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Backlog of Fee Petitions Drives Up Payments to Workers' Attorneys by 26%

  • State: Florida
  • Topic: Top
  • -  1400 views
  • - Popular with: Legal
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Florida claimants’ attorney fees jumped 26% in the 11 months since the state Supreme Court rul…

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Mark Zientz Apr 13, 2017 a 8:04 am PDT

Here's another way to look at a 26% increase in Claimant attorney fees. Under the mandatory fee schedule fees paid by carriers (claimants pay the fees out of their settlements and cariers pay when they lose or give up in litigation) was 10% of the benefits won. So a 26% increase in carrier paid fees means that claimants attorneys have obtained fees of about 13% of the benefits obtained. That is no reason to pass legislation that will, again, make a claimant's attempt to get legal representation more difficult if not impossible.
On another note, I really think the comment by William Large about lawyers litigating "ticky-tacky" issues like the average weekly wage is idiotic and requires an understanding of how important the AWW is. I summarize below the hisotry of the calculation of the average weekly wage in Florida from 1968 to date. Employees have been denied comepnsation for valuable consideration given to them as part of the employers pay system or contract. I fight for every penny because over many years those pennies add up:
The Florida legislature has enacted numerous amendments to the calculation of the AWW since the Constitution of 1968 was approved by the voters. In 1968 the AWW included all monies paid to the employee by the employer or others (tips) plus the ‘fair market value’ of all similar advantage. That meant that if the employer provided fringe benefits the fair market value was calculated and added to the payroll wages. The list of items included in the AWW is quite lengthy. It includes the fair market value of: A company furnished vehicle that could be used for non- employment travel including the insurance, maintenance and gasoline costs; uniforms furnished to the employee, meals provided, free parking where appropriate, discounts on merchandise produced or sold by the employer, the value of free travel for airline personnel, the value of free tuition for the employee or his or her children for university employees, In one case, the value of two exotic birds given to the employee as a gift along with food for them (Imperial Bird Co. v. Beyer). In order to reduce premiums the legislature passed multiple amendments intended to bring down the AWW, reduce the compensation rate and benefit employers. There was no quid pro quo when benefits were reduced in this fashion. The amendments were to §440.02, the definition of wages, which section was renumbered a number of times from sub-section (12) in 1968 to sub-section (24) in 1990. The definition of wages remained the same from 1968 to 1987. In 1968 it was:

“the money rate at which the service rendered is recompenensed under the contract of hire in force at the time of the injury, including the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer, only when such gratuities are received with the knowledge of the employer. In employment in which an employee receives consideration other than cash as a portion of his compensation, the value of such compensation shall be subject to the determination of the deputy commissioner (now JCC)”.

What was then sub-section (12) became sub-section (21) in the 1987 amendments (Ch. 87-330 Laws of 1987). The amended definition of wages then read:
“Means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, together with the reasonable value of board, rent housing, lodging; employer contributions for uniforms or cleaning allowances; employer contributions for life, health, accident, or disability insurance for the employee or dependents, excluding social security benefits; contributions to pension plans to the extent that the employees’ rights have vested; any other consideration received from the employer that is considered income under the internal revenue code in effect on January 1, 1987, and gratuities received in the course of employment from others than the employer, only when such gratuities are received with the knowledge of the employer. In employment in which the employee receives consideration other than cash as a portion of this compensation, the reasonable value of such compensation shall be the actual cost to the employer”.The 1988 regular session again amended §440.02 (21) ch. 88-203
Laws of 1988. As amended the section the definition of wages now read:
“Means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury, together with the reasonable value of board, meals, rent housing, lodging; parking employer contributions for uniforms or cleaning allowances; employer contributions for legal, life, health, accident, or disability insurance for the employee or dependents, excluding social security benefits; contributions to pension plans to the extent that the employees’ rights have vested; any other consideration received from the employer that is considered income under the internal revenue code in effect on January 1, 1987, and gratuities received in the course of employment from others than the employer, only when such gratuities are received with the knowledge of the employer. In employment in which the employee receives consideration other than cash as a portion of this compensation, the reasonable value of such compensation shall be the actual cost to the employer”.The 1989 regular session made no changes to the definition of wages but the same cannot be said about the major overhaul that took place in the 1990 regular session. The new and renumbered §440.02 (24) passed as ch. 90-201 Laws of Florida 1990, now read:
“Means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury and includes only the wages earned on the job where he is injured and does not include wages from outside or concurrent employment except in case of a volunteer firefighter, together with the reasonable value of housing furnished to the employee by the employer which is the permanent year round residence of the employee, and gratuities to the extent reported to the employer in writing as taxable income received in the course of the employment from others than the employer, and employer contributions for health insurance for the employee of the employee’s dependents. However, housing being furnished to migrant workers shall be included in wages unless provided after the time of injury. In employment in which an employee receives consideration for housing the reasonable value of suchhousing compensation shall be the actual cost to the employer board or based upon the Fair Market Rent Survey promulgated pursuant to section 8 of the Housing and Urban Development Act of 1974, whichever is less. However, if employer contributions for housing or health insurance are continued after the time of the injury, the contributions are not “wages” for the purpose of calculating an employee’s average weekly wage”.

Ch. 91-2 Laws of 1991 again left the definition of wages alone as did the product of the legislative sessions until Special Session “C” in 1993, ch. 93-415 §2 Laws of 1993. This enactment amended §440.02 (24) to read:
“Means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury and includes only the wages earned and reported for federal income tax purposes on the job where he is injured and any other concurrent employment where he is also subject to workers’ compensation coverage and benefits together with the reasonable value of housing furnished to the employee by the employer which is the permanent year round residence of the employee, and gratuities to the extent reported to the employer in writing as taxable income received in the course of the employment from others than the employer, and employer contributions for health insurance for the employee of the employee’s dependents. However, housing being furnished to migrant workers shall be included in wages unless provided after the time of injury. In employment in which an employee receives consideration for housing the reasonable value of such housing compensation shall be the actual cost to the employer board or based upon the Fair Market Rent Survey promulgated pursuant to section 8 of the Housing and Urban Development Act of 1974, whichever is less. However, if employer contributions for housing or health insurance are continued after the time of the injury, the contributions are not “wages” for the purpose of calculating an employee’s average weekly wage”.The 1998 act only renumbered the definition of wages to §440.02(27). (Some citations not yet added)




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