Litigation was the top priority of employer/carriers and a cornerstone of the 2003 reforms. At issue was the payment of hourly fees, which had its genesis in a 1990 court ruling that found that the state's statutory reimbursement schedule did not adequately compensate attorneys. Critics argued that the court's decision represented a case of judicial activism that overstepped the statutory intent of the law, which contained no reference to hourly fees. As a result, critics argued that the ruling created an environment that led to attorneys filing multiple petitions for benefits and prolonging cases to earn higher fees–a condition made worse by what some considered a low threshold for injured workers to qualify for permanent total disability benefits.

During the 2003 reform debates, employer/carries pushed to all but eliminate hourly fees on the basis it would reduce overall costs and speed the delivery of benefits to workers. For their part, claimant attorneys argued the changes were too restrictive and would penalize injured workers, especially in cases where the dollar amount of the benefits would preclude attorneys from taking their cases. Also, the attorneys said, by not imposing a similar statutory fee cap on defense attorneys, it created an unfair playing field where employer/carriers could force injured workers to settle for smaller settlements. Despite the opposing arguments, lawmakers agreed to a series of changes designed to curb fees.

Under the 2003 law, lawmakers retained the current statutory fee schedule, which calls for claimant attorneys to receive 20 percent of the first $5,000 in benefits, 15 percent of the following $5,000, and 10 percent of the remaining benefits awarded in the 10-year period following the date of accident. For any subsequent benefits, the attorney would collect five percent.

Restrictions and Prohibitions

Two other important changes were also approved by lawmakers. First, claimant attorneys' fees were restricted to $150 per hour up to a maximum of $1,500 for one medical claim per accident. As a means to further ensure that the fee provisions were followed, lawmakers also placed several prohibitions to prevent judges of compensation claims (JCCs) from approving fees higher than what was spelled out in the law. As noted in Chapter 440.34(1), Florida Statutes, “The judge of compensation claims shall not approve a compensation order, a joint stipulation for lump-sum settlement, a stipulation or agreement between a claimant and his or her attorney, or any other agreement related to benefits under this chapter that provides for an attorney's fee in excess of the amount permitted by this section.”

The law also required the OJCC issue an annual report detailing the judges' performance, which is the best measure of the current level of legal activity in the system. The study follows the state's fiscal year, which runs from July 1 to June 1. The OJCC report compares data from fiscal year 2004 to 2005 through fiscal year 2005 and 2006. Due to the changes in the 2003 reforms, including the elimination of claimant attorney's hourly fees, the expectations were that there would be fewer litigated cases at an overall reduction to the system.

According to the report, many of those expectations appear to have come due. The number of new cases has been reduced along with the number of petitions. There have been little changes in the numbers of mediations and the resolution trends associated with the alternative dispute system. The most interesting fact is that the number of reported defense attorney and judges-approved claimant fees have slightly increased. The report notes, however, that the figure includes fees for open cases from past years. In fact, Florida has open cases dating back to 1952. Also, employer/carriers are not required by law to report attorney fees. What follows is the major summary report's findings.

Number of litigated cases:

Petitions filed: 90,948 – (15% decrease from prior year).

New cases filed: 36,909 – (4.52% decrease from last year).

Amount of litigation resolved:

Petitions closed: 79,768 – (15% increase from last year).

Number of mediation conferences held:

25,522 – (3.36% decrease from last year).

Disposition of medication conferences:

Some resolution: 70.37% – (decrease of 71.02%)

Settle case: 25.26% – (increase from 24.21%)

Number of continuances granted for mediations:

Continuances: 4,756 – (increase from 3,333 last year)

Number of continuances granted for final hearings:

Trial continuances: 5,011 – (decrease from 5,094)

Outcome of litigated cases:

Resolved before trial: 11,565 – (decrease from 12,504)

Amount of attorneys' fees paid:

JCC approved claimant fees: $261,058,816 – (17.39% increase from last year)

Reported defense fees: $299, 412, 570 – (13.39% increase from last year).