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Langham: Attorney Fee Distribution Remains Similar

  • State: Florida

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.

Judge David Langham

Judge David Langham

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 (a 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 the Division of Administrative Hearings (DOAH). However, the first record that this agency has regarding this case is the petition for benefits (PFB) filed more than 70 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 88% of the fees approved in 2016-17, related to accident dates in the 10 years between Jan. 1, 2007, and Dec. 31, 2016, a notable increase. For comparison, the similar 10-year period prior to 2015-16 represented 80%, and the 10 years prior to 2014-15 represented 79%. That 10-year period, prior to each annual report year, has been reasonably consistent, between 77% and 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.

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 that most cases will reach the point of fee awards in the first 12 months after accident date.

Of the claimant attorneys’ fees approved in 2005-06, only 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 20 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.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.

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