Is work comp fair? If "fair" is a subjective term, is it even achievable? The gathering storm in Florida is going to help determine those answers.

I was at the Work Comp Claims Professionals (WCCP) 25th annual Claims Management and Leadership Conference in Bonita Springs, Florida, this week. I had the opportunity to attend two sessions: a breakfast meeting and a lunch meeting with attorneys who really understand workers' compensation in Florida, and the implications of groundbreaking state Supreme Court decisions in 2016:

In Marvin Castellanos v. Next Door Co. on April 28, the Florida Supreme Court determined that a limit on claimant attorney fees (20% of the first $5,000 then 15% of the next $5,000) was unconstitutional. Their point was the potential of receiving a low effective hourly rate — in this case, an "absurd" (the term used by the Supreme Court) $1.53/hour — reduced the incentive for attorneys to represent injured workers.

In Bradley Westphal v. City of St. Petersburg on June 9, the Florida Supreme Court determined that limiting temporary total disability (TTD) payments to two years (104 weeks) was unconstitutional. This created a gap for Mr. Westphal, a city firefighter, between permanent disability payments and maximum medical improvement (MMI).

Do you see a recurring theme? Unconstitutional. The new law of Florida.

One response is OMG. Chapter 440 (the Florida statutes defining workers' compensation) is compromised. Another response is SMH. No words to describe this. And yet another response is IDK. This could go either direction. What I learned from listening and asking questions at the conference is there are some logical ways this is going to play out:

The Supremes have been activated. There will be more cases challenging more aspects of work comp in Florida. It's obvious the Supreme Court has a specific perspective on the fairness of existing statutes, so the future isn't hard to see.

Insurance rates will increase. The National Council on Compensation Insurance (NCCI) announced in May (after Castellanos but before Westphal) it had recommended a 17.1% increase in insurance rates to the Florida Office of Insurance Regulation. Chances are that increase will be adjusted — higher — to take into account the effect of Westphal.

Old claims will come back to life. Petitions on existing, non-settled claims that were not filed in the past because the potential claimant attorney fees would be too low will now be filed. Lots of them. It was estimated that claim volume has already increased 11% year-over-year in May (2015 vs. 2016).

Costs to the system will increase. Increased claimant attorney fees (a story related here was of the $33,000 mattress — $1,000 for the mattress and $23,000 in claimant attorney fees).

Increased TTD costs. More new/revived claims. Following the logic of the Supreme Court, these "new" costs should have already been paid but were (I guess you could say) "deferred" by the unconstitutional statutes.

So, the question is will Florida descend into anarchy as everyone tries to make up for lost opportunities? Or will the stakeholders engage to define a "reasonable" (aka constitutional) hourly rate and TTD duration that everyone feels is fair?

Per the Orlando Sentinel, Justice R. Fred Lewis wrote that he thinks the broader workers' compensation system "is fundamentally unconstitutional and in need of legislative — not judicial — reform." So, it sounds as if these are message decisions meant to spark dialogue.

I'm not good at predictions, but this changes the X's and O's. Injured workers are now on offense and payers are on defense. The system will adjust. But there could be some late-afternoon thunderstorms before the sun comes back out in Florida.

Mark Pew is a senior vice president for workers' compensation medical cost containment provider Prium.