HB 311

1	A bill to be entitled
2	An act relating to workers' compensation; amending s.
3	440.34, F.S.; revising provisions relating to the award of
4	attorney's fees; removing a provision prohibiting an award
5	of attorney's fees under certain conditions; removing a
6	provision entitling a claimant to recover attorney's fees
7	from a carrier or employer under certain conditions;
8	removing a provision establishing a lien in cases in which
9	a claimant is responsible for the payment of his or her
10	own attorney's fees; removing a prohibition on judges
11	entering an order approving the contents of specified
12	retainer agreements; providing that a judge of
13	compensation claims may approve certain alternative
14	attorney's fees in certain limited cases; providing an
15	effective date.
16
17	Be It Enacted by the Legislature of the State of Florida:
18
19	Section 1.  Section 440.34, Florida Statutes, is amended to
20	read:
21	440.34  Attorney's fees; costs.--
22	(1)  A fee, gratuity, or other consideration may not be
23	paid for a claimant in connection with any proceedings arising
24	under this chapter, unless approved as reasonable by the judge
25	of compensation claims or court having jurisdiction over such
26	proceedings. Any attorney's fee approved by a judge of
27	compensation claims for benefits secured on behalf of a claimant
28	must equal to 20 percent of the first $5,000 of the amount of
29	the benefits secured, 15 percent of the next $5,000 of the
30	amount of the benefits secured, 10 percent of the remaining
31	amount of the benefits secured to be provided during the first
32	10 years after the date the claim is filed, and 5 percent of the
33	benefits secured after 10 years. The judge of compensation
34	claims shall not approve a compensation order, a joint
35	stipulation for lump-sum settlement, a stipulation or agreement
36	between a claimant and his or her attorney, or any other
37	agreement related to benefits under this chapter that provides
38	for an attorney's fee in excess of the amount permitted by this
39	section. The judge of compensation claims is not required to
40	approve any retainer agreement between the claimant and his or
41	her attorney. The retainer agreement as to fees and costs may
42	not be for compensation in excess of the amount allowed under
43	this section.
44	(2)  In awarding a claimant's attorney's fee, the judge of
45	compensation claims shall consider only those benefits secured
46	by the attorney. An attorney is not entitled to attorney's fees
47	for representation in any issue that was ripe, due, and owing
48	and that reasonably could have been addressed, but was not
49	addressed, during the pendency of other issues for the same
50	injury. The amount, statutory basis, and type of benefits
51	obtained through legal representation shall be listed on all
52	attorney's fees awarded by the judge of compensation claims. For
53	purposes of this section, the term "benefits secured" does not
54	include future medical benefits to be provided on any date more
55	than 5 years after the date the claim is filed. In the event an
56	offer to settle an issue pending before a judge of compensation
57	claims, including attorney's fees as provided for in this
58	section, is communicated in writing to the claimant or the
59	claimant's attorney at least 30 days prior to the trial date on
60	such issue, for purposes of calculating the amount of attorney's
61	fees to be taxed against the employer or carrier, the term
62	"benefits secured" shall be deemed to include only that amount
63	awarded to the claimant above the amount specified in the offer
64	to settle. If multiple issues are pending before the judge of
65	compensation claims, said offer of settlement shall address each
66	issue pending and shall state explicitly whether or not the
67	offer on each issue is severable. The written offer shall also
68	unequivocally state whether or not it includes medical witness
69	fees and expenses and all other costs associated with the claim.
70	(3)  If any party should prevail in any proceedings before
71	a judge of compensation claims or court, there shall be taxed
72	against the nonprevailing party the reasonable costs of such
73	proceedings., not to include attorney's fees. A claimant shall
74	be responsible for the payment of her or his own attorney's
75	fees, except that a claimant shall be entitled to recover a
76	reasonable attorney's fee from a carrier or employer:
77	(a)  Against whom she or he successfully asserts a petition
78	for medical benefits only, if the claimant has not filed or is
79	not entitled to file at such time a claim for disability,
80	permanent impairment, wage-loss, or death benefits, arising out
81	of the same accident;
82	(b)  In any case in which the employer or carrier files a
83	response to petition denying benefits with the Office of the
84	Judges of Compensation Claims and the injured person has
85	employed an attorney in the successful prosecution of the
86	petition;
87	(c)  In a proceeding in which a carrier or employer denies
88	that an accident occurred for which compensation benefits are
89	payable, and the claimant prevails on the issue of
90	compensability; or
91	(d)  In cases where the claimant successfully prevails in
92	proceedings filed under s. 440.24 or s. 440.28.
93
94	Regardless of the date benefits were initially requested,
95	attorney's fees shall not attach under this subsection until 30
96	days after the date the carrier or employer, if self-insured,
97	receives the petition.
98	(4)  In such cases in which the claimant is responsible for
99	the payment of her or his own attorney's fees, such fees are a
100	lien upon compensation payable to the claimant, notwithstanding
101	s. 440.22.
102	(4)(5)  If any proceedings are had for review of any claim,
103	award, or compensation order before any court, the court may
104	award the injured employee or dependent an attorney's fee to be
105	paid by the employer or carrier, in its discretion, which shall
106	be paid as the court may direct.
107	(6)  A judge of compensation claims may not enter an order
108	approving the contents of a retainer agreement that permits the
109	escrowing of any portion of the employee's compensation until
110	benefits have been secured.
111	(5)(7)  If an attorney's fee is owed under paragraph
112	(3)(a), The judge of compensation claims may approve an
113	alternative attorney's fee not to exceed $1,500 only once per
114	accident in those limited cases in which the value of medical
115	benefits secured under subsection (1) would result in an
116	attorney's fee award of less than $1,500, based on a maximum
117	hourly rate of $150 per hour, if the judge of compensation
118	claims expressly finds that the attorney's fee amount provided
119	for in subsection (1), based on benefits secured, fails to
120	fairly compensate the attorney for disputed medical-only claims
121	as provided in paragraph (3)(a) and the circumstances of the
122	particular case warrant such action.
123	Section 2.  This act shall take effect July 1, 2009.

CODING: Words stricken are deletions; words underlined are additions.