Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

In Liberty Mutual Ins. Co. v. Steadman, a case which I wrote about here and here, the Second District Court of Appeal held that Steadman's complaint, which alleged that Liberty Mutual had refused to authorize treatment for her life-threatening medical condition even after the JCC ordered them to do so, stated a valid claim for intentional infliction of emotional stress.

In seeking review of this decision by the Florida Supreme Court, Liberty Mutual contends that the Second District's decision conflicts with the supreme court's decision in Aguilera v. Inservices, Inc.  In Aguilera, says the insurer, the supreme court expressly held that a "mere delay in payments" is insufficient to avoid the "exclusive remedy" provision.  You can read the brief by clicking here.

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The Honorable Richard W. Ervin, III, recently retired from his long tenure as a member of the First District Court of Appeal, has co-authored this amicus brief which has been filed in support of the petitioner in Murray v. Mariners Health and on behalf of Voices, Inc.  According to the Statement of Interest contained in the brief, Voices, Inc., is "a nonprofit organization made up of injured workers and their supporters" whose purpose is "to guide injured workers and their families through the workers' compensation system and educate them to their rights under Florida law."  Judge Ervin authored a concurring opinion in Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506 (Fla. 1st DCA 2006), another case where the First DCA considered, then rejected, a challenge to the 2003 amendment to §440.34.  I thought it would be interesting to compare and contrast the arguments raised in the amicus brief with those expressed in his earlier concurrence while sitting as a member of the Court.

In his concurring opinion in Lundy, Judge Ervin argued that the 2003 amendment is probably constitutional on its face, noting that many states require the claimant to pay his own attorney's fees even in cases where he prevails:

I strongly doubt that the Florida worker's compensation attorney-fee statute, section 440.34(1), Florida Statutes (2003), could be subjected to a successful facial constitutional challenge,which requires the challenger to establish that no set of circumstances exists under which the statute could be determined valid in that such 'challenge considers only the text of the statute, not its application to a particular set of circumstances.' 932 So.2d at 510-11 (Ervin, J., concurring).

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Although it's difficult to tell all of the facts from the Court's brief opinion, it would appear that the employee had an employment contract with his employer in which he agreed to arbitrate rather than litigate any employment-related claims under the "Employment Retirement Income Security Act, Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the Americans with Disabilities Act, the Older Workers' Benefits Protection Act, as well as all other federal, state, and local employment-related laws, regulations, rules or theories."  The contract specifically excluded from arbitration, however, those claims brought under "the workers' compensation laws." 

The employee here brought suit against the employer for malicious prosecution.  The Third DCA held that "the instant claim stems directly from [the employer's] actions during the workers' compensation case," and therefore "it is not arbitrable under the parties' agreement."  Although the opinion doesn't say so, I suspect that this must stem from some allegedly false accusation of workers' compensation fraud.  Cross v. Braman Motors, Inc. 

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The Florida Justice Association (formerly known as the Academy of Florida Trial Lawyers) has filed an amicus brief in support of the petitioner in Murray v. Mariners Health.  You can read their brief here. 

Unlike the petitioner, they limit their argument against the constitutionality of the 2003 amendment to §440.34 to contending that the amendment violates Art. I, §21, Fla. Const., the "access to courts" provision.  Here's my summary of their argument:

The legislature may not abolish a right without providing a reasonable alternative to recovery unless an overpowering public necessity can be shown.  As recently as 1991, the Florida Supreme Court held that the benefits available to an injured worker under the Florida Workers' Compensation Law continued to provide a reasonable alternative to the right of the worker's right to recover from his employer in tort.  See Martinez v. Scanlan, 582 So.2d 1167 (Fla. 1991). 

Since that time, however, the legislature has sharply reduced the benefits available to an injured worker in the workers' compensation system.  By way of comparison, the benefits awarded to Murray in this case amounted to $3,244.21, whereas a review of recent jury verdicts in tort claims involving injuries similar to those suffered by Murray have been as high as $2M. 

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(Cont'd from Part I)

Here's my summary of the claimant's arguments before the Supreme Court:

• STATUTORY CONSTRUCTION

(1)  The limitation on attorney's fees is contained in subsection (1) of §440.34.  However, it is subsection (3) of §440.34 which governs the award of fees to be paid to the claimant's attorney by the employer/carrier, and that subsection contains no percentage cap on the amount of fees which may be awarded.  Therefore, subsection (1), with its percentage caps, applies only in instances involving a joint stipulation for a lump-sum settlement, or a stipulation by the claimant to pay his own attorney a fee.  It does not apply where the employer/carrier is ordered to pay the claimant's attorney a fee under the circumstances enumerated in §440.34(3).

(2) As Judge Ervin noted in his concurring opinion in Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 542 (Fla. 1st DCA 2006), application of the percentage limitations to carrier-paid claimant's attorney's fees would produce results not intended by the legislature, such as mandating a percentage fee for attorneys who successfully defend a compensation award on appeal, or who obtain an order enforcing a previous compensation award, or who obtain an order modifying a previous compensation award, when a fee has already been paid for securing those benefits.

(3) In Makemson v. Martin Co., 491 So.2d 1109 (Fla. 1986), the Florida Supreme Court held that §925.036, Fla. Stat., which set maximum fee limitations for attorneys appointed by the court to represent indigent criminal defendants, was unconstitutional as applied and that the courts have the inherent power to allow fees in excess of the maximum allowed by the statute in "extraordinary and unusual" cases.  [In Makemson, the court-appointed attorney had expended a total of 248.3 hours representing an indigent criminal defendant, yet his fees were capped by the statute at only $3,500.00, an effective hourly rate of $14.10].  The judges of compensation claims should have similar authority in workers' compensation cases.

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The claimant has filed her initial brief in the Florida Supreme Court in the case of Murray v. Mariners Health, the case where the Court has agreed to consider the constitutionality of the 2003 amendment to §440.34, Fla. Stat.  You can read a copy of the brief here.  Here's my summary:

• FACTS  AND PROCEEDINGS BEFORE THE JCC

Emma Murray was injured in an accident on 10/31/2003.  The employer/carrier contested the compensability of the accident, but after a hearing on the merits, the JCC rejected that position and awarded her TTD benefits totaling $1,763.86, out-of-pocket medical expenses totaling $1,092.57, interest in the amount of 352.78, and penalties in the amount of $35.00.

Murray's attorney thereafter filed a verified petition for attorney's fees in which he alleged that he had expended 84.4 hours in securing those benefits.  He alleged that a reasonable hourly rate for his services was $200.00 per hour. The attorney contended (1) that the 2003 amendment to §440.34 applies only to settlement agreements, (2) that a percentage fee based upon the value of the benefits secured by the attorney would be "manifestly unfair, and (3) that limiting the fee to the percentage amount would be an unconstitutional denial of equal protection, access to courts, and a violation of the separation of powers clauses of the state constitution. 

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One of the many changes wrought by the 2003 amendments to the Florida Workers' Compensation Law was a change regarding immunity from tort liability for subcontractors on construction jobs.  Specifically, the 2003 amendment to §440.10 now provides so-called "horizontal immunity" from tort liability for injuries to employees of other subcontractors provided that: (1) the defendant subcontractor has secured workers' compensation insurance coverage for its own employees; and (2) the defendant subcontractor's own "gross negligence" was not the "major contributing cause" of the injuries.  Here's an article from the 12/4/2007 edition of the Florida Times-Union which illustrates the effect of this amendment in one case.

One of the attorneys quoted in the article questions the constitutionality of this amendment.  I'm not sure what the courts would say about this.  On the one hand, the Florida Supreme Court held that a 1971 amendment to §440.11 was an unconstitutional denial of "access to courts"  [see Art. I, §21, Fla. Const.] insofar as it purported to abolish a cause of action for indemnity against an employer by a third-party tortfeasor.  See Sunspan Engineering & Const. Co. v. Spring-Lock Scaffolding Co., 310 So.2d 4 (Fla. 1975).  On the other hand, that court later held that a 1978 amendment to §440.11 which raised the standard for bringing a liability claim against a co-worker of the same employer from simple negligence to "gross negligence" did not deny the injured worker access to courts.  See Iglesia v. Floran, 394 So.2d 994 (Fla. 1981).

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The Florida Division of Workers' Compensation has announced that the maximum compensation rate for accidents occurring in 2008 is $746.00 per week.  See DFS-14-2007. 

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On 11/30/2007, Liberty Mutual filed a Notice to Invoke the Discretionary Jurisdiction of the Florida Supreme Court in the case of Liberty Mutual v. Steadman, a Second DCA decision which I discussed here.  The Second DCA held in that case that Steadman's complaint, which alleged that Liberty Mutual had engaged in a number of "outrageous" acts in the handling of Steadman's workers' compensation claim, stated a valid cause of action for intentional infliction of emotional distress.

Because no conflict or question of great public importance was certified by the district court of appeal, I assume that Liberty Mutual will contend that Supreme Court jurisdiction exists on the grounds that the decision "expressly and directly conflicts" with a previous decision of the Supreme Court or with that of another district court of appeal.

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