Florida Workers Compensation and Attorney Fees April 28, 2016 April 28, 2016 Florida Supreme Court Ruling. Introduction... 1

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1 Consulting Actuaries Implications of the April 28, 2016 Florida Supreme Court Ruling on the Unconstitutionality of Florida s Workers Compensation Attorney Fee Schedule Jennifer K. Price, FCAS, MAAA Scott J. Lefkowitz, FCAS, MAAA, FCA May 2, 2016

2 CONTENTS Introduction... 1 Background and SB 50A... 1 Court Challenges and the April 28, 2016 Decision... 5 For additional information on the contents of this article, contact Oliver Wyman Actuarial Consulting, Inc. Jennifer K. Price, FCAS, MAAA Scott J. Lefkowitz, FCAS, MAAA, FCA Oliver Wyman Actuarial Consulting, Inc. Oliver Wyman Actuarial Consulting, Inc Lenox Road Suite South Service Road Suite 310 Atlanta, GA Melville, NY Jennifer Price is a Partner of Oliver Wyman and is a leader in the Atlanta, GA office. She is a Fellow of the Casualty Actuarial Society and a Member of the American Academy of Actuaries. With over 20 years of experience in the insurance and risk management industry, Ms. Price has provided consulting services to a wide variety of clients on all aspects of property/casualty risk exposure. Ms. Price specializes in the examination of complex risk exposures, including professional liability and workers compensation. Ms. Price has studied and presented on the workers compensation system in Florida. Scott J. Lefkowitz is a Partner of Oliver Wyman and leads the Melville, NY office. He is a Fellow of the Casualty Actuarial Society, a Member of the American Academy of Actuaries, and a Fellow of the Conference of Consulting Actuaries. With over 29 years of experience in the insurance and risk management industry, Mr. Lefkowitz has also provided consulting services to a wide variety of clients on all aspects of property/casualty risk exposure. Mr. Lefkowitz is an expert as respects workers compensation exposures and has conducted research and studies on latent disease and other complex workers compensation exposures. Mr. Lefkowitz has published numerous papers on workers compensation issues in different jurisdictions/states. OLIVER WYMAN ACTUARIAL CONSULTING CONTENTS

3 Introduction On April 28, 2016, the Florida Supreme Court issued its opinion in the case of Marvin Castellanos v. Next Door Company finding that the mandatory fee schedule in Section of the Florida workers compensation statute is unconstitutional as a violation of due process under both the Florida and United States Constitutions thereby eliminating the caps on claimant attorney fees. This decision has significant cost implications for the Florida workers compensation system. Background and SB 50A In order to understand the potential cost implications of this decision, it is worthwhile to first revisit SB 50A and its impact on Florida workers compensation costs. Prior to enactment of Senate Bill 50A in October 2003, workers compensation costs in Florida had been amongst the highest in the United States. The top ten costliest states in the 2000 biennial workers compensation cost ranking study conducted by the Oregon Department of Business Services 1 are displayed below: Average WC Premium Cost Oregon Department of Business and Consumer Services 2000 Biennial Study Average Cost RANK STATE per $100 payroll 1 Florida Louisiana California Rhode Island Nevada New York Texas Hawaii Ohio DC The Oregon Department of Business and Consumer Services publishes a biennial study that ranks each state according to total WC costs. The studies are published in even numbered years. The Oregon studies consider the total net cost of WC insurance, and therefore includes, in addition to benefit costs and claim related expenses, insurer related expenses, profit, taxes, assessments, investment income offset, as well as competitive adjustments and discounts provided by insurers to certain employers. Additionally, the Oregon Studies are based on a distribution of payroll specific to Oregon. Cost rankings by Oliver Wyman that measure the cost of benefits and claim related expenses only and that are based on a more generic Countrywide payroll distribution generate results that are very similar to the results of the Oregon studies. OLIVER WYMAN ACTUARIAL CONSULTING Page 1

4 The results of studies conducted in years prior and in 2002 (Florida ranked number 3 in the 2002 study) show very similar results, with Florida consistently within the top three most costly states. SB 50A became effective October 1, 2003 and represented a turning point as respects workers compensation costs. SB 50A was a comprehensive bill that, once signed into law, affected almost all key aspects of the workers compensation system in Florida including, but not limited to, the following: Limitation on permanent total disability (PTD) benefits and change in eligibility criteria Caps on claimant attorney fees Medicare-based fee schedules Additional Alternative Dispute Resolution (ADRO processes Restrictions on Independent Medical Exams (IMEs) Shortly after the passage of SB 50A, the National Council on Compensation Insurance (NCCI) estimated the combined cost impact to be a 14% decrease in Florida workers compensation costs. However, the actual reduction in costs following the passage of SB 50A was much more dramatic. According to NCCI the average claim cost per $100 payroll in Florida decreased by over 60% between 2003 and The impact of all elements of SB 50A is also illustrated by the following graph of the change in workers compensation premium level in Florida when compared to Countrywide data: 2 From the NCCI State Advisory Forum 2015, average voluntary pure loss costs using Florida s payroll distribution. OLIVER WYMAN ACTUARIAL CONSULTING Page 2

5 The starting point is 2003 and premium level is equal to 1 for both Florida and Countrywide data. In 2004, Countrywide premium decreased by approximately 5%, while Florida premium decreased by approximately 14%. The larger decrease in Florida was the result of the initial estimated of the impact of SB 50A. However, as claims data under the new law became available in Florida for the purpose of ratemaking, it became apparent the expected cost reduction due to SB 50A was underestimated, and Florida premium continued to decline at greater rates than Countrywide 3 data. The top ten costliest states in the 2014 biennial study conducted by the Oregon Department of Business Services are displayed below: Average WC Premium Cost Oregon Department of Business and Consumer Services 2014 Biennial Study Average Cost RANK STATE per $100 payroll 1 California Connecticut New Jersey New York Alaska Oklahoma Illinois Vermont Delaware Louisiana 2.23 Florida is noticeably absent from the top ten states and, in fact, ranked 28 in the study, with workers compensation costs very close to the Countrywide average. Florida had been in the neighborhood of this rank since the mid to late 2000s. NCCI predicted a 70% reduction in the number of permanent total disability (PTD) claims following the passage of SB50A. The chart below compares the frequency of 3 The decrease in Countrywide premium level from 2003 through 2007 was primarily due to the continuation of a general decline in workers compensation claim frequency that began in the early 1990s across all states, and which then began to level off in the late 2000 s. The same claim frequency decline was observed in Florida. However, the larger premium decreases in Florida in the 2003 to 2007 time frame were due to the increasing availability and maturity of Florida claims data generated under SB 50A for the purpose of ratemaking. Once actual data became available, it became apparent that the actual cost reduction associated with SB 50A was greater than initially estimated. OLIVER WYMAN ACTUARIAL CONSULTING Page 3

6 PTD claims per 100,000 employees 4 in Florida and on a Countrywide basis and shows that the reduction in Florida was in fact significant. Though PTD claims are rare and comprise less than one half of one percent of all claims involving lost work time, they are extraordinarily expensive with an average cost usually between $1.5 and $2.0 million, and therefore account for a measurable portion (generally between 5% to 10% depending on jurisdiction) of system costs. In addition to the impact on PTD claims, there was a notable reduction in the average duration of temporary total disability 5 (TTD) benefits in Florida following SB 50A. Florida s average duration of TTD benefits went from being similar to countrywide 4 5 This chart is based on data published by the National Council on Compensation Insurance. Note that the basis of this data, claims per 100,000 employees, does not consider differences between employment hazards in Florida versus Countrywide data. For example, if all employees in Florida were roofers, and all employees in the rest of the country were clerical workers, clearly the PTD rate would be greater in Florida. However, the graph is an excellent illustration of how SB 50A changed the PTD incidence in Florida relative to the rest of the country. With workers compensation claims that involve lost work time, there is generally a period of total disability preceding the point in time when a final assessment of disability is made. During this period of total disability, the claim is classified as a temporary total disability (TTD) claim. In cases where there is no permanent impairment, the claimant will return to work with no additional income benefits, and the claim is closed as a TTD case. In cases where there is permanent, but partial, disability, the claim is reclassified as PPD once the final assessment of permanent impairment is made. In circumstances where the claimant is permanently and totally disabled, the claim is classified as a permanent total disability (PTD) claim. The time spent on TTD prior to final disability assessment is costly because claimants are receiving full income replacement benefits, as well as medical treatment, during this period of time. OLIVER WYMAN ACTUARIAL CONSULTING Page 4

7 averages prior to 2003 to the second lowest in the country by The reduction to TTD duration is generally attributed to the restrictions on attorney fees implemented by SB 50A. Note that attorney fees had been a long term issue in Florida because of the impact of attorney involvement on frictional system costs. In the simplest sense, proponents of the fee schedule believe that relatively generous attorney reimbursements created motivation for attorney involvement in many situations where the resulting degree of attorney involvement and associated costs were simply not warranted by the specific circumstances of the claim in question. Court Challenges and the April 28, 2016 Decision SB 50A rendered the Florida attorney fee schedule mandatory, the essence of which is as follows: The fee for benefits secured is limited to 20 percent of the first $5,000 of benefits secured, and 15 percent of the next $5,000 of benefits secured, 10 percent of the remaining amount of benefits secured to be provided during the first 10 years after the claim is filed, and 5 percent of the benefits secured after 10 years. The attorney fee provisions in SB 50A have been the source of conflict since SB 50A became law. In October 2008, the Florida Supreme Court issued a ruling in Emma Murray v. Mariner Health and Ace USA that invalidated the attorney fee provisions in SB 50A. The basis of the decision was a conflict in language dealing with workers compensation attorney fees in Florida statutes created by SB 50A. Language in one part of the statute called for the fee schedule established by SB 50A. Language in another part of the statute called for a reasonable fee. Faced with the question of what element of the statute should prevail if the fee schedule results in an unreasonable fee, the Court ruled that the element of the statute calling for a reasonable fee should prevail, essentially reversing the fee schedule language of SB 50A. Very shortly thereafter the Florida legislature acted and removed the term reasonable from the statute, effectively reinstating the attorney fee provisions in SB 50A via HB 903. On April 28, 2016, the Florida Supreme Court issued a ruling in Marvin Castellanos v. Next Door Company finding the attorney fee provisions of SB 50A to be unconstitutional. The original issue in this case centered on an award of $164 in claimant attorney fees for 107 hours of legal work. The basis of the Supreme Court ruling, rather than conflicting language, centers on the issue of due process rights under the Florida State Constitution and the United States Constitution. The Court ruled that due process was violated because the law prevents challenges to the reasonableness of workers compensation attorney fees. The Court also expressed concern that without the likelihood of an adequate attorney fee award, there is little incentive for attorneys to assist claimants and therefore increases the likelihood that insurance carriers will deny benefits or act in other ways that are unfair to the claimant. 6 From the NCCI Research Brief Workers Compensation Temporary Total Disability Indemnity Benefit Duration 2013 Update OLIVER WYMAN ACTUARIAL CONSULTING Page 5

8 The potential impact of this ruling is material. Unless there is legislative redress, workers compensation system costs will likely increase significantly. The National Council on Compensation Insurance is estimating the cost impact now. Immediately subsequent to the Emma Murray decision, the National Council on Compensation Insurance estimated the impact of the Emma Murray decision to be a cost increase of 18.6%. It would be reasonable to expect that the Castellanos decision will generate a similar impact, given that both decisions impact the crucial attorney fee schedule component of SB 50A. It is also possible that the Castellanos decision will generate an even greater impact, given the additional data now available supporting the magnitude of cost reductions following the passage of SB 50A. For additional information on the contents of this article, contact Oliver Wyman Actuarial Consulting, Inc. Jennifer K. Price, FCAS, MAAA Oliver Wyman Actuarial Consulting, Inc Lenox Road Suite 2400 Atlanta, GA Scott J. Lefkowitz, FCAS, MAAA, FCA Oliver Wyman Actuarial Consulting, Inc. 48 South Service Road Suite 310 Melville, NY OLIVER WYMAN ACTUARIAL CONSULTING Page 6

9 Consulting Actuaries The information contained herein is based on sources believed to be reliable, but Oliver Wyman does not guarantee the accuracy of its sources. It is general risk management and insurance information only. Oliver Wyman makes no representations or warranties, expressed or implied, concerning the financial condition, solvency, or application of policy wordings of insurers or reinsurers. The information contained in this publication provides only a general overview of subjects covered, is not advice regarding any individual situation, and should not be relied upon as such. Statements concerning tax, and/or legal matters are general observations based solely on our experience as risk consultants and should not be relied upon as tax and/or legal advice, which we are not authorized to provide. Readers of this document should consult their own qualified insurance, risk management, tax, and/or legal advisors regarding any specific issue discussed in this document. This document or any portion of the information it contains may not be copied or reproduced in any form without the permission of Oliver Wyman, except that clients of any of the companies of Marsh and McLennan Companies need not obtain such permission when using this report for their internal purposes, as long as this report is reproduced in its entirely, and this page is included with all copies and reproductions. Oliver Wyman Actuarial Consulting, Inc Lenox Road Suite 2400 Atlanta, GA (404) South Service Road Suite 310 Melville, NY

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