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

The ideological split among the current justices at the Supreme Court of Florida continued to show in three cases decided on 7/10/2008.  In Florida Dept. of Environmental Protection v.  Contractpoint Florida Parks, LLC, the court held 4-3 that §11.066(3), Fla. Stat., does not require a specific legislative appropriation before a state agency can be required to pay a valid judgment entered into for breach of contract with a private entity.  In the majority were Justice Pariente, along with Chief Justice Quince, Justice Anstead, and Justice Lewis.  Dissenting were Justices Wells, Cantero, and Bell.

 

In Wyche v. State, the court held 4-3 that a criminal defendant's saliva sample was not given involuntarily, and therefore not in violation of the Fourth Amendment, even though the police obtained the defendant's consent to giving the sample by telling him that he was a suspect in burglary A, when in fact there was no burglary A.  The State later tried to use the sample to prosecute the defendant in burglary B.  This time, Chief Justice Quince "switched sides" and voted with her three more conservative colleagues, Justices Wells, Cantero, and Bell.

 

And in Salazar v. State, Justices Bell, Cantero, and Wells, though concurring in the court's affirmance of the defendant's first degree murder conviction and death sentence, took issue with the standard of appellate review which should be afforded to a trial court's ruling on a motion for mistrial.

 

It'll be interesting to see whether and how this split plays out in Murray v. Mariners Health.  That's assuming, of course, that the court decides the case before the departures from the court of Justices Cantero, Bell, Wells, and Anstead over the next several months, as I noted here.

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One idea I heard bandied about after the enactment of the 2003 amendment to §440.34 was whether a successful claimant might avoid the fee limitations contained in the amendment by claiming entitlement to fees, in an appropriate case, under §57.105, Fla. Stat.  That statute provides for the award of attorney's fees to the prevailing party "in any civil proceeding or action" in which the court concludes that "a claim or defense" either "[w]as not supported by the material facts necessary to establish the claim or defense" or "[w]ould not be supported by the application of then-existing law to those material facts."  And, perhaps more importantly, it does not limit the amount of any such fees to a percentage of "benefits secured" by the attorney. 

 

The statute does provide for the award of fees in administrative proceedings.  See §57.105(5).  And the First DCA has occasionally awarded appellate attorney's fees under this statute in workers' compensation appeals.  See, e.g., Fumigation Dept. v. Pearson, 547 So.2d 352 (Fla. 1st DCA 1989).

 

But now, in Bell v. Weyerhaeuser, decided on 4/24/2008, JCC Lorenzen in Tampa has concluded that a judge of compensation claims lacks jurisdiction to award attorney's fees under this statute.  Workers' compensation proceedings, she reasoned, are neither "civil proceedings" nor administrative proceedings under Ch. 120.  Moreover, the Florida Workers' Compensation Law already contains a provision authorizing the award of attorney's fees for frivolous proceedings, to wit: §440.32, Fla. Stat. 

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Of course, the case on everyone's mind since I last posted is one that hasn't yet been decided - Murray v. Mariners Health, the case in which the Supreme Court of Florida is considering the validity of the 2003 amendment to §440.34, Fla. Stat.

 

The court held oral argument on 4/9/2008.  Over the years, I've concluded that it's oftentimes dangerous to try to guess the outcome of a case based upon the questions coming from the bench.  Nevertheless, I'll venture a guess here.  Judging from the justices' questions to counsel, it seems to me that the court is poised to strike down this amendment.  I'm less certain about whether they might do so on the basis of statutory construction or on constitutional grounds.  Despite the fact that they had declined to consider the statutory construction question in several previous cases (Wood v. Florida Rock Industries; Lundy v. Four Seasons; Campbell v Aramark); they seemed particularly interested in this argument here.  You can watch the oral argument by clicking below and judge for yourself (Windows Media Player required):

mms://146.201.215.129/Archives3wm/07-244.wmv

 

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I mentioned in this post that the law firm which filed an amicus brief on behalf of the Florida Police Benevolent Association and in support of the claimant in the Emma Murray case had cited one of its own cases, Weimer v. City of Kissimmee, as an example of a situation where the claimant has been hindered in his ability to retain counsel of his own choosing as a result of the 2003 amendment to §440.34.  In Weimer, the JCC refused to approve a contract between Wiemer and his attorney wherein Weimer agreed to pay his attorney an hourly fee instead of the percentage fee called for in §440.34, and Weimer filed a petition for writ of certiorari in that regard with the First District Court of Appeal.

 

The First District has now denied that petition in this 2/7/2008 per curiam affirmance.

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Four More briefs have been filed in the Florida Supreme Court in support of the claimant's challenge to the constitutionality of the 2003 amendment to §440.34, Fla. Stat., in the case of Murray v. Mariners Health.

 

The first, filed by the Workers' Compensation Section of the Florida Bar, doesn't add much to the discussion.  It simply suggests that the 2003 amendment is unconstitutional because it restricts access to courts.  You can read the brief here.

 

The second, filed by the Florida Professional Firefighters, Inc., essentially adopts the "due process" argument set out in Point III of Murray's Initial Brief, which I wrote about here.   The argument is that by restricting the amount of a "reasonable fee" to a percentage of the benefits secured by the attorney, the amendment creates an unconstitutional "irrebuttable presumption."  The brief, which you can read here,  also contains an interesting discussion of the history of workers' compensation laws in general and the Florida Workers' Compensation Law (Ch. 440, Fla. Stat.) in particular.

 

The third, filed by the Florida Police Benevolent Association, takes a slightly different approach.  The brief, which you can read here, alleges that law enforcement officers who are beneficiaries of the "heart-lung bill" (§112.18, Fla. Stat.) are in fact unable to take advantage of this act of legislative largess because they are unable to find competent counsel willing to assist them when the amount of attorney's fees which can be awarded are restricted to a percentage of benefits secured.  As an example, the attorney authoring the brief cites a case from his own firm, Weimer v. City of Kissimmee, OJCC No. 06-021829WJC.  In that case, the attorney's firm had asked the JCC to approve an attorney's fee retainer agreement wherein the claimant agreed to pay the law firm an hourly fee rather than having the amount of the fee limited to a percentage of benefits secured.  The JCC refused to approve the agreement in this order (worth reading), and as a result the law firm withdrew from representing the claimant further.  As a result, says the FPBA, the 2003 amendment is unconstitutional because it impairs the right of the claimant to freely contract with an attorney of his choosing. (Parenthetically, although the law firm withdrew from representing the claimant before the JCC, the firm has filed a petition for writ of certiorari, currently pending before the First District Court of Appeal in Case No. 1D07-4549, which challenges the order refusing to approve the retainer agreement.

 

The fourth, filed by an individual claimant, David Singleton (Singleton v. Seminole County School Board, OJCC No. 07-010864WJC), continues that theme and alleges that he also has been unable to retain counsel of his choosing because of the attorney's fee limitations.  Specifically, Singleton filed this petition for leave to retain the attorney of his choice based upon his agreement to pay the attorney an hourly fee, but in this order (worth reading) the JCC declined to approve the agreement.  (As with Weimer, the JCC's order refusing to approve Singleton's retainer agreement is the subject of a petition for writ of certiorari currently pending before the First District Court of Appeal.  See Case No. 1D07-5349).  Singleton argues in his Murray brief that the 2003 amendment impairs his constitutional right to contract with the attorney of his choice.  He also argues that the amendment denies him the right to counsel, access to courts, and equal protection.  You can read Singleton's brief here.

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Here's a link to an article from the 12/30/2007 edition of the Palm Beach Post regarding the effect of the 2003 amendment to §440.34, Fla. Stat.  As the attorneys challenging the constitutionality of the amendment have argued in Murray v. Mariners Health, Case No. SC07-244, now pending before the Florida Supreme Court, the article illustrates how the amendment makes it difficult for injured workers to find an attorney willing to represent them - particularly in cases where the amount of benefits at issue is relatively small.

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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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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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(Cont'd from Part III)

As I said earlier, it’s anyone’s guess how the Florida Supreme Court will ultimately rule on the merits of Murray, but if previous 4-3 decisions from the Court where Chief Justice Lewis and Justices Anstead, Pariente, and Quince were in the majority are any guide, I think proponents of the amendment have reason to worry.

 

I base that conclusion on the fact that the views of these same four justices have carried the day against the views of the other three in these cases (in reverse chronological order):

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(Cont'd from Part II)

 

SUPREME COURT REVIEW IN MURRAY AND BUITRAGO

In Murray, in addition to filing her notice to invoke the discretionary jurisdiction of the Supreme Court on 2/8/2007, she also filed with the Court a motion entitled “Motion to Determine Whether Jurisdictional Brief is Due and Motion for Extension of Time to Serve Jurisdictional Brief if Due.” (SC07-244).  By order dated 4/17/2007, the court entered an order once again declining review on the basis of the certified question but ordering the parties to submit jurisdictional briefs “as to the validity basis only.”

 

So did the First DCA in Murray “expressly declare valid” the 2003 amendment to §440.34?  The employer/carrier argued in their jurisdictional brief that it did not.  Rather, they argued that the First DCA’s decision was in essence just a “citation PCA.”  See Gandy v. State, 846 So.2d 1141, 1144 (Fla. 2003)(holding that “we do not have jurisdiction to review per curiam unelaborated denials of relief from the district courts of appeal that. . . merely cite to a case not pending on review in this Court, or to a statute or rule of procedure, and do not contain any discussion of the facts in the case such that it could be said that the district court ‘expressly addresse[d] a question of law within the four corners of the opinion itself’” (Emphasis added)).  Though the First DCA’s Murray decision does note that the claimant’s constitutional challenges to the amendment were previously considered and rejected by the court in Lundy and Campbell, it contains no discussion of the facts of the case whatsoever.

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(Cont'd from Part I)

JURISDICTION OF THE FLORIDA SUPREME COURT

The Court’s mandatory appellate jurisdiction is actually quite limited. The court is required to hear an appeal only if it involves a death sentence, if it is a decision of a district court of appeal which declares invalid a state statute or state constitutional provision, or if it is a decision involving a bond validation or rates which public utilities may charge. See Art. V, §3(b)(1) and (2), Fla. Const.; Fla. R. App. P. 9.030(a)(1).

 

The Court’s entire remaining appellate jurisdiction is discretionary.  Except for situations not relevant here, the Court’s discretionary jurisdiction is limited to reviewing decisions of a district court of appeal (“DCA”) that: (1) “expressly declare valid a state statute;” (2) “expressly and directly conflict” with a decision of another DCA or of the Supreme Court; or (3) pass upon a question certified by the DCA to be one “of great public importance.” See Art. V, §3(b)(3), Fla. Const., Fla. R. App. P. 9.030(a)(2). 

 

The party seeking to invoke the Court’s discretionary jurisdiction under grounds (1) or (2) above are required to file jurisdictional briefs with the Court to explain not only why the Court has jurisdiction, but why the Court should exercise its discretion and hear the case. Jurisdictional briefs are not required, however, under scenario number (3) where the DCA has certified that its decision passes upon a question of great public importance. In fact, they aren’t even permitted. See Fla. R. App. P. 9.120(d).

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The Florida Supreme Court has now agreed to consider the constitutional validity of the 2003 amendment to §440.34, Fla. Stat., which took away the JCC's discretion to award claimant's attorney's fees in excess of a percentage of the "benefits secured" by the attorney.  It’s anyone’s guess how the Court will ultimately decide the case of Murray v. Mariners Health, of course, but if other recent Supreme Court decisions and the proceedings in the case thus far are any indication, the Court’s 4-3 decision to accept review in the case might not bode well for proponents of the amendment. (Previous posts on this issue can be found here, here, and here).  In the next few posts, I’ll try to explain why I think that might be so.

 

CHALLENGES TO THE 2003 AMENDMENT TO DATE

First, let’s look at the challenges to the amendment thus far and the reasons why the Supreme Court may have declined review up until now.  To date, the First DCA has considered and rejected such challenges in seven different cases involving written opinions. They are (in chronological order): (1) Wood v. Florida Rock Industries; (2) Lundy v. Four Seasons Ocean Grand Palm Beach; (3) Campbell v. Aramark; (4) Buitrago v. Landry’s; (5) Murray; (6) La Petite Academy v. Duprey; and (7) Payne v. Wal-Mart.

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In what will surely be a closely watched case, the Florida Supreme Court on 10/30/2007 agreed to accept jurisdiction in Murray v. Mariners Health, a case which I wrote about here.  As it had in several other cases, the First District Court of Appeal in Murray rejected a constitutional challenge to the 2003 amendment to §440.34, Fla. Stat.  That amendment restricted the amount of attorney's fees which may be awarded to a successful claimant's attorney to a percentage of the value of the benefits secured by the attorney. 

 

You can read the Supreme Court's 4-3 decision agreeing to accept jurisdiction here.  As they have recently, the justices once again split along ideological lines.  The majority (Chief Justice Lewis, along with Justices Anstead, Pariente, and Quince) which agreed to accept jurisdiction is the same majority which recently prevailed in the "impact rule" cases which I wrote about here.

 

The Petitioner's Initial Brief is due to be served on 11/26/2007.  Oral argument is scheduled for 4/9/2008 at 9:00 a.m. in Tallahassee.

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Here's yet another case where the First District Court of Appeal rejected a challenge to the constitutionality of the 2003 amendment to s.440.34.  This amendment limits the amount of fees which can be awarded to a claimant's attorney to a percentage of the "benefits secured" as a result of the attorney's efforts.  Pursuant to this amendment, the JCC awarded the claimant's attorney a fee of $100.00 for obtaining $500.00 worth of benefits, even though the parties stipulated that the attorney reasonably expended 10 hours of time in obtaining the benefits.  The amendment therefore resulted in an effective rate of $10.00 per hour.  You can read the JCC's decision here.

 

As I wrote about here and here, there are currently two cases still pending before the Florida Supreme Court which are awaiting a decision from the Court on whether it will accept jurisdiction.  The Court has so far declined to address the issue in four other cases.

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In 2001, the legislature amended s.440.20(11), Fla. Stat., to repeal the JCC's former duty to review a proposed lump-sum settlement of an injured worker's right to future benefits to ensure that it was in the best interests of the worker.  See Ch. 2001-91, s.17, Laws of Fla.  Under the revised statute, in cases where the injured worker is represented by counsel, the JCC has jurisdiction only to review the amount of attorney's fees paid by the claimant to his attorney for obtaining the settlement and to ensure that any child support arrearages owed by the worker are paid from the proceeds of the settlement. 

 

But what happens if the JCC approves the amount of attorney's fees but does not approve of the amount of costs being charged to the worker by his attorney?  Can the JCC refuse to approve both the attorney's fees and the costs?  That's what the JCC did in this order.

 

But the First District Court of Appeal has now said no.  In Eshlibi v. Consolidated Box Manufacturing, decided on 7/31/2001, the Court said that "a JCC lacks statutory authority to deny the attorney's fees based upon costs charged to the claimant" in lump-sum settlement cases.

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This case reminds us that in setting the amount of attorney's fees owed to the claimant's attorney under the pre-2003 version of s.440.34, Fla. Stat., the JCC is bound by the evidence before him and may not use his own, independent judgment regarding the number of hours reasonably expended by the attorney or a reasonable hourly rate.

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On 7/13/2007, the Florida Supreme Court denied review in Duprey v. La Petite Academy, a case which involved the consitutionality of the 2003 amendment to the attorney's fees provision of the Florida Workers' Compensation Act, and which I wrote about here.  That leaves only Murray v. Mariners Health (Case No. SC07-244) and Buitrago v. Landry's (Case No SC07-762) still pending before the Court on this question.

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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). 

 

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