A Lawyer Discipline Story

One purpose of this blog is to memorialize things that people may know, but perhaps do not contemplate daily. I was shocked to catch a news story recently, involving an attorney who I remember from my time on the bench in Pensacola. This story is troubling and stands potentially as a reminder to us all. Diligence and responsiveness is a critical element in the world of litigation. And honesty should just go without saying.

This attorney had enviable education opportunities at familiar and reputable educational institutions. There were opportunities to practice with some exceptional attorneys and law firms. Some obvious skills and abilities showed promise for an outstanding future when this lawyer was admitted to The Florida Bar in 2003. 

Following three complaints, and an investigation, the Bar and this attorney entered into a consent judgment (a plea to avoid a trial). The facts included three clients. The first wanted to sue a home builder. A lawsuit was filed and served but was later dismissed by the judge for failure to prosecute. The lawyer elected not to tell the client that the suit was dismissed. The lawyer thereafter told the client that his issues were proceeding and being "worked on daily." In response to later status inquiries, the attorney said that "computer issues" were impeding communication and updates. 

Knowing that the case had been dismissed, the attorney nonetheless told the client that work was being performed to serve the defendants. The client first learned of the dismissal through the Bar grievance process. The conclusion was the attorney "failed to competently and diligently represent" the client," and "failed to adequately communicate with" the client. 

In 2010, another client hired this attorney in a child support matter. This client also had trouble communicating with the attorney. The attorney was tardy in communicating regarding discovery responses. A court date was scheduled, which the client asked to have moved because he was deploying to Afghanistan. The attorney advised the client of the "next court date," but "failed to mention that the 'court date' was the final hearing in the case. Due to the deployment, the attorney's staff advised the client that the case "may continue until your return." When no continuance could be agreed upon, however, the attorney did not update the client and advise the hearing would proceed. 

The attorney then, "without the knowledge or consent of " the client accepted a "Stipulated Order" by which the client agreed to pay child support and attorney's fees to the former spouse. The client accused the attorney of misleading him, and of denying there had been any resolution. The client presented emails from the attorney that stated there had been no settlement, and that the case was "pushed back until I return." The grievance referee concluded that the attorney "misrepresented the status of the case," acted without the "client's knowledge or consent, created a financial hardship for" the client, and generally failed to communicate appropriately with the client. 

The attorney later testified that he had communicated with the client before entering the agreement "including the increase in child support and payment of his former wife's attorney's fees." The attorney testified that thus there was "permission and approval to execute the Stipulated Order." The client "emphatically denied these statements." The referee concluded that the attorney "made false statements to The Florida Bar at the grievance committee hearing." And, that the attorney "engaged in misrepresentation, fraud and deceit." 

In a third case, the attorney was hired regarding a business dispute. That client's goals did not proceed as hoped, and the client was later sued by a landlord intertwined in the dispute. Eventually, "a settlement was reached in the suit with the landlord," but at significant cost to the client. The litigation of the original issues was then to proceed, but repeated attorney promises of filing a complaint failed to materialize. The referee noted various unfulfilled promises to file a lawsuit, over a period of months. 

In 2015, The Florida Supreme Court accepted and adopted the "the uncontested report of the referee." The attorney was "suspended from the practice of law for ninety days" and ordered to pay the costs incurred by the Bar in prosecuting the case ($4,467.65). After the suspension, the attorney was "placed on probation for two years," and ordered to attend an ethics education program. 

Reflect on that. The ability to practice law is interrupted (as is the income from working), a significant cash penalty is imposed, and further education is ordered. This was not an insignificant penalty.  Some might argue that when a lawyer tells lies a disbarment is called for. However, this outcome was a significant penalty, but it afforded the attorney something that many people never get, a second chance. It is likely that everyone wishes for a second chance at some point. 

In 2016, more issues arose. The attorney then sought a "Disciplinary Revocation," which is effectively being disbarred.  Noting the prior complaints, suspension, and probation regarding "issues of client neglect and misrepresentation to clients about the status of their cases," the attorney acknowledged additional, more recent, allegations. These included failure "to notify judges, clients, and opposing counsel of his suspension; and acceptance of at least one new client during his suspension," and "failure to cease the practice of law during" suspension. In effect, the second chance offered an opportunity and the attorney failed either to appreciate it or comprehend it. 

In this "revocation," the attorney agreed to "pay restitution" of almost $5,000, and to reimburse The Florida Bar for the costs of the disciplinary case. In July 2016, The Florida Supreme Court entered an order granting voluntary disbarment and ordering the attorney to pay $3,821.85 in costs to The Florida Bar. And that, one might think, would be the end of the story. But, none of that disciplinary investigation or action received much publicity. 

What did generate some publicity was the news story in November 2017, about 18 months after the effective disbarment. The November story notes that in August 2017 the attorney pled "no contest" in a criminal case. That case alleged that the attorney continued to practice law after being voluntarily disbarred, even accepting a $5,000 retainer from a client. Before the attorney was sentenced, another person accused the attorney of charging "several Gulf Power Co. bills to" a disabled client and removing funds from that client's checking account.

By the November 20, 2017, criminal sentencing, the former attorney had repaid the money regarding these latest actions. He was reportedly sentenced to "30 days in jail and three years of probation." And that generated some news coverage. 

The legal profession is stressful and challenging in a variety of other ways. There are demands on time and finances. Few people hire a lawyer with the admonition "this is really not that important, just take your time." No, people come to lawyers when they are in need of help, now. And, the vast majority of them will be markedly uninformed or misinformed (television is our bane) as to how the legal system actually works. 

This story illustrates some critical points. The most important is not to take other people's money. Perhaps tied for first is do not lie. Those two are simple, direct, and primary. But, as important is that people need diligent representation. Their goals and needs have to be addressed. That does not mean they must "win"; every case has winners and losers, and it is not possible for everyone to "win." Winning is a point, but the main point is diligence; moving the client's case forward toward a conclusion. 

Finally, it is critical to remember clients enter the legal world with questions, concerns, and too little foundational understanding. Lawyers have to communicate with clients, persistently, consistently, and repeatedly. The client needs to know what is happening, what is not happening, and why. The communication has to be honest and forthcoming, it has to be informative but not overly technical. Because memory is what it is, and because schedules are busy, many believe that communication should be in writing. 

The legal profession has been diminished by the actions of this attorney. The actions and inactions described are a matter now of public record. That is the point. I have omitted identification in this post, but these facts are all easily checked. The point of this post is not to embarrass a person. The point is to remind the rest of us that we stand for a noble profession, represent people in need, and have obligations to both the people and profession. 

Mediation Cost in Florida is Value

In Florida workers’ compensation, most PFBs must be mediated before they may proceed to a final hearing. To provide greater detail regarding the mediation efforts of the OJCC, a Settlement and Mediation Statistics Report was first published in August 2010. The OJCC has published that report annually since. They are available at www.fljcc.org under the “Publications” and then “Reports” tabs.

The volume of State mediations held each year steadily decreased since 2002-03. Four exceptions have now been noted: 2008-09 (+3.95%), 2013-14 (+2.13%), 2015-16 (+1.83), and 2016-17 (+2.39). The volume of 2016-17 mediations remains significantly lower than in 2002-03. However, the overall rate of decrease in mediations does not match the rate of decrease in PFB filings over that period. This suggests that as PFB volume fell, OJCC mediators were able to act upon a greater percentage of the remaining volume, but the overall volume of mediations held nonetheless has decreased by almost half over the last fifteen years. 

In 2016-17, approximately sixteen thousand (16,079) mediations were held by state mediators, at an average cost of approximately $169.39, a minimal decrease from the 2015-16 figure of $173.45. The cost savings in recent years are due to the legislative action reducing the number of state mediators. The cost will adjust upwards unless the volume of mediations increases or the mediator positions again decrease. 

Many private mediators charge hourly rates well above these figures, commonly two hundred fifty dollars ($250.00) per hour or more. Anecdotal evidence also supports that some private mediators charge minimum time commitment (such as a two-hour minimum) for all mediations convened. Therefore services comparable to those delivered by the OJCC mediators, from private mediators, would likely cost an average of approximately five hundred dollars ($500.00) or more. 

Thus, the cost-efficiency of State mediation is obvious, averaging about sixty-eight percent (67.7%) of the cost of one hour of private mediation. Notably, this cost is included in the overall OJCC budget. The overall cost per claim for the OJCC, including the mediation process, is far below the Circuit Court filing fees for other civil matters. Furthermore, if the volume of mediation increases, the cost of each mediation decreases, because the aggregate cost of the state mediation program remains constant regardless of volume, within reason. 

There are multiple issues that influence state mediation efficiency. The OJCC is compelled to mediate cases within 130 days of petition filing. However, there is also a statutory prohibition on noticing mediations until 40 days after the petition is filed. In giving notice of mediation, the OJCC must be conscious of the constraints of due process, that is, reasonable notice for mediation. 

It has become practice to strive to provide parties with 30 days’ notice of mediation. While some shorter notice periods could fulfill constitutional requirements, attorneys, adjusters, and workers have schedules, and providing less notice could be calamitous on the ability to plan, and effectively engage in productive mediation. Therefore, there is a 70-day period (40 days in statute, plus 30 days’ notice) excised from the 130-day mediation requirement. Effectively, the mediation process must occur within a 60-day period or “window." 

History supports that a great many mediation appointments are canceled by the parties. This may be because the claimed issues are resolved in some compromise, the benefits are outright provided as claimed, or the claims are dismissed. The resolution is likely positive. But, when such a resolution occurs within 30 days of the scheduled mediation, it may prove difficult for a state mediator to schedule some other case for that resulting vacancy. The shorter the notice of such cancellation, the more difficult it is to use that time effectively. Thus, the statistics reflect the capacity to conduct more mediations, and history supports many more have been conducted in prior years. However, the late cancellations is affecting efficiency. 

As a direct consequence of efforts to comply with the 130-day statutory parameter, all of the State mediators have averaged below 130 days between PFB filing and the first mediation in each of the last nine fiscal years (2008-09 through 2016-17). This represents 100% average statutory compliance by the OJCC state mediators in nine consecutive years. 

The statutory requirement to send cases to private mediation may have assisted with facilitating more timely mediation in recent years. However, the action of sending a case to private mediation imposes a significant cost to the particular E/C ordered to private mediation. 

It is important that the current filing volume situation is nearing system capacity. The OJCC needs to increase that capacity, or there will be an increase in the volume of cases being referred to private mediation at the expense of the employer/carrier. Those referrals will be precipitated despite the actual capacity to conduct more mediations and the frustration of efficiency caused by late cancellations. 

California on My Mind

It is intriguing to experience the processes and procedures used by various states' workers' compensation systems. I recently had the opportunity to discuss the California system and conclude that there are many distinctions between Florida and California. One that is striking is the degree of maternalism described in California, with conferences and discussions through which judges provide advice and guidance for attorneys, shepherding cases to determination. The plethora of those "conferences" is likely culture or tradition. 

But, a statutory distinction of note is the venue of workers' compensation disputes. In Florida, the venue generally lies in the county in which the accident or injury occurs. This is in Section 440.25(4)(d) "in the county where the injury occurred." Despite the simplicity of this language, there is room in Florida for confusion. Periodically, petitions are filed stating a particular county, but which are not accurate. Mistakes are made on petitions. And, there are times when the parties to the case later agree to have the venue transferred. But, the county of accident is our Florida default. 

Something more than 20 years ago, California transitioned to a more permissive venue procedure. A California attorney recently described it to me as an "open venue" suggesting that the venue may essentially be wherever one wants it to be. I took a look at California Title 8, §10409 to explore this venue process. The California code indeed provides discretion in selecting a venue. The code says the person filing a "case opening document shall designate venue." However, the venue is not precisely "open" as in unfettered. The selection is to be "based upon":

(1) the place of the employee or dependent's residence at the time of filing . . . ; (2) the place where the injury allegedly occurred . . .;or (3) the place where the employee's attorney maintains his or her principal place of business . . ..

This is not exactly "open." The attorney confided that "principle place" affords more discretion than I might think though. But, if one had an unfettered choice, possibly every California claim would be filed in the Yosemite National Park District (as if anyone would need an excuse to visit that natural wonder?). 

So the injured worker could find herself or himself litigating entitlement to workers' compensation benefits at some distance from home. That can happen under the more constrained Florida definition also. Keep in mind a great many people travel in their work (truck drivers leap to mind as an example, but many people travel and could be injured far from home). One might live in Key West and yet suffer an injury while on a trip in Pensacola (an 830+ mile, 12-hour drive). 

Coincidentally, the latest installment of the Hot Seat last Friday (click the link to view the program) focused on ethical challenges in workers' compensation. One of the topics that arose was the potential for conflict between the best interest of an attorney and the best interest of the injured worker or employer. These two are important; the employee and the employer are the purpose of workers' compensation. It is for and because of them that workers' compensation exists. Workers' compensation does not exist "for" the rest of us. Contrarily, judges, lawyers, doctors, rehabilitation experts, adjusters, case managers and more exist only because workers compensation exists. 

I stress this for our agency staff and judges periodically. I am persistently surprised that some of us sometimes forget our mission. The Florida Office of Judges of Compensation Claims (FLOJCC) exists because there are injured workers, employers, insurance companies, lawyers and more. And, to put finer point on it, because there are disagreements among those. Our mantra should always be clear, the public is NEVER an interruption of our day at the FLOJCC; you are the PURPOSE of our day at the FLOJCC. More on that in a coming post. 

Our discussion on the Hot Seat included a discussion of attorney interaction with clients. I am saddened to hear of attorneys presenting at our offices for mediation, not knowing their clients. We periodically have an attorney question our security officers: "Which one is my client?" Certainly, an attorney may represent a great many people, and may not be able to recall them all on sight. But in the world of the ubiquitous digital camera, one might take a "selfie" during the client intake interview and alleviate the challenge of not recognizing the client months or even years later at a scheduled event?

I was told that in California, however, there was a perception that injured workers were never meeting their attorneys. Well, that discussion led me to another conversation, and later to explore California Labor Code § 4906, which was recently (2016) amended. Some in California feel that this section is unique in the United States. This law purportedly requires a face-to-face meeting between attorney and client. That surprised me somewhat. California has mandated that injured workers and their attorneys must meet. Whether there was a real pattern of "never meeting" or whether that was merely a perception, it appears the California Legislature at least thought the potential was real. 

Under section 4906(g) fees for representation of injured workers are limited to "a reasonable amount," subject to judicial approval. And, the attorney must provide the client a "disclosure form" regarding attorney fees. As an aside, the "reasonable" determination is seemingly less complex than that legislated by the Florida Supreme Court in Lee Engineering v. Fellows, 209 So.2d 454 (1968), and later re-legislated in Castellanos v. Next Door. 192 So.3d 431 (2016). In California, the relevant considerations for reasonableness are:

the responsibility assumed by the attorney, the care exercised in representing the applicant, the time involved, and the results obtained.

As mentioned above, the injured worker has to be provided with a disclosure regarding fees and the attorney/client relationship. It has to be:

signed by the employee and the attorney and filed with the appeals board and sent to the employer, or insurer or third-party administrator, if either is known, by the attorney within 15 days of the employee’s and attorney’s execution thereof. 

Thus, everyone involved in the case will be included in the communication and should be on the same page. Presumably, because there is a chance for litigation to occur a great many miles from where an injured worker lives, secondary to the "open" venue statute, the disclosure must state "the exact location of the district office of the appeals board at which the employee’s case will be filed." The employee has to be informed of both the location of filing and that "he or she may be required to attend conferences or hearings at this location at his or her own expense.” 

That requirement suggests that perhaps an injured worker or two may at some point have expressed confusion or regret when confronted with a lengthy commute for trial. The drive from Cole, California (north) to San Diego (south) is 782 miles and 11 hours according to Google; not as far as the Key West to Pensacola trip, but a long drive indeed. California is a very long state. While it might be a scenic drive, trips of such duration are expensive. And, such a trip might be uncomfortable for someone with an injury or impairment. 

Were there attorneys that did not clearly express the venue selection, and thus led to complaints that led to this disclosure requirement? Or, were disclosures not heeded by workers who were then more focused on immediate issues like medical care and replacement income following an accident? Does human nature just focus us on immediate concerns over something like a hearing that is months away?

But the disclosure requirement I found most curious is the face-to-face. The employee "may not" sign the required disclosure until she or he: 

has met with or personally spoken with an attorney licensed by the State Bar of California who is regularly employed by the firm by which the employee will be represented, and has been advised of his or her rights . . . . 

That seems to suggest a phone call might suffice ("spoken with"), but I am told that is not the perception of others. Some perceive a face-to-face requirement. There are anecdotal stories of workers never meeting their attorney, we hear some in Florida. In one case years ago, a worker challenging a settlement fee at a hearing vociferously argued when the attorney announced his appearance at the hearing. The worker loudly interrupted with "That's not my attorney (pointing at counsel), THAT IS! (pointing to the back of the hearing room at counsel's paralegal)." 

The California law is intriguing. Should the venue be defined, or "open?" If "open" how open? (maybe all winter hearings would be in the lovely, sunny Keys?) Should attorneys be free to select venue to their convenience? Is the injured worker's acquiescence to a venue 800 miles from home in the best interest of expedient proceedings, an effective and impartial adjudication system, the worker or the employer? Whose interest is served? And, what does it tell us when a legislature must require disclosure of venue and mandate lawyers to personally meet their clients? 

I think, this morning, that if I were representing workers today, I would personally meet every client. That is professional, and appropriate, even if not statutorily mandated. And, I think we would end our consult with a selfie. That would help me remember them at later events and would dispel any misremembering that we met and talked about. But, it says something that state law in California mandates a meeting. I will be reflecting on that in the coming days.

Single Payer, Outliers, and Conclusions (11)

People are talking about workers' compensation, perhaps more today than ever. This is the tenth in an 11-post series (links to the first nine are at the end of this post), that attempts to overview various perspectives heard from system observers and participants. The point is that discussion is good, and if this series generates debate and interaction, all the better.

Single-payer 

In a single-payer system, all persons’ healthcare is covered, regardless of the cause of needing care. In such a system, work-relatedness would be irrelevant. The pathway to single-payer would require some method of generating sufficient revenue to cover costs. Revenue could be generated through mandatory insurance premiums in a voluntary marketplace or through taxation in a more socialized structure. In any revenue model, the single-payer process could have serious implications for workers’ compensation. 

There are perceived advantages and disadvantages of involvement in workers’ compensation systems. Service providers such as physicians and therapists may perceive economic benefit or detriment in participation and may structure individual practices and participations thereon. Participating providers may be inclined to tailor opinions or conclusions in a manner to maximize economic advantage, resulting in the “cost-shifting” discussed herein. 

In the 1990s, several states authorized employers to alter the manner in which workers’ compensation medical care was delivered, labeling the alternative “24-hour coverage. In some ways, this alternative was similar to the “opt-out” or “carve-out." The main purpose of this alternative was to eliminate coverage and treatment distinctions between work and non-work accidents and injuries. An employer was empowered to provide 24-hour medical care and disability coverage in lieu of the more limited work coverage. The plans enjoyed little acceptance among employers. Perceived detriments to acceptance included distinctions in medical coverage detail and inconsistency of provision of health coverage. 

Medical coverage distinctions include the ability of employers to provide care in capitated or otherwise controlled delivery systems such as health maintenance organizations (HMO), preferred provider organizations (PPO), and inconsistency of regulatory definition and operation between health insurance and workers’ compensation constructs. These distinctions were perceived as challenging for an employer within any jurisdiction but were perceived as more problematic for large employers with employee populations in multiple jurisdictions. Without the adoption of the “24-hour option” many such employers operated health insurance programs across various states with a single program.

With the twenty-first century advent of “mandatory” health insurance for all Americans, there have been questions regarding whether 24-hour coverage viability is enhanced. That discussion is of course cautioned by the potential for repeal of mandatory insurance. However, the concept of distinction-less provision of medical care remains contemporary. In 2014 Vermont unsuccessfully attempted to implement a mandatory single-payer system; Colorado unsuccessfully attempted to mandate such a system in a 2016 referendum. Despite these failures, some economists believe that “single payer” is an inevitability for American health care. 

The distinctions regarding work causation would be at least sidelined and perhaps eliminated in a single-payer system. Regulatory structures concerning the delivery of care, reporting, billing, and more could be implicated in such a transition. Financial concerns could also be important. In the event single-payer were funded through individual taxation, as proposed in Colorado, individual workers would become responsible (through payroll deduction taxation) for funding care for work injuries, contrary to current structures, at least in form. Such a program would seemingly cost-shift medical expenses from industry to labor. Some argue that the costs of workers’ compensation are already borne by labor, at least in part, as those costs similarly with other expenses limit the funds available or deployable as wages; this belief holds that without the expense of workers’ compensation, wages would increase. 

Outliers

There is concern regarding disparity in cost and effort in the administration, processing, and adjudication of workers’ compensation claims in various systems. Summit attendees perceive that a small percentage of claims consume a disproportionate share of resources, both financial and otherwise. The attention paid to these “outlier” cases is seen as a distraction for system managers, regulators, and service providers. 

Summit attendees see this disparity as affecting the experience of others, whose claims perhaps do not receive the attention they would otherwise. However, some contend that if the resource demand of these “outliers” diminished, resources would not necessarily be reassigned, but instead, the total volume of personnel and resources would be proportionately decreased. This, they argue, would result in either lower insurance rates or higher carrier profits, but would be unlikely to enhance the experience of any injured workers. 

Conclusion

Without committed resources, a diverse, dynamic, and exceptional volunteer group identified and prioritized these 29 critical points that challenge American workers’ compensation. Recognizing that time and change are inexorable, there is a general consensus that challenges will consistently present in various forms. It is believed that these points bear consideration by systems, legislators, regulators, and vendors. However, it would be better still if these points, and the systems themselves, received the consideration of the critical system participants, all employers and employees. It is for these constituencies that the systems exist, and it is for them that Summit attendees contend these systems must both persevere and improve through continuous critical self-examination and analysis. 

Other posts in this series:

Conversations

(2) Benefit adequacy, Regulatory complexity, Delays in treatment even if compensable (November 2017).

(3) System failures, Incentives are different in WC and group health, and Systems are persistently adversarial (November 2017).

(4) Staffing and training of the workers’ compensation professions, Permanent partial compensation, Opt-out movement  (November 2017).

(5) Injured worker's beliefs - not informed or uninformed assumption, Treatment protocols, a benefit or a burden, Perceptions and education (November 2017).

(6) Vocational rehabilitation, Ability versus disability, Methodology of claims handling (November 2017).

(7) Medical ignorance, The critical point in a claim, People who are acting inappropriately (November 2017).

(8) Misclassification, Unrealistic expectation of full recovery and youth, Federalization (November 2017).

(9) A new national commission? Employee participation in the conversation, Occupational disease (November 2017).

(10) Lawyers in the system, Competition between states, Roles, and delineation

(11) Single-payer, Outliers, Conclusions

Florida Cost of Litigation Resolved 2017

The Florida Office of Judges of Compensation Claims (OJCC) budget, divided by the number of petitions for benefits (PFB) closed, reflects that the overall cost per PFB closed fluctuated in recent years due in large part to the significant fluctuation in PFB closure rates.

These figures demonstrate relevance when considered in comparison to filing fees in Florida’s Circuit Courts. For “small claims” filings, the Circuit filing fees may be as low as fifty-five dollars ($55.00), but for civil claims with a value over $2,500.00, the filing fee is three hundred dollars ($300.00); for larger claims, the Circuit filing fee may be as high as four hundred dollars ($400.00). 

The OJCC is demonstrably more financially efficient, with a per-petition cost well below the Circuit Court filing fees. Additionally, in the majority of instances, the OJCC cost is inclusive of mediation services, which generally are an additional cost to the parties in other civil litigation. Over the last fifteen fiscal years, the average cost per petition closed was $232.00, just above half the comparable Circuit Court filing fee.

The fluctuations of “per PFB” costs is also attributable to the minimal growth in the OJCC annual budget through 2008, followed by five consecutive budget reductions between 2009 and 2013. The OJCC budget has seen minimal growth, and periodic reductions, and has not maintained pace overall with inflation. The OJCC today is operating on a budget similar to 2005-06. If the 2002-03 budget was adjusted for inflation alone, the 2017 budget of the OJCC would have been $21,981,397 instead of $17,430,852, a difference of $4,550,545, or just over 26%.

The OJCC today is spending less per full-time employee (“FTE”), adjusted for inflation, than in 1992-93. During the significant increase in case filings between 1994 and 2003 the OJCC budget effectively decreased, when adjusted for inflation. Florida’s population has also grown markedly in the last twenty years. However, the number of judges has remained virtually static over the same period. These facts illustrate that the OJCC has been very effective at wisely managing the resources provided.

Petition for Benefit (PFB) closure rates have stabilized and closely follow the current filing rates. There is every reason to believe that trend will continue. A minimal volume of overdue PFB inventory may remain unaddressed in this litigation system, which appears from available data, to be substantially in equilibrium. The resulting cost per PFB closed is therefore likely to increase if PFB filing volumes decrease, and to decrease if volumes increase.

Another illustration of the cost-effectiveness of the OJCC is the volume of child support arrearages collected through the judges’ efforts. The Judges of Compensation Claims are statutorily required to ensure that the rights of child support recipients are considered when support payers settle their workers’ compensation cases. Each judge devotes considerable time and effort to the investigation and verification of child support arrearages when cases are settled. 

The significant amounts of child support collected through these efforts for the last fifteen (15) fiscal years total over $160 million ($162,740,517). When the judges were given the responsibility for recovering these arrearages, no staff or budget was added to the OJCC to accomplish this task. The volume of child support arrearages collected is particularly interesting when considered in light of the overall OJCC budget discussed above. 

Over the last fifteen (15) fiscal years, the OJCC has collected an average of 63% of its overall budget in past-due child support to the benefit and advantage of support recipients throughout Florida. In 2012-13, the OJCC undertook the duties associated with reporting arrearage information on behalf of the Department of Revenue (DOR). In 2013-14 the OJCC integrated the process of reporting Circuit Clerks’ arrearage information. This combination eliminated redundancy and waste across the process for all Florida workers’ compensation litigants. Litigants in Florida’s workers’ compensation adjudication system now get all of their required child support arrearage information from the OJCC instead of DOR and the Circuit Clerks. 

These tremendous child support services on behalf of support recipients have been delivered without any additional staff or funding for the OJCC operations. Because of the sensitive nature of this data, the burden of investigating these support inquiries has fallen primarily on the OJCC mediators and Commission Clerks. The comparison of child support recovery (red) and the OJCC overall budget (blue) is illustrated in this graph (in millions).

The decrease in child support collected in 2008-09 was seemingly significant. However, that appearance results primarily from the exceptional collections in 2007-08. Overall, the support volume has remained somewhat similar. Notably, the volume of settlements that were approved by the Judges of Compensation Claims likewise decreased contemporaneously and has then remained significantly consistent for the last seven fiscal years.

Lawyers, Competition, and Roles (10)

People are talking about workers' compensation, perhaps more today than ever. This is the tenth in an 11-post series (links to the first nine are at the end of this post), that attempts to overview various perspectives heard from system observers and participants. The point is that discussion is good, and if this series generates debate and interaction, all the better.

Lawyers in the systems 

This concern is tied to the perception that systems are persistently adversarial. The involvement of attorneys may purportedly be motivated by a number of factors. Lack of reliable and understandable education regarding system benefits and process, and distinctions from more familiar systems such as health insurance may lead to injured worker dissatisfaction. The complexity of a system, and frustration with comprehension of statutory and regulatory provisions may discourage and confuse injured workers. 

Delays in delivery of medical care, whether treatment or diagnostic testing, may likewise cause consternation, confusion and dissatisfaction. Certainly, learning of complex legal classification issues surrounding compensability, such as employment status may lead a worker to seek advice. The expectations of full recovery and non-attainment of that end may drive injured workers to distrust of or lack of confidence in physicians and care regimen. 

The resulting dissatisfaction with system, provider, or care may drive injured workers to seek change in the form of different providers, different specialties, and different or more invasive care. Worker perceptions about the calculation and adequacy of benefits may encourage them to seek expert assistance. Thus, the very nature of the various systems may inexorably create situations that:

(1) are difficult to understand

(2) do not communicate realistic expectations

(3) produce results inherently, which do not meet preconceptions

(4) encourage workers to engage and rely upon attorneys

In these regards, various voices do not see attorney involvement as inexplicable. 

There are those who perceive an inherent conflict in attorney representation of injured workers. They note that many injured workers lack independent financial resources to compensate attorneys providing expert assistance with navigation of the systems. As such, injured workers are dependent upon proceeds from benefit awards to pay counsel. 

In many instances, the systems constrain and restrict the amount of attorney fees payable. (There are jurisdictions that apply caps to attorney fees. Others restrict the type of benefit obtention upon which fees may be charged. Others constrain fees to a defined percentage of benefits recovered). Critics see a potential conflict in which an attorney may be inclined to pursue additional benefits or treatment in order to enhance the value of a worker’s case, and thus increase the total value for, or from which, fees could be paid. 

Some believe that the proliferation of unsuccessful treatments such as spinal fusions and opioids have been driven by the desire to obtain expensive care in those regards, to the detriment of the worker. They see the detriment both in the delivery of these doubted modalities and the related disability. In regards to the disability, this may be temporary, while such care and treatment is debated and delivered, or may be permanent based upon the eventual “impairment” or “disability” being enhanced by the very care sought. 

A related concern voiced regards settlement of workers’ compensation cases. Some perceive that settlement is a preferred conclusion for attorneys. In the instance of litigation or dispute, an attorney may invest significant time and effort. When that concludes, an administrative provision of benefits could result in that attorney receiving small incremental payments against the ultimate fee amount over a period of months or years. 

Alternatively, reducing the benefit provision to a lump-sum payment provides the injured worker with resources both to manage her/his future care and “disability” or “impairment,” and to pay attorney fees in a similar lump-sum. Some contend that this creates a conflict between the worker and the attorney. 

Some perceive settlement as ill advised in any context. They see injured workers as unlikely to effectively manage the proceeds of a settlement in any event. They also perceive the end result of settlement as a closure of employer liability that places undue and inappropriate burdens on other benefit systems including group health, Medicare, Medicaid, Veterans’ Administration and Social Security. They term such an effect “cost shifting.”

The issue of incentives is thus implicated in the attorney/client relationship. This is not necessarily limited to those representing injured workers. There is a similar perception voiced regarding the defense of workers’ compensation claims. Some perceive that attorneys encourage employers and carriers to resist voluntary provision of benefits because those attorneys are compensated well for the litigation that ensues. These critics believe that the resistance by carriers generally reinforces the adversarial nature of the systems, the assumptions and opinions of injured workers, and the perceptions of regulatory complexity.

Competition between states 

The twentieth century economic development was influenced by state competition for industry, and deployment of economic incentives for business location and relocation. States made direct financial contributions to attract business in various forms, including cash, taxation relief, and infrastructure development. Issues regarding costs of business were newsworthy, with states being lauded or derided upon the standard of being “business friendly.” State’s laws and regulations were characterized and those perceptions or labels were marketed in the efforts to both draw and retain jobs. 

Workers’ compensation is a regulatory system in each state. As perceptions of workers’ compensation systems were discussed, the regulatory burden and comparative cost of workers’ compensation were included. In 1994, Oregon (Current study at http://www.cbs.state.or.us/external/dir/wc_cost/about_the_study.html, last visited January 1, 2017) began studying comparative cost of workers’ compensation, and has published its analysis biannually since. 

The insurance rates resulting from various state constructs exhibit wide differences. In the 2016 report, workers' compensation rates ranged from $0.89 per $100 in payroll in North Dakota, to a high of $3.24 in California. These rates exhibit significant deviation from the median, $1.84 per $100 in payroll. Through its study and publication, Oregon sought to highlight the comparative cost advantage of workers’ compensation in that state, thus encouraging business to locate or relocate there. 

The reporting effectively rated all jurisdictions, and likely encouraged competition for comparative advantage. Such competition would perhaps be primarily legislative, focused on the volume and duration of benefits delivered. The cost of benefits available or delivered would affect the degree of overall risk to a carrier and thus the price of an insurance product to cover the potential losses indemnified. 

Similarly, jurisdictions perceived potential cost advantages in procedural process. States have been perceived as altering process and procedure to decrease delay in claims, adjudication and appellate processes. Though various degrees of reform have been exhibited, some jurisdictions have radically modified processes. Most have abandoned jurisdiction of constitutional trial courts over benefit disputes, adopting administrative processes instead. With administrative transitions, most recently in Oklahoma and Tennessee, only Alabama retains a constitutional court trial process. 

In addition to premium cost advantage, states perceived the potential for decreasing burden and cost through regulation. There is a perception that state regulatory agencies responsible for workers’ compensation, insurance licensing, and adjusting have propagated significant regulatory reforms. Deregulation is perceived as streamlining procedures and administrative burdens, and thus costs. Various states have engaged in purposefully limiting the growth of regulation or actively pursued reduction in regulatory burden. 

Roles and delineation 

There are a multitude of decisions that are critical in the course of a workers’ recovery. Identifying the timing and importance of such decisions is a focus of this report. Contributors to the conversation generally agree that mismatches occur in the systems, in which decisions are inappropriately delegated to individuals who lack the expertise therefore. While these individuals may not be appropriate for particular decisions, each is in fact appropriate for some decisions. The criticism is not lack of expertise or competence in a general sense, but a disconnect between an individual’s training/expertise, and a particular decision. 

In the course of many claims, there will be medical treatment decisions required. Some critics contend that all such decisions should be made by medical experts, and not by claims experts, risk experts or adjudicators. 

Similarly, there are decisions regarding employability. While it is generally accepted that physicians must make decisions regarding physical (what amount can be lifted or carried, how much walking, sitting, or standing is medically acceptable following injury and/or recovery) and perhaps emotional ability, some contend that doctors should not render opinions as to whether a patient is or is not employable, "can" or "cannot" work. 

There seems to be a general consensus that worker’s compensation efficacy would be enhanced if systems included clarity regarding the appropriate roles and responsibilities for various professionals. If there were significant consistency in this regard between various jurisdictional systems, that may provide relief from challenges of regulatory complexity, beliefs, benefits, and competition. There is also some belief that such delineation and consistency could assist with staff retention, decrease adversary conflicts, and decrease attorney involvement through system consistency and simplicity. 

Other posts in this series:

Other posts in this series:

Conversations

(2) Benefit adequacy, Regulatory complexity, Delays in treatment even if compensable

(3) System failures, Incentive is different in WC and group health, Systems are persistently adversarial

(4) Staffing and training of the workers’ compensation professions, Permanent partial compensation, Opt out movement

(5) Injured workers beliefs - not informed or uninformed assumption, Treatment protocols, a benefit or a burden, Perceptions and education

(6) Vocational rehabilitation, Ability versus disability, Methodology of claims handling

(7) Medical ignorance, The critical point in a claim, People who are acting inappropriately

(8) Misclassification, Unrealistic expectation of full recovery and youth, Federalization

(9) A new national commission?, Employee participation in the conversation, Occupational disease

(10) Lawyers in the system, Competition between states, Roles and delineation

(11) Single payer, Outliers, Conclusions

Attorney Fee Distribution Remains Similar

Attorney fees are a consistent interest in the Office of Judges of Compensation Claims Annual Reports. Much of the focus seems to be on the attorney fees approved in a given fiscal year, reported recently in Attorney Fees in Florida Increased. Those figures represent only the amount of fees “approved” during each respective fiscal year. 

During any particular fiscal year, fees might be approved on cases for which the date of accident was also during that particular fiscal year. More likely, the approved fee might be related to a date of accident prior to that fiscal year, perhaps many years prior. In 2016-17, fees were approved regarding 51 distinct accident-date years. That is reasonably consistent with prior years. 

In 2016-17 attorneys’ fees were approved on a 1943 date of accident (74 year-old claim). This case illustrates the manner in which claims can occur and not come within the OJCC jurisdiction for a significant period. That case was opened in 2016 with the filing of a petition for benefits. Certainly, there may have been previous litigation on the case, prior to the OJCC becoming part of DOAH. However, the first record that this agency has regarding this case is the PFB filed more than seventy years after the accident. 

Most fees approved during any particular fiscal year will be associated with accidents that occurred prior to that particular fiscal year. This is because most cases in the OJCC system are not related to accidents in any current fiscal year, and because many cases in the workers’ compensation system remain active, with periodic litigation issues, for many years. Logically, therefore, most litigated cases within the responsibility of the OJCC at a particular time involve dates of accident prior to any current fiscal year. 

The claimant fees approved in fiscal 2016-17, for accident dates in the last 20 years are illustrated in this graph. The volume of fees has increased, as noted above, but the distribution each year is persistently similar.

The vast majority, approximately eighty-eight percent (88%), of the fees approved in 2016-17 related to accident dates in the ten years between January 1, 2007 and December 31, 2016, a notable increase. For comparison, the similar ten year period prior to 2015-16 represented 80%, and the ten years prior to 2014-15 represented 79%. That ten year period, prior to each annual report year, has been reasonably consistent between seventy-seven percent (77%) and eighty percent (80%) for the five years prior to 2016-17.

Generally, the highest single “accident date year” in the annual fee analysis is the year two years prior to any particular Annual Report. This is illustrated again above for 2016-17 in the chart above. 

This illustrates two points. First, the most recent accidents historically account for the vast majority of claimant attorneys’ fees approved, or awarded each fiscal year; second, the most significant accident year for claimant attorneys’ fees is usually two years prior to the reporting year. This is overall consistent with the resolution of cases demonstrated above. Petitions are filed, the state mediation and final hearing processes engage, and as resolution occurs, the fee issues are resolved. Despite the notably short statutory time frames for mediation (130 days) and trial (210 days), it is unlikely most cases will reach the point of fee awards in the first twelve months after accident date.

Of the claimant attorneys’ fees approved in 2005-06, only two percent (2%) were for dates of accidents more than 20 years prior to that fiscal year. That percentage rose and then stabilized for much of recent history. However, the 2016-17 figures represent a return to a slightly lower figure related to the oldest claims. This illustrates that claims on dates of accident older that twenty years have also increased in terms of their proportion to the whole, but still do not represent a significant part of the fee awards and stipulations.

Nationalization, Participation, and Disease (9)

People are talking about workers' compensation, perhaps more today than ever. This is the ninth in an 11-post series (links to the first eight are at the end of this post), that attempts to overview various perspectives heard from system observers and participants. The point is that discussion is good, and if this series generates debate and interaction, all the better.

A new national commission?

Summit participants discussed recent events in the workers’ compensation marketplace, including criticisms published by organizations. In recent years, Propublica and others have been critical of the measure of benefits in various systems. They have also leveled criticism regarding the variety and distinctions between and among the various systems. Critics lament a perception of competition between states, each striving to minimize financial impact of particular jurisdictions’ system in order to accomplish comparative advantage over other states, and thus attracting employment and business. The process of minimizing cost in such a pursuit has been denigrated as a “race to the bottom.” Conclusions and reactions regarding these criticisms have been varied. To some degree, reactions to the criticisms may be influenced by individual perspectives and biases.

The National Commission was created by federal legislation. With a legislative mandate, structure, financial resources, and input, the Commission produced a report regarding recommendations for the future of workers’ compensation. As the marketplace questions whether a new commission would be helpful or effective, a common response is to highlight that none of these 1972 Commission strengths seem likely available today. Though there is some interest in workers’ compensation in the press, there seems little interest on the part of Congress. As such, there is a consensus that federalization of workers’ compensation (see #21) is unlikely even as a point of debate. In the absence of motivation to act on workers’ compensation, Summit participants are doubtful about the need or potential for a twenty-first century commission.

However, there is concern that federal action may nonetheless have impact upon workers’ compensation processes and benefits. A cited example is the impact that federal Medicare legislation has affected on the workers’ compensation marketplaces. In the 1980s, Congress charged Medicare with taking a hand in assuring that system’s financial success and survival. The conclusion was predicated upon belief that Medicare was financing care and benefits that was appropriately the responsibility of others. This was perceived as contributing to solvency issues for this federal program. The results were not immediate, but in the early 2000s Medicare’s interests became a critical analysis in workers’ compensation claims. Workers’ compensation payers were forced to accommodate those Medicare interests in payment and settlement. The effects of these interests have influenced multiple aspects of claims management, litigation and settlement.

There is therefore concern that other federal action could likewise have impact upon workers’ compensation, although it is not necessarily direct federal intervention. An oft-mentioned federal concern is the Social Security Disability program. This social program utilizes federal tax revenue to provide support for individuals that meet various definitions of disability. None of those definitions are dependent upon causation, in the manner in which workers’ compensation entitlement is dependent upon the disability or impairment being caused by work. Therefore, Social Security is a broader program than workers’ compensation. An effect of its broad application is that an injured worker might be simultaneously entitled to both workers’ compensation and Social Security benefits.

This potential led federal legislators to include an offset provision in the Social Security Act. Thereby, Social Security benefits in some instances may be reduced proportionately for the simultaneous receipt of certain workers’ compensation benefits. A compromise in that legislation also afforded an opportunity to state workers’ compensation systems for a similar reduction in state benefits, which became known as a “reverse offset.” Currently, there is some discussion of Social Security reconsidering the “reverse offset” in the interest of decreasing Social Security Disability payments as that system faces significant and chronic funding shortfalls. Certainly, this discussion is part of a larger conversation about the future of Social Security Disability. However, there are those Summit attendees who perceive these discussions, and similar ancillary federal concerns and issues, as having the potential to impact workers’ compensation.

Because of these concerns of potential federal impacts, and because of the other concerns documented in this report, the Summit attendees have reached consensus that there is a need for an ongoing national conversation regarding workers’ compensation. While this is not an endorsement for a specific format such as a commission, it is a call for ongoing intellectual consideration of the strengths and weaknesses of these systems that affect virtually every employer and employee in the country.

Employee participation in the conversation

Summit participants lamented the lack of employee engagement in workers’ compensation issues and processes. A perceived truth is that employees primarily become engaged in the “what” and “how” of workers’ compensation only following an injury. In this context, organized labor is seen as somewhat exceptional, perhaps most notably in the instances of “opt-out” (see #9).

There is a perceived value in greater employee participation in the development and structure of workers’ compensation (as a result) and workplace safety (as a preventative). Some contend that greater appreciation of the systems would be beneficial in systematic efforts toward simplification and restricting overregulation. It is also perceived that greater appreciation of the systems and their inherent shortcomings would be positive in developing and implementing more effective safety initiatives.

Some Summit participants lament the logistic and regulatory impediments on compensability and care. In pursuit of consistency and predictability, systems have resorted to definitions and time limitations. Failure under some constraints may be fatal to receipt of care or indemnity. Employees are generally informed at hire of the existence of a jurisdiction’s system, procedures for reporting accident or illness, and perhaps some constraints like statutes of limitations. However, at the time of hire, the employee is confronted with a multitude of other facts regarding benefits, leave, compensation, retirement, and more. Many, or all, of the other facts are more immediate and primary foci. The operation and effect of workers’ compensation, a resulting process dependent upon the occurrence of an event neither planned nor expected (“it can’t happen to me”), is easily ignored or at best unappreciated.

There is a value seen in engagement of all employees in the structuring and design of workers’ compensation. There is a value in employee appreciation for the legal and regulatory requirements of these systems. And, there is an expressed frustration at perceived employee ambivalence or skepticism (“it cannot happen to me”) in the greater employee population.

Occupational disease

Workers’ compensation was created to provide care and treatment for injuries resulting from accidents at work. At the inception of these programs, such injuries were largely free from the work-relatedness or “compensability” disputes that exist in the modern systems. Accidents in the early age of workers’ compensation, at least perceived in retrospect today, tended to be less subject to dispute as to occurrence or causal relationship. When a trauma occurs, whether through a vehicle accident or being struck by an object or a fall, the event and causation of resulting medical conditions are perhaps more readily apparent and thus accepted with fewer distractions or questions.

As workers’ compensation systems gained acceptance, the scope was broadened, encompassing more than the apparent results of traumatic events. Exposure to other work-place risks such as chemical exposure and repetitive trivial trauma entered the workers’ compensation realm and brought specific challenges for legislative and regulatory constructs. Causation of injury in such instances may be more difficult to perceive, accept, and prove. There are a variety of challenges to such causation analyses.

In exposure claims, an employee may face significant obstacles in establishing the presence, strength, and perniciousness of an offending agent. Exposure may occur over extended time and geographic expanses. Effects, though pernicious, may be difficult to perceive, document, and prove. Therefore, such risks may prove challenging for workers and carriers attempting to effectively underwrite the risks.

Systems have responded to the uncertainties of such exposure situations with specific statutory and regulatory parameters and constructs. The perceived effect is that such claims are more difficult to both prosecute and defend. There is a sentiment that issues and proofs in such claims require expert testimony to a greater degree than other claims and that therefore litigation is disparately expensive. The issues inherent in these claims have therefore likely contributed to regulatory complexity (see #2), system failures (see #4), worker beliefs (see #10), the adversary nature of the systems (see #6), and attorney involvement (see #25).

Other posts in this series:

Conversations

(2) Benefit adequacy, Regulatory complexity, Delays in treatment even if compensable

(3) System failures, Incentive is different in WC and group health, Systems are persistently adversarial

(4) Staffing and training of the workers’ compensation professions, Permanent partial compensation, Opt out movement

(5) Injured workers beliefs - not informed or uninformed assumption, Treatment protocols, a benefit or a burden, Perceptions and education

(6) Vocational rehabilitation, Ability versus disability, Methodology of claims handling

(7) Medical ignorance, The critical point in a claim, People who are acting inappropriately

(8) Misclassification, Unrealistic expectation of full recovery and youth, Federalization

(9) A new national commission?, Employee participation in the conversation, Occupational disease

(10) Lawyers in the system, Competition between states, Roles and delineation

(11) Single payer, Outliers, Conclusions

Attorneys Fees in Florida Increased

The OJCC is required by law to approve all attorney’s fees paid by or on behalf of an injured worker. Section 440.34. Fla. Stat. There is no such specific requirement for the approval of fees paid by employer/carriers for their defense counsel representation. Despite the absence of such specific requirement for defense fee approval, the broad language of section 440.105(3)(b), Fla. Stat. arguably could require OJCC approval of defense attorneys’ fees. However, this statutory authority has historically not been interpreted to require approval of defense attorneys’ fees, although some claimants’ attorneys and groups have questioned this interpretation. 

The OJCC has required insurance carriers to report their respective total annual expenditures for aggregate defense fees. Because these defense fee figures are reported in the aggregate, it is impossible to discern whether cost reimbursement to E/C attorneys has been included in the figures reported by the various carriers. Furthermore, this information regarding defense fees expended during the fiscal year, does not provide any edification regarding the respective dates of accident involved in the cases in which those fees were paid during that fiscal year. 

It is fair to say that the data collection process is imperfect. However, significant effort has been invested in assuring that the reported figures are as accurate as possible. 

During 2016-17, a total of $439,609,031 was expended on combined claimant attorneys’ fees and defense attorneys’ fees (and perhaps defense “costs”) in the Florida worker’s compensation system. This represents a significant increase, about 16%, from the 2015-16 aggregate fee total. Both claimant and defense fees decreased each year from 2010-11 through 2014-15, more significantly on the claimant side. Both figures increased in 2015-16, more significantly on the defense side. However the 2016-17 figures demonstrate a significant increase of 36.07% in claimant fees with a more modest 5% increase in defense fees. 

In the majority of years following 2002-03, claimant attorneys’ fees decreased. In 2015-16, that trend reversed for the first time since 2003-04. That increase was modest, and this office conjectured the 2015-16 figures could demonstrate an anomaly, but in light of Castellanos, more likely indicated of a trend change. The 2016-17 figures demonstrate a sizable increase in claimant attorneys’ fees. The increase of 36% resulted in the highest claimant attorneys’ fee total ($185,676,766) since 2007-08 ($188,701,256). 

The aggregate attorneys’ fees in Florida workers’ compensation are detailed in the chart below. This illustrates the total fees for both claimant and defense, and then provides the percentage that each make of the whole. This delineation was close to 50/50 in the early years of the comparison, see 2002-03, but aggregate claimant fees decreased and employer/carrier fees first increased markedly and then decreased at more moderate pace, a disparity between claimant and defense fees has developed. Since 2009-10, the defense portion exceeded 60% for seven years. In 2015-16 the defense share was 63.95%, the highest since the 2003 statutory reforms. However, the significant 2016-17 increase in claimant attorneys’ fees impacted the percentage distribution that year, despite the fact that defense fees also increased in 2016-17. 

In the 2012 annual report, this Office first noted the inflation effect. Considering inflation over the last decade, this difference is more pronounced. According to the U.S. Inflation Calculator, the 2002-03 aggregate ($427,359,212), in 2017 dollars, adjusted for inflation, would have been $573,262,899. This is $133,653,868 more than the 2016-17 actual aggregate of $439,609,031. Adjusted for inflation in 2017 dollars, aggregate attorneys’ fees in Florida workers’ compensation have decreased over one hundred million dollars in the last fourteen years, despite the marked increase in claimant fees in 2016-17. 

The claimant attorneys’ fee aggregate for 2014-15 marked the 11th consecutive decrease in claimant fees. The 2015-16 figures demonstrated a minimal increase in claimant fees, followed by a marked increase in claimant attorney fees (36.07%) in 2016-17. The increase is attributable to the hourly fee component of this aggregate. Comparing 2015-16 to 2016-17 fees illustrates notable changes. The greatest portion of claimant attorneys’ fees are paid by injured workers when their claims are settled. In 2015-16, settlement fees accounted for sixty-nine percent of the total claimant attorneys’ fees. The data for 2016-17 demonstrates that weight shifting, with settlement fees representing only fifty-three percent of the total claimant attorneys’ fees. Although the total value of settlements in 2016-17 decreased slightly (-.38%) to $788,912,823 from the $791,898,239, the settlement attorney fees increased (4.91%) from $94,428,009 to $99,066,123. Notably, the settlement attorney fees remained reasonably consistent over the last two years. 

The notable increase in claimant attorneys’ fees is attributable mostly to hourly attorneys’ fees for litigation of issues. The aggregate of hourly attorneys’ fees increased in 2016-17 to $75,353,918 from $25,866,295 in 2015-16, an increase of almost fifty million dollars, or one hundred ninety-one percent. In the same period, statutory fees in litigated issues decreased about thirty-one percent from $16,285,382 to $11,256,762. Clearly, there is a trend suggested of increasing claimant attorneys’ fees in the wake of Castellanos and Miles. 

It is noteworthy that defense fees remain the greater portion of the overall aggregate fees paid, at 57.76 percent. It is furthermore notable that the aggregate fees in 2016-17 remained less than the aggregate in 2003-04 and significantly lower than the inflation-adjusted 2003-04 aggregate. Comparing the two elements, claimant and defense, separately, the claimant fees in 2016-17 remained below the corresponding total in 2002-03, while the defense fee element remained significantly higher in 2016-17 than the corresponding total in 2002-03, as illustrated in this chart. 

In 2017, the Florida OJCC produced mid-year calculations of attorney fee data in January. That effort may be repeated in 2018 as questions continue regarding the trends and developments in fee volume.