Florida Governor Signs Bill Limiting Counsel Fees

The Governor of Florida has signed yet another law limiting counsel fees in workers' compensation actions. The original law was declared unconstitutional by the Florida Supreme Court.

The new law provides for capped limits as follows:

"(1)  A fee, gratuity, or other consideration may not be

15 paid for a claimant in connection with any proceedings arising

16 under this chapter, unless approved as reasonable by the judge

17 of compensation claims or court having jurisdiction over such

18 proceedings. Any attorney's fee approved by a judge of

19 compensation claims for benefits secured on behalf of a claimant

20 must equal to 20 percent of the first $5,000 of the amount of

21 the benefits secured, 15 percent of the next $5,000 of the

22 amount of the benefits secured, 10 percent of the remaining

23 amount of the benefits secured to be provided during the first

24 10 years after the date the claim is filed, and 5 percent of the

25 benefits secured after 10 years. The judge of compensation

26 claims shall not approve a compensation order, a joint

27 stipulation for lump-sum settlement, a stipulation or agreement

28 between a claimant and his or her attorney, or any other

29 agreement related to benefits under this chapter which that

30 provides for an attorney's fee in excess of the amount permitted

31 by this section. The judge of compensation claims is not

32 required to approve any retainer agreement between the claimant

33 and his or her attorney. The retainer agreement as to fees and

34 costs may not be for compensation in excess of the amount

35 allowed under this subsection or subsection (7) section."

"(3)  If any party should prevail in any proceedings before

63 a judge of compensation claims or court, there shall be taxed

64 against the nonprevailing party the reasonable costs of such

65 proceedings, not to include attorney's fees."

"  (7)  If an attorney's fee is owed under paragraph (3)(a),

107 the judge of compensation claims may approve an alternative

108 attorney's fee not to exceed $1,500 only once per accident,

109 based on a maximum hourly rate of $150 per hour, if the judge of

110 compensation claims expressly finds that the attorney's fee

111 amount provided for in subsection (1), based on benefits

112 secured, fails to fairly compensate the attorney for disputed

113 medical-only claims as provided in paragraph (3)(a) and the

114 circumstances of the particular case warrant such action."

Proposed North Carolina Legislation Caps Benefits for Seniors

Proposed legislation in North Carolina seeks to cap workers compensation benefits for those over the age of 65 years old. HR1022. The legislation specifically states: " Temporary total disability compensation shall continue for a period lasting until the longer of (i) when the injured employee is eligible by age for full benefits under the Social Security Act, 42 U.S.C. § 401, et seq., or (ii) a period of 300 weeks from the date of injury."

If passed, the legislation would be more limiting than "reverse offset" language enacted pre-1980 by several states and would follow a recently enacted legislation in Utah to limit benefits for the aged which was declared unconstitutional.

Opposition Mounts to a National Study Commission

Special interest groups are mounting opposition to the formation of a national study commission on workers' compensation. The PIA (The National Association of Professional Insurance Agents).

“This is a typical Washington D.C. approach: appoint a commission, give it a big budget and create a big new bureaucracy,” said PIA National Government Affairs Committee Chairman Johnny Lee. “The fact is, none of this is necessary. Workers’ compensation programs are regulated by the states, not the federal government. The federal government should not seek to interfere in a state-based and state-regulated system. This is a waste of time and taxpayers dollars.”

Chrysler Workers' Compensation Fund Challeged by Illinois Attorney General

Illinois Attorney General Lisa Madigan filed an objection to the company's pending sale to Fiat. She indicated that the the Illinois Workers’ Compensation Commission (IWCC) and the Illinois Self-Insurers Advisory Board (ISIAB) were at risk with if the pending sale goes through.

“In filing this motion, we are working to protect the safety net for Chrysler employees and ensure that sufficient funds are available to pay for any potential workers’ compensation claims,” Madigan said.

Massive Coalition Seeks National Workers' Compensation Health Reform

Workers' Compensation reform is being urged by a large national coalition. The group has launched a new website "www.protectingworkers.org and is seeking a direct and immediate change in the delivery of health benefits for injured workers.

"GOAL 6 – REFORM WORKERS’ COMPENSATION PROGRAMS. 
Workers who are injured or made ill because of conditions at work face barriers to health
care access and receive inadequate benefits under separate state workers’ compensation
healthcare systems. Prevention and treatment of work-related health conditions should be
an integral component of comprehensive healthcare system reform."

IARC To Review Human Carcinogens-metals, arsenic, dusts & fibers (asbestos)

The International Agency for Research on Cancer (IARC) has met to reassessthe carcinogenicity of metals, arsenic, dusts, and fibres previously classified as “carcinogenic to humans” (Group 1) and to identify additional tumour sites and mechanisms of carcinogenesis. 

It reported that 125 million workers continue to be exposed to asbestos in the workplace. Lancet reports:

"Globally, an estimated 125 million people are still exposed to asbestos in the workplace.2 Although asbestos has been banned or restricted in most of the industrialised world, its use is increasing in parts of Asia, South America, and the former Soviet Union.3Naturally occurring sources of asbestos, its use in brake linings, and deterioration of asbestos-containing products all contribute to environmental exposure worldwide. Exposure may also come from fibres carried home on the clothing of asbestos workers.4

"Epidemiological evidence has increasingly shown an association of all forms of asbestos (chrysotile, crocidolite, amosite, tremolite, actinolite, and anthophyllite) with an increased risk of lung cancer and mesothelioma. Although the potency differences with respect to lung cancer or mesothelioma for fibres of various types and dimensions are debated, the fundamental conclusion is that all forms of asbestos are “carcinogenic to humans” (Group 1). Mineral substances (eg, talc or vermiculite) that contain asbestos should also be regarded as “carcinogenic to humans”.

"Sufficient evidence is now available to show that asbestos also causes cancer of the larynx and of the ovary. A meta-analysis of cohort studies reported a relative risk of cancer of the larynx of 1·4 (95% CI 1·2—1·6) for “any” exposure to asbestos. With different exposure metrics, the relative risk for “high” exposure versus “none” was at least 2·0 (1·6—2·5).5 Cohort studies of women who were heavily exposed to asbestos in the workplace consistently report increased risks of ovarian cancer, as in a study of women in the UK who manufactured gas masks during World War II.6 Studies suggest that asbestos can accumulate in the ovaries of women who are exposed to it.7

"The Working Group classified the evidence for an association between asbestos and colorectal cancer as “limited”, although members were evenly divided as to whetherx the evidence was strong enough to warrant classification as “sufficient”. Further, there is “limited” evidence in humans for cancers of the pharynx and of the stomach.

The Lancet Oncology, Volume 10, Issue 5, Pages 453 - 454, May 2009

A Brokered Marriage: Medicare and Workers’ Compensation

The problems of old age are now worrying are beginning to influence decision makers on what to do with two major delivery system in the United States. Both the Medicare system and the workers’ compensation medical delivery system are now ailing. The fiscal remedy maybe their marriage.

The Medicare Hospital Fund will be insolvent by 2017. The Trustees of the program have indicated that the program has been paying out more than it has collected in taxes and interest over the last two years. This estimated date of insolvency is two years ahead of schedule and the shortfall will necessitate a deposit of $13.4 trillion.

Robert Pear reported in the NY Times this week, “’The financial outlook for the hospital insurance trust fund is significantly less favorable than projected in last year's annual report,’ the trustees said, adding, ‘Actual payroll tax income in 2008 and projected future amounts are significantly lower than previously projected, due to lower levels of average wages and fewer covered workers.’”

The workers’ compensation medical delivery system has been plagued with a set of its own difficulties including: cost shifting to Medicare and reimbursement issues, rising costs that now exceed the indemnity aspect of the program, lack of uniformity and delay in delivery of medical benefits, staggering litigation and administrative costs and uncertainty as to future premiums because of a failing economy.

The voice of change is now being heard in Washington as health care takes the stage front and center on the issues of affordability and choice. David Axelrod has indicated that the Administration is committed to "fix what's broken in the system and preserve what's good."

When the Social Security system was initial enacted, the country faced similar economic troubles. Employee medical coverage was not a consideration of the original program. The geriatric nature of both the Social Security system and the multiple workers’ compensation programs are now evidencing the problems of old age. A marriage of convenience maybe just what the future holds.