The National Council on Compensation Insurance disbanded its Classification and Rates Committee in 1991 for all of its clients nationwide because of antitrust concerns, not to evade Florida’s Sunshine Law, its attorney told a three-judge panel Wednesday.

The 1st District Court of Appeal heard oral arguments in the appeal by NCCI and the Florida Office of Insurance Regulation in a case brought by Miami claimants’ attorney Jim Fee.

Leon County Circuit Court Judge Karen Gievers on Nov. 23 found in favor of Fee’s lawsuit, which alleged the rating company and state regulators had colluded in deciding a rate increase. Gievers stayed the 14.5% rate increase, but it was allowed to go forward Dec. 1 after NCCI and FLOIR appealed.

The case hinges on whether NCCI is a private company that is exempt from Florida’s open records and meetings laws or whether its single actuary who decided last year’s rate increase constitutes a “committee of a recognized rating organization with responsibility for workers’ compensation and employer’s liability insurance rates” — the standard under state statutes for adherence to the Sunshine Law.

Arguing for NCCI, attorney James A. McKee, a partner at Foley & Lardner in Tallahassee, said actuary Jay Rosen acted alone in first determining that rates should increase 19.6%, mostly in response to a pair of state Supreme Court rulings that benefited injured workers and their lawyers.

Until 1991, the Classification and Rates Committee deliberated rate increases, McKee said.

“Any assertion that this committee was disbanded to avoid the Sunshine Law is absolutely incorrect,” he said. “There is absolutely no basis to apply the Sunshine Law to Mr. Rosen, a single actuary. He alone made that decision. There is no other basis to apply the Sunshine Law to NCCI, a private corporation.”

FLOIR attorney Shaw Still argued that “there is more than a fair inference that it was disbanded for antitrust reasons and not to avoid the Sunshine Law.”

But Shaw said that even if there was a violation of the law, it was “cured” by a three-and-a-half-hour public hearing on Aug. 16. The hearing was properly noticed, and all information in FLOIR’s possession was posted online and available to the public two weeks before the hearing, he said.

Fee, an owner of the Druckman & Fee law firm, is basing his case on Section 627.091 of the Florida Statutes. It states that whenever a committee of a recognized rating organization with responsibility for workers’ compensation and employer’s liability insurance meets to discuss rates, it must do so in public under the state’s Sunshine Law, Section 286.011 of the Florida Statutes.

Section 627.291 requires a rating organization to respond to written requests for information within a “reasonable time” and to provide “all pertinent information as to such rate.”

Fee’s lawsuit claims NCCI withheld much of its documentation.

Fee’s attorney, James Shubin of Shubin & Bass in Miami, argued that NCCI is governed by one of the state’s bedrock principles “to take this process out of the proverbial shadows.

“If you contract with a state agency, you have to concede that certain records are open to public inspection,” Shubin said. “The goal was to have the soufflé come out of the oven whether there were four cooks or six cooks or eight cooks. Jay Rosen was doing exactly what the Classification and Rates Committee was doing.”

Fee sued NCCI and FLOIR as the owner of a law firm compelled to purchase workers’ compensation coverage for his employees.

“I have great confidence in our legal system,” Fee said Wednesday after the hearing. “I thought that the case was well presented by my attorneys and we’re just waiting to see what the decision will be.”

The parties might not have to wait long: The court is hearing the case on an expedited basis.

“I have seen the court rule the same day as an oral argument, and I have seen a delay of months after an oral argument," said David Langham, deputy chief judge of the Florida Office of Judges of Compensation Claims. "I sense that they perceive a need for expeditious determination on this. They shortened time periods and have pushed the parties. I would be surprised if there is not decision by next Friday, but not at all surprised if it were sooner. But these are guesses.”

Last fall, FlOIR ordered NCCI to pare down its 19.6% rate increase to 14.5% in the wake of two Supreme Court rulings.

In Marvin Castellanos v. Next Door Co., the court ruled 5-2 that a strict cap on claimants’ attorney fees was unconstitutional. In Bradley Westphal vs. City of St. Petersburg, the court raised the cap on temporary disability benefits from two years to five.

NCCI attributed the bulk of its recommended rate increase to those cases, and a small portion to an update of the state’s medical fee reimbursement manual.

“NCCI and OIR perform their rate-making functions with the utmost transparency and professionalism, including a public hearing, and we believe Mr. Fee’s case is without merit,” said Ron Jackson, American Insurance Association vice president for state affairs in the Southeast region.

Jackson called on policymakers to act and address the “adverse” and “virtually uncapped attorneys’ fees” resulting from Castellanos.

Mark Touby, president of Florida Workers’ Advocates and the attorney for Castellanos, issued an emailed statement calling on the Legislature to enact meaningful workers’ compensation reforms that will put employees back to work, allow fair access to the courts and “reintroduce transparency to Florida’s unique rate-making process.

“We appreciate the appellate judges’ careful consideration of the compelling arguments presented today,” said Touby, a partner with Touby, Chait & Sicking in Miami. “Judge Gievers delivered a thoughtful, well-reasoned and compelling determination that flatly rejected the process used to approve an unwarranted increase in workers’ compensation rates in Florida, and we are confident after a full and impartial hearing that the appeals court will agree with Judge Gievers’ conclusion.”