postponement.  "We are not going to have a filibuster on this thing," said the chairman.  He also reportedly criticized both sides of the debate over attorney's fees for failing to work hard enough to reach a compromise.

The Senate Judiciary Committee is set to consider SB 2072 its meeting on April 15.  Still pending before the committee are two proposed amendments to the bill (690702 and 906380) which were filed on March 31.

The General Government Appropriations Committee is also set to consider the bill, but there's no word yet on when that will happen.

By a margin of 8-1, the Senate Judiciary Committee voted favorably on SB 2072 yesterday, but with  substantial amendments which had been offered by the trial bar.  One amendment to the bill (549680) provides that the

fee payable under this subsection may be increased up to the fee paid by the employer or carrier to the employer’s or carrier’s attorneys if it is determined that the employer or carrier engaged in a bad faith denial of benefits, unreasonably delayed furnishing benefits that were due and owing, or unreasonably continued or increased the expense of litigation.

All committee members except Sen. Garrett Richter (R-Naples), the sponsor of the original bill, voted in favor.  The bill now moves to the Senate Committee on General Government Appropriations which, as the News Service of Florida reports here, may restore the bill to its original form.  The committee is set to take up the bill on April 20.

The Senate Judiciary Committee's substitute for SB 2072 - CS/SB 2072 - has now been posted online by the legislature.  As amended, the bill would:

CS/CS/SB 2072 has now been voted favorably out of the Senate Committee on General Government Appropriations by a vote of 5-0.  In addition to the changes to the original bill which I discussed in my April 18 post, the new committee substitute exempts from the restrictions of §440.34 fees for attorneys who successfully represent "first responders" in claims arising out of an "occupational disease" as that term is defined in  §112.1815.  As I discussed here, in 2007 the legislature made special provision for first responders with respect to occupational diseases.

The editorial board of the Palm Beach Post has endorsed CS/CS/SB 2072 - the so-called "Murray compromise" bill.  Click here to read.

The problem of illegal immigration continues to spill over into the area of workers' compensation law.  Take the tragic case of Victor Leon.  Victor is an illegal immigrant who, while working for Altec Roofing on a construction project in Palm City, fell off the roof of a three-story building.  The accident resulted in his permanently paralysis. You can read a newspaper account of his story here.

Victor says that his employer knew all about his immigration status and that before his accident they even helped him to obtain a fake social security number.  The newspaper account suggests that all of this puts him "at the crux of the debate" about his rights right to receive workers' compensation benefits as a result of his accident. 

But at this point, absent further action by the legislature, that debate is actually over.  The First DCA has now held that using a fake social security number just to obtain employment does not justify the forfeiture of an injured worker's right to workers' compensation benefits for an on-the-job accident.   Rather, §440.09(4)(a) requires that an injured worker make a false statement "for the purpose of securing workers' compensation benefits" before the ultimate sanction of forfeiture may be imposed.  See Matrix Employee Leasing v. Hernandez, 975 So.2d 1217 (Fla. 1st DCA 2008).  So unless there are other facts about the case which weren't reported, his illegal status does not affect his right to workers' compensation benefits.

But Victor has another problem.  A post-accident drug test revealed the presence of cocaine and marijuana in his system.  Section 440.09(3) says that workers' compensation benefits for an otherwise compensable accident are not payable if the injury "was occasioned primarily. . . by the influence of any drugs. . . not prescribed by a physician."  And §440.09(7)(b) creates a presumption that the injury was occasioned primarily by the presence of a drug when a post-accident test confirms its presence in the worker's system at the time of the accident.

Apparently, Victor has retained an expert who has testified that the drugs in his system at the time of the accident did not actually impair him.  But rather than seeking an adjudication of his right to workers' compensation benefits before the judge of compensation claims, Victor took another approach.  After initially filing a petition for benefits, he voluntarily dismissed that petition and instead filed a tort claim against his employer in circuit court - evidently on an estoppel theory.  That is, Victor argues, having elected to controvert the compensability of his accident under the Florida Workers' Compensation Law, the employer/carrier should now be estopped to claim workers' compensation immunity to a claim for tort liability. 

Unfortunately for Victor, the courts haven't really bought into this estoppel argument lately, and the circuit court granted Altec's motion for summary judgment.  And, citing Tractor Supply Co. v. Kent, 966 So.2d 978 (Fla. 5th DCA 2007), a case which I discussed here and here, the Fourth DCA last week affirmed that decision.  So as far as any remedy against Altec Roofing is concerned, I suppose it's back to the workers' compensation forum for Victor at this point.

By a vote of 39-0, the Senate yesterday passed CS/CS/SB 2072, the so-called "Murray Compromise" bill.  But on motion by Rep. Anitere Flores (R-Miami), the original sponsor of CS/HB 903, the House refused to concur.  The bill is now "in messages" with a request by the House for the Senate to recede.  

Today is the final day of the regular legislative session.  Although a one-week extension of the session has been scheduled, that week will be used only to resolve budgetary issues.  So unless there's some dramatic movement today, it looks as though these attorney's fee bills are dead.   

I said in yesterday's post that unless there was some dramatic movement on the last day of the legislative session, the workers' compensation attorney's fee bills were dead.  Well, there was some dramatic movement. In the final hours of the session, the Senate receded from CS/CS/SB 2072 and adopted C/S HB 903 by a vote of 22-16, with two members not voting.  The vote split predictably along party lines, although 5 Republicans (Sen. Dockery (R-Lakeland), Sen. Garcia (R-Hialeah), Sen. Jones (R-Seminole), Sen. Peaden (R-Crestview), and Sen. Villalobos (R-Miami) broke rank and voted no, and 2 Democrats (Sen. Siplin (D-Orlando) and Sen. Smith (D-West Palm Beach)) voted yes.  The Miami Herald has the story here, and the St. Pete Times has this coverage.

Why the last-minute shift?  Who knows, but there had been rumors that the workers' compensation bill was being used by the Senate as a "bargaining chip" to get something from the House that it wanted, namely, this property insurance bill which the Senate favored over the comparable House version. The House adopted this measure yesterday by a vote of 80-35.

All eyes are now focused on Gov. Crist to see whether he will veto CS/HB 903.  Under the Florida Constitution, he must veto the measure within seven days after its presentation, or within 15 days after its presentation if the legislature adjourns in the interim, or it automatically becomes law.

This is a little off-topic, but yesterday the U.S. Supreme Court weighed in on the issue of an employee's use of a fake social security number in obtaining employment in this country .  See Flores-Figueroa v. U.S., decided on 5/4/2009.

Ignacio Flores-Figueroa is a citizen of Mexico who gave his prospective U.S. employer a false name, birth date, and social security number, along with a counterfeit alien registration card, in order to gain employment. The social security number and the number on the alien registration card were not those of a real person.  Later, however, he presented his employer with new counterfeit social security and alien registration cards.  These cards, unlike the earlier alien registration card, used his real name.  But this time the numbers on both cards were real numbers which were in fact assigned to other U.S. citizens.  Based on these facts, Flores-Figueroa was found guilty of "aggravated identity theft" [18 U.S.C. §1028A)(a)(1)], which provides for an enhanced sentence to anyone who "knowingly. . . uses. . . a means of identification of another person. . ." in the commission of another crime.

The key words there are "knowingly" and "another person."  A unanimous U.S. Supreme Court reversed Flores-Figueroa's enhanced sentence, holding that the statute requires proof that the defendant knew that the fake number belonged to another person, not just that the number was false.  Although there was evidence that Flores-Figueroa knew that the social security number that he gave his employer was not his own, there was no evidence that he knew that the number really belonged to someone else.  The ABA Journal has this report on the decision.

Though similar to the federal statute which was at issue in Flores-Figueroa,  §440.105(4)(b)9, Fla. Stat., is worded slightly differently.  Florida's statute makes it unlawful for anyone "to knowingly present or cause to be presented any false, fraudulent, or misleading oral or written statement to any person as evidence of identity for the purpose of obtaining employment or filing or supporting a workers' compensation claim."   Because there is no requirement in Florida's statute that the accused know that the identification actually belongs to "another person," I doubt that the Flores-Figueroa decision would be controlling in a case involving §440.105(4)(b)9.

Gov. Crist visited the Clearwater Regional Chamber of Commerce last night and, according to "The Buzz," the political blog of the St. Pete Times, had this exchange with the president of the chamber:

“We’d really like to see you support House bill 903,” Bob Clifford, president of the Clearwater chamber, told Crist, who was accompanied by his wife, Carole.

“I better write it down then - what's it do?” Crist asked.

 “Workers compensation.”

“Oh yeah, yeah, yeah,” Crist said, noting he met with Florida Chamber president Mark Wilson about it.

At the end, he was pressed again by another chamber official.

“Got it. Got it. I understand: 360, workers compensation. Got it in my notes,” Crist said, again making no promise.

In this column, Howard Troxler of the St. Pete Times has recommended that Gov. Crist veto several bills from the just-concluded legislative session, including CS/HB 903.

The clock is now ticking on any decision by Governor Crist to veto CS/HB 903.  The legislature adjourned its session on May 8 and presented the bill to the governor on May 15.  Thus, under Art. III, §8(a), Fla. Const., he must veto it within 15 days of the latter date, or by May 30, or it automatically becomes law.  See Fla. Soc. of Ophthalmology v. Fla. Optometric Ass'n, 489 So.2d 1118 (Fla. 1986)(holding that this constitutional provision affords the governor 15 days from presentment to veto those bills submitted to him after the legislature has adjourned sine die).

In this letter reprinted in the May 18 edition of the Palm Beach Post, Bill Herrle, the Florida executive director of the National Federation of Independent Business, urges Governor Crist to sign CS/HB 903.  Mr. Herrle rejects as "unfounded" any fears that the bill will make it more difficult for injured workers to obtain representation in workers' compensation cases.  And police and firefighters' unions which have urged a veto are just being "selfish" because a veto will "hamstring" small businesses with "unnecessarily high [insurance] rates."

But echoing the views expressed by Howard Troxler in his May 10 column, the editorial board of the St. Pete Times has called on Governor Crist to veto the bill in this May 18 editorial.  The editors note that if an attorney can earn only $8 an hour, as in Murray, he simply will not take case - even when the employer/carrier clearly owes the benefits in question.

Governor Crist has signed CS/HB 903.  The Orlando Sentinel has the story here.

The bill takes effect on July 1, 2009.  I have never known an amendment to  §440.34 to be given retroactive effect.  Thus, the amendment almost certainly will not apply to existing claims, but only to accidents which occur on or after July 1.

Constitutional challenges will surely follow.  More later.