The 2019-20 Florida Office of Judges of Compensation Claims Annual Report is published. It documents that attorney fees in Florida workers' compensation increased in 2019-20. Overall, fees have trended upward in Florida since 2015-16, with significant increases in some recent years.

Judge David Langham

Claimants' attorney fees have demonstrated notable increases in each of the last four fiscal years (36.07%, 6.99%, 9.19% and 11.05%). Defense fees have also increased, but in smaller increments (4.88%, 0.23%, .98% and 3.80%). In 2019-20 the total claimants' fees were $240,867,847 and defense fees were $266,787,990. 

Overall, claimants' fees have increased about 76.5% ($240,867,847 minus $136,461,404 = $104,406,443; $104,406,443/$136,461,404 = 76%) in the last four years. Defense fees have increased about 10.2% total over the same period ($266,787,990 minus $242,112,498 = $24,675,492; $24,675,402/$242,112,498 = 10%). 

For the first time I know of, the aggregate combination of claimants' and defense fees exceeded a half-billion dollars in 2019-20 ($240,867,847 $266,787,990 = $507,655,837). Because of the increases in claimants' fees, the ratio of claimant-to-defense has also changed markedly. Four years ago, in 2015-16, the claimants' fees made up 36.05% of the fee total, and defense fees were 64%. In 2019-20, the claimants' fees are 47.45% and defense 52.55%. In 2002-03, claimants' and defense fees were very close to equal (49.3% claimants to 50.7% defense). 

Neither claimants' nor defense fees have maintained pace with inflation. In fact, the aggregate in 2019-20 would have been $604,527,477 had the 2002-03 total grown in parallel with the inflation rate. That is almost $100 million ($96,871,640) more than the actual 2019-20 figure, $507,655,837.

Both the number of settlements approved and the overall dollar value of combined settlements also increased in 2019-20. Coincidentally, each increased about 10%, which is generally consistent with the reported increase in claimants' attorney fees (11.05%). 

Not all of the 2019-20 increase in claimants' fees was settlement related, however. Fees for non-hourly/non-settlement fees increased in 2019-20 from $5,977,656 to $7,562,276 (27%). The hourly/non-settlement fees increased slightly from $71,584,645 to $72,220,452 (1%). Settlement fees increased from $139,343,544 to $161,085,119 (16%). Though non-settlement fees increased, the preponderance of the increase was settlement fees. 

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 the current fiscal year, and because many cases in the workers’ compensation system remain active, with periodic litigation issues, for many years. 

Furthermore, it usually requires more than six months (accident dates are attributable to calendar years, Jan. 1 through Dec. 31, but the OJCC data is defined by fiscal years) to file a claim, resolve a benefit entitlement, file for attorney fees and resolve or litigate that issue. Logically, most litigated cases within the responsibility of the OJCC at a particular time involve dates of accident prior to any particular current fiscal year. It is reasonably normal to see a significant portion of the approved fees relate to a date of injury within the last five years. 

In 2019-20, fees were approved regarding 50 distinct accident-date years. This is reasonably consistent with prior years, in which fees were recorded related to a range of 44 to 51 accident-date years. In one recent example cited in the report, fees were approved on a 66-year-old date of accident. This illustrates that workers' compensation injuries may result in circumstances that last a lifetime. Furthermore, absent a settlement or the statute of limitations, issues regarding an accident might arise at any time. 

Despite that potential, the majority of claimants' attorney fees are usually attributable to accident dates within the five calendar years prior to the year in which an OJCC Annual Report is published. In this instance, the accident dates in 2015-2019 accounted for 79% of the claimants' attorney fee total, or $191,432,686.

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.