Florida Senate - 2017                          SENATOR AMENDMENT
       Bill No. CS/HB 7085, 1st Eng.
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                 Floor: WD/2R          .                                
             05/05/2017 09:27 AM       .                                

       Senator Brandes moved the following:
    1         Senate Amendment to Amendment (655850) 
    3         Delete lines 359 - 636
    4  and insert:
    5  petition, including attorney fees, not to exceed $150 per hour,
    6  based on the number of necessary hours related to the
    7  determination that the claimant or, if the claimant is
    8  represented by counsel, the claimant’s attorney has not made a
    9  good faith effort to resolve the dispute.
   10         (5)(a) All motions to dismiss must state with particularity
   11  the basis for the motion. The judge of compensation claims shall
   12  enter an order upon such motions without hearing, unless good
   13  cause for hearing is shown. Dismissal of any petition or portion
   14  of a petition under this subsection is without prejudice.
   15         (b) Upon motion that a petition or portion of a petition be
   16  dismissed for lack of specificity, the judge of compensation
   17  claims shall enter an order on the motion, unless stipulated in
   18  writing by the parties, within 10 days after the motion is
   19  filed, or, if good cause for hearing is shown, within 20 days
   20  after hearing on the motion. When any petition or portion of a
   21  petition is dismissed for lack of specificity under this
   22  subsection, the claimant must be allowed 20 days after the date
   23  of the order of dismissal in which to file an amended petition.
   24  Any grounds for dismissal for lack of specificity under this
   25  section which are not asserted within 30 days after receipt of
   26  the petition for benefits are thereby waived.
   27         (7) Notwithstanding the provisions of s. 440.34, a judge of
   28  compensation claims may not award attorney attorney’s fees
   29  payable by the employer or carrier for services expended or
   30  costs incurred before prior to the filing of a petition that
   31  does not meet the requirements of this section.
   32         Section 7. Paragraphs (c) and (j) of subsection (4) of
   33  section 440.25, Florida Statutes, are amended to read:
   34         440.25 Procedures for mediation and hearings.—
   35         (4)
   36         (c) The judge of compensation claims shall give the
   37  interested parties at least 14 days’ advance notice of the final
   38  hearing, served upon the interested parties by mail or by
   39  electronic means approved by the Deputy Chief Judge. At least 5
   40  days before the final hearing, the claimant’s attorney must file
   41  with the judge of compensation claims and serve on all
   42  interested parties a personal attestation detailing his or her
   43  hours to date, which specifically allocates the hours by each
   44  benefit claimed, and accounting for hours relating to multiple
   45  benefits in a manner that apportions such hours by percentage,
   46  in whole numbers, to each benefit.
   47         (j) A judge of compensation claims may not award interest
   48  on unpaid medical bills and the amount of such bills may not be
   49  used to calculate the amount of interest awarded. Regardless of
   50  the date benefits were initially requested, attorney attorney’s
   51  fees do not attach under this subsection until 45 30 days after
   52  the date the carrier or self-insured employer receives the
   53  petition.
   54         Section 8. Section 440.34, Florida Statutes, is amended to
   55  read
   56         440.34 Attorney Attorney’s fees; costs.—
   57         (1) A judge of compensation claims may award attorney fees
   58  payable to the claimant pursuant to this section to be paid by
   59  the employer or carrier. An employer or carrier may not pay a
   60  fee, gratuity, or other consideration may not be paid for a
   61  claimant in connection with any proceedings arising under this
   62  chapter, unless approved by the judge of compensation claims or
   63  court having jurisdiction over such proceedings. Attorney fees
   64  awarded Any attorney’s fee approved by a judge of compensation
   65  claims for benefits secured on behalf of a claimant must equal
   66  to 20 percent of the first $5,000 of the amount of the benefits
   67  secured, 15 percent of the next $5,000 of the amount of the
   68  benefits secured, 10 percent of the remaining amount of the
   69  benefits secured to be provided during the first 10 years after
   70  the date the claim is filed, and 5 percent of the benefits
   71  secured after 10 years. A The judge of compensation claims shall
   72  not approve a compensation order, a joint stipulation for lump
   73  sum settlement, a stipulation or agreement between a claimant
   74  and his or her attorney, or any other agreement related to
   75  benefits under this chapter which provides for an attorney’s fee
   76  in excess of the amount permitted by this section. The judge of
   77  compensation claims is not required to approve any retainer
   78  agreement between the claimant and his or her attorney is not
   79  subject to approval by a judge of compensation claims but must
   80  be filed with the Office of the Judges of Compensation Claims.
   81  Notwithstanding s. 440.22, attorney fees are a lien upon
   82  compensation payable to the claimant. A retainer agreement may
   83  not place any portion of the employee’s compensation into an
   84  escrow account until benefits are secured. The retainer
   85  agreement as to fees and costs may not be for compensation in
   86  excess of the amount allowed under this subsection or subsection
   87  (7).
   88         (2)(a) In awarding a claimant’s attorney fees attorney’s
   89  fee, a the judge of compensation claims must shall consider only
   90  those benefits secured by the attorney. An Attorney is not
   91  entitled to attorney’s fees are not due in any of the following
   92  circumstances:
   93         1. For representation in any issue that was ripe, due, and
   94  owing and that reasonably could have been addressed, but was not
   95  addressed, during the pendency of other issues for the same
   96  injury;
   97         2. On claimant attorney hours related to a benefit upon
   98  which the claimant did not prevail; or
   99         3. On claimant attorney hours that the judge of
  100  compensation claims apportions to benefits upon which the
  101  claimant did not prevail, pursuant to paragraph (5)(d).
  102         (b) The amount, statutory basis, and type of benefits
  103  obtained through legal representation shall be listed on all
  104  attorney attorney’s fees awarded by a the judge of compensation
  105  claims. For purposes of this section, the term “benefits
  106  secured” does not include future medical benefits to be provided
  107  on any date more than 5 years after the date the petition claim
  108  is filed. In the event an offer to settle an issue pending
  109  before a judge of compensation claims, including attorney
  110  attorney’s fees as provided for in this section, is communicated
  111  in writing to the claimant or the claimant’s attorney at least
  112  30 days before prior to the trial date on such issue, for
  113  purposes of calculating the amount of attorney attorney’s fees
  114  to be taxed against the employer or carrier, the term “benefits
  115  secured” includes shall be deemed to include only that amount
  116  awarded to the claimant above the amount specified in the offer
  117  to settle. If multiple issues are pending before a the judge of
  118  compensation claims, said offer of settlement must shall address
  119  each issue pending and shall state explicitly whether or not the
  120  offer on each issue is severable. The written offer must shall
  121  also unequivocally state whether or not it includes medical
  122  witness fees and expenses and all other costs associated with
  123  the claim.
  124         (3) If a any party prevails should prevail in any
  125  proceedings before a judge of compensation claims or court,
  126  there shall be taxed against the nonprevailing party the
  127  reasonable costs of such proceedings, not to include attorney
  128  attorney’s fees. A claimant is responsible for the payment of
  129  her or his own attorney attorney’s fees, except that a claimant
  130  is entitled to recover attorney fees an attorney’s fee in an
  131  amount equal to the amount provided for in subsection (1),
  132  subsection (5), or subsection (6) (7) from a carrier or
  133  employer:
  134         (a) Against whom she or he successfully asserts a petition
  135  for medical benefits only, if the claimant has not filed or is
  136  not entitled to file at such time a claim for disability,
  137  permanent impairment, wage-loss, or death benefits, arising out
  138  of the same accident;
  139         (b) In a any case in which the employer or carrier files a
  140  response to petition denying benefits with the Office of the
  141  Judges of Compensation Claims and the injured person has
  142  employed an attorney in the successful prosecution of the
  143  petition;
  144         (c) In a proceeding in which a carrier or employer denies
  145  that an accident occurred for which compensation benefits are
  146  payable, and the claimant prevails on the issue of
  147  compensability; or
  148         (d) In cases in which where the claimant successfully
  149  prevails in proceedings filed under s. 440.24 or s. 440.28.
  151  Regardless of the date benefits were initially requested,
  152  attorney attorney’s fees do shall not attach under this
  153  subsection until 45 30 days after the date the carrier or
  154  employer, if self-insured, receives the petition.
  155         (4) In such cases in which the claimant is responsible for
  156  the payment of her or his own attorney’s fees, such fees are a
  157  lien upon compensation payable to the claimant, notwithstanding
  158  s. 440.22.
  159         (4)(5) If any proceedings are had for review of any claim,
  160  award, or compensation order before any court, the court may, in
  161  its discretion, award the injured employee or dependent attorney
  162  fees an attorney’s fee to be paid by the employer or carrier, in
  163  its discretion, which shall be paid as the court may direct.
  164         (5)(a) As used in this subsection, the term:
  165         1.“Attorney hours” means the number of hours necessary for
  166  the claimant’s attorney to obtain the benefits secured, as
  167  determined by a judge of compensation claims. The term only
  168  includes hours expended by the claimant’s attorney reasonably
  169  related to claimed benefits upon which the claimant prevailed.
  170         2.“Customary fee” means the average hourly rate that an
  171  attorney for a claimant customarily charges in the same locality
  172  for similar legal services under this chapter, as determined by
  173  a judge of compensation claims.
  174         3.“Departure fee” means the amount of attorney fees
  175  calculated by a judge of compensation claims in place of the fee
  176  allowed under subsection (1) when attorney fees are due under
  177  this section.
  178         (b) A departure fee under this subsection is in place of,
  179  not in addition to, the amount allowed under subsection (1) or
  180  subsection (6).
  181         (c) Upon a petition for a departure fee, a judge of
  182  compensation claims may depart from the attorney fees amount set
  183  forth in subsection (1) upon a finding that the attorney fees
  184  provided for in that subsection are less than 60 percent or
  185  greater than 125 percent of the customary fee when the amount
  186  allowed under subsection (1) is converted to an hourly rate by
  187  dividing that amount by the attorney hours necessary to obtain
  188  the benefits secured.
  189         (d)1. When resolving a petition for a departure fee under
  190  this subsection, a judge of compensation claims must determine
  191  the number of attorney hours by making detailed findings that
  192  specifically allocate and account for the attorney hours to each
  193  benefit claimed by the claimant’s attorney that, in the
  194  independent discretion of the judge of compensation claims,
  195  reasonably relate to:
  196         a. Benefits upon which the claimant prevailed;
  197         b. Benefits upon which the claimant did not prevail; and
  198         c. Multiple benefits, regarding which the judge of
  199  compensation claims shall exercise independent discretion and
  200  apportion such hours by percentage, in whole numbers, to each
  201  benefit claimed.
  202         2.A judge of compensation claims must reduce the number of
  203  attorney hours if the judge of compensation claims independently
  204  determines that the number of attorney hours is excessive.
  205         (e) A judge of compensation claims may determine the
  206  customary fee and is not limited to an average hourly rate or
  207  number of attorney hours pled by a party. In determining the
  208  customary fee, the judge of compensation claims may rely on
  209  evidence or take notice of credible data, including attorney fee
  210  data on file with the Office of the Judges of Compensation
  211  Claims or The Florida Bar. The judge of compensation claims may
  212  not exceed the amount or hours pled by the claimant’s attorney.
  213         (f) If a departure is permitted pursuant to paragraph (c),
  214  a judge of compensation claims must consider the following
  215  factors when departing from the amount set forth in subsection
  216  (1):
  217         1. The time and labor reasonably required, the novelty and
  218  difficulty of the questions involved, and the skill required to
  219  properly perform the legal services as established by evidence
  220  or as independently determined by the judge of compensation
  221  claims.
  222         2. The customary fee.
  223         3. The experience, reputation, and ability of the attorney
  224  or attorneys providing services.
  225         4. The time limits imposed by the circumstances.
  226         5. The contingency or certainty of a claimant’s attorney
  227  fee, taking into account any retainer agreement filed under this
  228  section.
  229         6. The volume of hours expended by the claimant’s attorney
  230  which were devoted to issues upon which the claimant prevailed,
  231  and the volume of hours expended devoted to issues upon which
  232  the claimant did not prevail.
  233         7. Whether the total fee available under this section in
  234  relation to the amount involved in the controversy is excessive.
  235         8. Whether the total fee available under this section in
  236  relation to the amount of benefits secured is excessive.
  237         9. Whether the departure fee sought by the claimant’s
  238  attorney is excessive.
  239         10. Whether the departure fee sought by the claimant’s
  240  attorney shocks the conscience as excessive.
  241         (g) A judge of compensation claims shall determine the
  242  hourly rate used to compute the departure fee awarded under this
  243  subsection, in $1 increments, based upon consideration of the
  244  factors in paragraph (f). A judge of compensation claims may
  245  exercise independent judgment in setting the hourly rate and is
  246  not limited to an hourly rate pled by a party. However, the
  247  hourly rate may not exceed $150 per hour.
  248         (h) The departure fee must be the attorney hours determined
  249  under paragraph (d) multiplied by the hourly rate determined
  250  under paragraph (g). The claimant is responsible for attorney
  251  fees pursuant to his or her retainer agreement which exceed the
  252  departure fee.
  253         (i) The employer or carrier may contest the departure fee
  254  awarded under this subsection within 20 calendar days after the
  255  entry of the departure fee award if the number of attorney hours
  256  determined by the presiding judge of compensation claims under
  257  paragraph (d) exceeds 125 percent of the number of hours the
  258  employer’s or carrier’s attorney attests were devoted to the
  259  defense of the benefits secured. Upon the filing of a request by
  260  the employer or carrier, the departure fee award must be vacated
  261  and reviewed de novo upon the existing record by a judge of
  262  compensation claims in a different district as assigned by the
  263  Deputy Chief Judge of Compensation Claims. The reviewing judge
  264  of compensation claims must issue an order determining the
  265  departure fee, making all determinations and findings required
  266  under this subsection. The judge of compensation claims must
  267  issue the order within 30 calendar days after receiving the
  268  assignment. This paragraph does not apply to cases settled under
  269  s. 440.20(11) or if a stipulation has been filed resolving the
  270  claimant’s attorney fees.
  271         (6) A judge of compensation claims may not enter an order
  272  approving the contents of a retainer agreement that permits
  273  placing any portion of the employee’s compensation into an
  274  escrow account until benefits have been secured.
  275         (7) If an attorney attorney’s fee is owed under paragraph
  276  (3)(a), a the judge of compensation claims may approve an
  277  alternative attorney attorney’s fee not to exceed $1,500 only
  278  once per accident, based on a maximum hourly rate of $150 per
  279  hour, if the judge of compensation claims expressly finds that
  280  the attorney attorney’s fee amount provided for in subsection
  281  (1), based on benefits secured, results in an effective hourly
  282  rate of less than $150 per hour fails to fairly