Is the 2003 Attorney's Fees Amendment Constitutional?
Perhaps no provision of the 2003 amendments to the Florida Workers' Compensation Act has stirred more debate than the provision limiting attorney's fees to claimant's attorneys. Florida workers' compensation law has long provided that successful claimant's attorneys are entitled to be paid a fee from the employer/carrier in certain circumstances. The starting point for determining the amount of that fee was a percentage of the "benefits secured" by the attorney as a result of his efforts.
But the statute allowed the judge of compensation claims to opt out of those statutory percentages in cases where the amount of the resulting fee would be "manifestly unfair." Generally, this occurred in cases where the amount of the "benefits secured" was relatively small but the amount of time devoted by the attorney in order to secure those benefits was relatively large. In these cases, the judge could award a fee based upon the number of hours reasonably devoted by the attorney in prosecuting the claim, multiplied by a reasonable hourly rate. The ability to deviate from the statutory percentages was necessary, the First District once reasoned, because otherwise in small cases the claimant would be as "helpless as a turtle on its back," i.e., unable to secure competent counsel to represent him. Davis v. Keeto, Inc., 463 So.2d 368, 371 (Fla. 1st DCA 1985).
That all changed with this 2003 amendment to s.440.34, Fla. Stat. That amendment stripped from the judge of compensation claims his discretion to deviate from the statutory percentages. Now, any claimant's attorney's fee must equal a percentage of the "benefits secured" by the attorney. In two reported cases, that requirement has resulted in fees of $229.70 for 16.7 hours of attorney work ($13.75/hour) and $340.00 for 26 hours of attorney work ($13.08/hour). See Wood v. Florida Rock Industries and Lundy v. Four Seasons Ocean Grand Beach.
So far, the First District Court of Appeal has rejected all constitutional challenges to the amendment. See Wood, Lundy, Campbell v. Aramark, Murray v. Mariners Health, Buitrago v. Landry's, and La Petite Academy v. Duprey. And so far, the Florida Supreme Court has refused to either hear Wood (Case No. SC06-1202), Lundy (Case No. SC06-1421), or Campbell (Case No. SC06-1693).
Nevertheless, as of right now, a decision from the supreme court on whether to accept jurisdiction is still pending in Murray (Case No. SC07-244), Buitrago (Case No. SC07-762), and Duprey (Case No. SC07-396). You can read the parties' jurisdictional briefs in Murray here and here and the jurisdictional briefs in Duprey here and here. In Buitrago, no jurisdictional briefs have been filed because the supreme court entered an order on 5/23/2007 staying any further proceedings pending the court's decision on whether to accept jurisdiction in Murray.
So is the 2003 attorney's fee amendment constitutional? So far, the answer is yes. But we'll see.
