Keys to Limiting Fees Despite Castellanos Nancy Bolton

Keys to Limiting Fees Despite Castellanos Nancy Bolton Palm Beach County Andrea Tomasek Arthur J. Gallagher Suzanne Leider Mays, Esq. , Law Office of Suzanne Leider Mays, P. A

Nancy Bolton Palm Beach County Board of County Commissioners

Andrea Tomasek Arthur J Gallagher & Co. BUSINESS WITHOUT BARRIERS

Suzanne Leider Mays, PA Law Offices of Suzanne Leider Mays, P. A.

I. Introduction: 1. Challenges to WCA with focus on Attorneys Fees 2. Basis for Challenges 3. Where things presently stand: Legal, Fiscal, Legislative 4. Strategies to mitigate exposure & defend against upward deviations from statutory fee schedule 5. Fee awards since Castellanos

II. Challenges to WCA - Basis for Challenges - Where things stand today: A. Constitutionality of entire WCA - challenged in Padgett. Disposition: with few exceptions, WCA remains exclusive remedy Authority: Elsa Padgett v. State of Florida - (3 rd DCA 6/24/15).

B. Duration of Temporary Indemnity Benefits (104 weeks) challenged in Westphal Disposition: duration of temporary indemnity benefits expanded from 104 weeks to 260 weeks. Authority: Bradley Westphal v. City of St. Petersburg (Fl Supreme Court 6/9/16).

C. Claimant responsible for $10 co-payment following MMI challenged in Stahl. Disposition: $10 co-payment remains in place Authority: Daniel Stahl v. Hialeah Hospital and Sedgwick CMS (Fla. 1 st DCA 3/25/15).

D. Claimant Paid Attorneys Fees - challenged in Miles Disposition: It was unconstitutional to prohibit a claimant (and in this case her union) from paying attorneys fees out of their own funds. Authority: Martha Miles v. City of Edgewater Police Dept. & PGCS (Fla. 1 st DCA 4/20/16).

E. Employer/Carrier paid Attorneys fees under F. S. 440. 34 challenged in Castellanos Authority: Marvin Castellanos v. Next Door Company & Amerisure Insurance (Fla. Supreme Court 4/28/16). Lee Engineering & Construction Company v. Fellows, 209 So. 2 d 454 (Fla. 1968). Emma Murray v. Mariner Health & ACE USA, 994 So. 2 d 1051 (Fla. 1 st DCA 2008).

What we're seeing in claims since Castellanos 24% increase in Petitions for Benefits Increase in depositions across the board Legal Impact of Castellanos decision Fiscal Impact of Castellanos decision Legislative Activity post Castellanos

Recommends 19. 6% rate increase effective October 1, 2016 Florida Office of Insurance Regulation hearing is on August 16, 2016 thefloridachannel. org

$714 Million IMPACT ($3. 645 B x 19. 6%) Does Not include: • Miles v. City of Clearwater – restrictions on claimant paid attorney fees. • Retroactive aspects of Castellanos and Westphal. • Additional costs from behavioral and practice changes from decisions.

III. What triggers Claimant Attorney Fee Entitlement? Prevailing party Untimely Provision of Benefits Attendance at Depositions in absence of PFB and others…

IV. How Does E/C Dispute Entitlement to Attorneys Fees? No benefits secured by efforts of claimant attorney Benefits were timely & voluntarily provided Employee Earnings Report (EER) and others…

EXECLUSIVE REMEDY INDEMNITY MEDICAL ISSUES ATTORNEY FEES

V. Moving Forward - How to Mitigate Attorney Fee Exposure A. Preempt Litigation Team Work Medical Considerations Legal Considerations Carrier Considerations

B. Practical Strategies from Claims Perspective: Cost benefit analysis: small issues could potentially cost the most money Reimbursements: out of pocket, mileage Petitions for Benefits One Time Change AWW Temporary Partial Disability: Attendant Care: Penalties & Interest on untimely paid benefits: Medical care E/C should claim entitlement to costs Response to PFB should exclude contingencies

Litigating Attorneys Fees and Costs Once a fee is claimed: If fee is owed: If there is a past reservation of jurisdiction on Fees: Fee Analysis - how to determine amount of attorneys fees owed:

VI. Proof at Fee Hearings: JCC Considerations: Amount of benefits obtained. . . Was claim heavily litigated. . . number of items on docket. . is statutory fee amount significantly less than customary amounts charged. . OC's other fee awards. . was opposing counsel's time directly related to benefits secured for claimant. . . good faith communications Lee Engineering considerations

1. Time and labor required, the novelty & difficulty of the questions, skill requisite to perform the legal services properly. 2. Likelihood that acceptance of the particular employment would preclude employment by others. 3. The fee customarily charged in the locality for similar legal services. 4. The amount involved in the controversy & the benefits resulting to the claimant. 5. The time limitation imposed by the claimant or the circumstances. 6. The nature & length of professional relationship with claimant. 7. The experience, reputation and ability of the lawyer or lawyers performing the services. 8. The contingency or certainty of a fee

VII. E/C Paid Fee Awards since Castellanos (Trial level only): BROWARD - Range = $300 to $350 FT. MYERS - Range = $275 GAINESVILLE - Range = $225 to $350 JACKSONVILLE - Range = $225 to $300 LAKELAND - Range = $200 to $225 MIAMI-DADE - Range = $200 to $350 ORLANDO - Range = $225 to $420 PORT ST. LUCIE - Range = $250 SARASOTA - Range = $225 ST. PETERSBURG - Range = $555 TAMPA - Range = $300 WEST PALM BEACH - Range = $225

Questions?