Florida Workers’ Compensation Attorney’s Fees – Round II (Emma Murray; Jennifer Kauffman)

At the urging of Governor Jeb Bush, Florida’s Republican-controlled legislature in 2002 passed a workers’ compensation bill designed to limit carrier-paid attorney’s fees to claimants’ attorneys. The measure was challenged in the courts by claimants (injured workers), who argued that it was unconstitutional (denied access to courts & equal protection) and that it should be interpreted to allow for “reasonable” attorney’s fees.

Five years after the bill’s effective date, the Florida Supreme Court, in Murray v. Mariner Health and Ace USA, 994 So.2d 1051 (Fla.2008), held that the statute provided for reasonable attorney’s fees. The court did not rule on the constitutional issues.

In a clear rebuke to the Florida Supreme Court, in it’s next legislative session, which began on March 1, 2009, less than seven months after the Murray decision, the still-again Republican-controlled legislature took another shot at limiting fees. What it did was remove the word “reasonable” from Florida Statute 440.34. The Legislature’s goal was to make it difficult for injured workers to obtain adequate legal representation by denying their attorneys reasonable attorney’s fees.

In the Murray case, Ms. Murray was successful at the trial level in convincing a judge of workers’ compensation claims (JCC) that her injuries were sustained in a work-related accident. (The employer/carrier (e/c) had denied her injuries.) In a subsequent attorney’s fee hearing, the JCC found that claimant’s counsel expended eighty hours of reasonable and necessary time on the case. However, the JCC, although concluding in his written order that $16,000 was a reasonable fee, felt constrained by the statute and awarded only $684.84, or an hourly rate of $8.11. According to the JCC, this amount was “manifestly unfair.” (Note: the e/c in this case paid their attorney $16,050 (135 hours at $125 an hour) in the unsuccessful effort to resist paying benefits.) It was this order that was appealed and eventually made its way to the Florida Supreme Court. As a result of the decision, Ms. Murray’s attorney was awared $16,000 for his efforts at the trial level.

The Supreme Court’s decision angered the Florida Legislature, the insurance industry, and big business. Their answer was to enact legislation denying reasonable attorney’s fees to claimants’ attorneys. Governor Charlie Crist allowed the legislation to become law. Hence, the stage was set for another challenge to the legislature’s mean-spirited handiwork.

On July 23, 2009, Jennifer Kauffman sustained an injury to her low back while attempting to transfer a patient into a recliner chair, when she lost her balance and fell backwards onto her buttocks and back. The accident was not witnessed and the employer investigated and disputed the claim. Ms. Kauffman hired an attorney and a claim was filed. The trial on the merits of the petition determined that all of the E/C’s defenses were denied and that the claim was compensable.

At a subsequent fee hearing, Ms. Kauffman’s attorney presented uncontroverted evidence of spending in excess of 100 hours to successfully prosecute the claim. The JCC found that “both parties vigorously and aggressively represented their respective parties’ interests,” and the “presentation of the evidence from both sides was difficult and complex.” Expert testimony was given that a reasonable rate of $200-$450 per hour was awarded within the jurisdiction in other types of cases. Nevertheless, the JCC felt bound by the statute and awarded a fee of $648.41, less than $7.00 per hour.

The JCC’s order has been appealed (Jennifer Kauffman v. Community Inclusions and Guaranty Insurance). The challenges involve constitutional issues and matters of statutory interpretation. Oral arguments were held on January 13, 2011 in the First District Court of Appeal, the first stop before reaching the Florida Supreme Court. As of the time this blog was posted, the 1st DCA had not issued its opinion.

If allowed to stand in its present form, 440.34 will have a chilling effect on the willingness of claimants’ lawyers to accept workers’ compensation cases and to handle them effectively.

Our law firm will continue to accept workers’ compensation on behalf of injured workers. However, we are hoping that the First District Court of Appeal and the Florida Supreme Court see fit to level the playing field to allow for the fair and effective prosecution of claimants’ cases.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Please contact our office for a free, confidential consultation.

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