Significant Changes to the Workers’ Compensation Statute Are Under Consideration in Tallahassee

Written by: Denise Dawson, Esq.

There are two versions of a comprehensive workers’ compensation bill working their way through the legislature in Tallahassee, FL. The House version of the bill, House Bill 1399, has seen some movement in recent weeks, however, the Senate version, Senate Bill 1636, seems to have lost momentum and a decision on its future was temporarily postponed on April 1. Reinstating workers’ compensation fee caps has been a priority for the Florida Chamber of Commerce, Associated Industries of Florida and the National Federation of Independent Business, among others, for the past three years.

Last week, the House Insurance and Banking Subcommittee signed off on HB 1399, including some of the following proposed changes:

• Mandating a specified notice regarding attorneys’ fees be signed by the claimant.
• Requiring a good faith effort by the claimant and their attorney to resolve disputes prior to filing a petition for benefits.
• Increasing the requirements applicable to petitions for benefits.
• Increasing total combined temporary wage replacement benefits (TTD/TPD) from 104 weeks to 260 weeks.
• Filling a benefit gap that happens when TTD/TPD ends, but the claimant is not at overall maximum medical improvement (MMI) and/or does not have an overall permanent impairment rating.
• Eliminating the charge-based reimbursement of health care facility outpatient medical care in favor of reimbursing them at Medicare rates. If no Medicare fee exists, then current reimbursement standards apply, which are incorporated into statute.

Most notable in HB 1399 is it addresses the TTD issue created by the Westphal v. The City of St. Petersburg decision, as well as providing for potential benefit lapses in those cases where the time has elapsed and the claimant is not yet at MMI. The bill also ties hospital and outpatient clinics to a fee schedule where none currently exists.

The Senate bill takes an entirely different and tougher stance than the House bill. Senate Bill 1636 would allow injured workers to enter into direct payment situations with an attorney, allow an alternative minimum attorney fee cap on medical-only claims of $150 per hour, not to exceed $1,500 in all medical only claims rather than only once per accident. It would also limit appellate fees at $150 per hour if certain conditions are met. Additionally, it would require claimants to sign and attest to a “specified statement” relating to the payment of attorney fees before engaging an attorney or other representative.

HB 1399 does not cap attorneys’ fees or total payments. The bill has a clause that allows a judge to dismiss a claimant’s petition if they or their attorney do not make a good faith effort to resolve the issues before filing a petition.

How Each Bill Would Change the Cap on Benefits

Perhaps one of the most important parts of HB 1399 and SB 1636 is how they address a cap on temporary total disability benefits. HB 1399 would increase the current cap from 104 weeks to 260 weeks, at which point the claimant would receive their disability rating. There is a provision that would allow a claimant to receive an additional 26 weeks of benefits if they do not reach maximum medical improvement (MMI) by the end of the 260-week period. SB 1636 would let claimants receive up to 260 weeks of benefits, but there is no option to receive an additional 26 weeks of benefits.

Benefits for Employers

 If HB 1399 passes, employers could see lower workers’ compensation rates. The bill would tie treatment reimbursement to a percentage of Medicare rates. Rep. Cord Byrd, who introduced the House version of the bill, believes that this could lower workers’ compensation insurance rates by approximately 5%.

Benefits to Employees

The passing of HB 1399 would benefit claimants who receive temporary total disability. The increase from 104 weeks to 260 weeks would give patients more time to reach MMI before losing benefits. Not placing a cap on attorneys’ fees would ensure that that claimants would have viable options for legal counsel. It was pulled by its sponsor but it has been rescheduled to go before the Senate Banking & Insurance Committee. This delay might make it more difficult to get the bill passed during the 2019 legislative session, which ends May 3, 2019.