TALLAHASSEE — A circuit court ruling that that said a workers' compensation group violated Florida's open records laws by not ensuring committee hearings and supporting documentation on a proposed rate increase were made available to the public is under appeal.
“The primary question in this appeal is whether (National Council on Compensation Insurance) has a committee with a responsibility for workers' compensation rates and whether NCCI had such a committee with regards to the 2016 rates filings at issue," attorney James McKee recently said in his opening statement representing NCCI during an oral argument in the 1st District Court of Appeal. "The records unequivocally demonstrates the answer is no.”
“There is no other basis to apply the provisions of the Sunshine Law to NCCI, a private corporation," McKee said.
The appeal is in response to a Nov. 23 court order in which Circuit Court Judge Karen Gievers invalided a previously approved 14.5 percent increase on Florida workers' compensation rates. The rate increase, which was approved by the Florida Office of Insurance Regulation (OIR) on Oct. 5, was originally set to take effect on Dec. 1.
The original challenge to the 14.5 percent rate increase was brought by James Fee, a Miami-based attorney who represents injured workers in Florida, in Fee v. National Council on Compensation Insurance. The OIR filed its Notice of Appeal with the First District Court of Appeal on Nov. 28.
Gievers claimed in a 73-page ruling that the NCCI violated Florida's Sunshine Law, which is a series of laws designed to guarantee that the public has access to the public records of governmental bodies in Florida.
According to McKee, the NCCI once had a committee called the Classification and Rates Committee that was in charge of dealing with rates. However, McKee claims that the committee was disbanded in 1991, and the work has since been completed by a single actuary, Jay Rosen.
However, John Shubin, of the Shubin & Bass law firm, wrote in an appellate brief that because the NCCI treated Rosen as a committee and gave him authority to make decisions, the organization allowed his actions to be subject to the Sunshine Law, according to Florida Politics.
“As far what the legislature intended, unfortunately we have not been able to define any indications of what the legislature's specific intent is.” McKee said. “Given that the committee existed, perhaps the legislature thought that they should extend the Sunshine Law just as it would apply to a governmental entity to the collegial body that made the decision.”
During the appeal hearing, Judge Lori Rowe asked McKee whether the committee was made up of insurance representatives before being disbanded and whether anti-trust concerns where the reason behind the committee being eliminated.
McKee responded that since the committees were disbanded nationwide all at the same time, there was no assertion that the Florida committee was disbanded specifically to avoid the Sunshine Law in Florida.
When asked whether there was evidence as to why the committee was disbanded and whether there was any record to support the claim that the committee was eliminated, McKee claimed that there were no recorded assertions.
Despite Gievers' ruling that the 14.5 percent increase was invalidated, the increase was still allowed to take effect on its scheduled by the appeals court.
The court also issued a stay of Gievers' ruling until the end of the appeals process for the case.