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

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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Section 440.20(7), Fla. Stat., provides for a 20% penalty on compensation benefits payable pursuant to an "award" when the compensation is not paid within 7 days after it becomes due.  When an unrepresented claimant enters into a "washout" settlement agreement with the employer/carrier, he is entitled to the 20% penalty in the event of late payment of the settlement proceeds.  But a claimant who has an attorney is not entitled to penalties for a similar late payment.  See s.440.20(11)(c), Fla. Stat.

 

Does this unequal treatment of represented versus unrepresented claimants violate the Equal Protection clause of the Constitution?  No, said the First District Court of Appeal in Lucas v. Englewood Community Hospital, decided on 8/23/2007.  The statute bears "a rational relationship to a legitimate state interest."  The Court reasoned that the legisislature could rationally have presumed that a represented claimant is in a better position to negotiate the terms of settlement - including when the settlement proceeds are due and what penalty might attach in the event of a late payment.  The Court therefore affirmed the order of the JCC which had refused to award a penalty on the late payment of the claimant's $225,000 settlement.

 

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In 2003, the Florida Legislature amended §440.15(1)(f), the statute providing for so-called "supplemental benefits" in cases where the injured worker has been rendered permanently totally disabled as a result of his on-the-job accident.  Initially enacted in 1974, that statute provided for an annual 5% increase in the amount of the workers' weekly permanent total disability benefits.  Under a 1990 amendment, entitlement to these benefits terminated when the worker reached age 62 "if the employee is eligible for social security benefits under 42 U.S.C. ss. 402 and 423" (Emphasis added).

 

Under the 2003 amendment to the statute (Ch. 2003-412, s.18, Laws of Fla.), annual increases are now limited to 3%, and entitlement to those benefits now terminates at age 62 "regardless of whether the employee has applied for or is eligible to apply for" either social security disability or retirement benefits (Emphasis added).

 

In Wood v. Winter Garden Citrus Growers, the claimant was 66 years old when she was injured on 12/16/2003.  She was accepted as permanently totally disabled by the employer/carrier when she was 67 years old.  Under the First DCA's interpretation of the pre-2003 statute, she would have been eligible for PTD supplemental benefits.  See Burger King v. Moreno, 689 So.2d 288 (Fla. 1st DCA 1997).  Under the 2003 version of the statute, however, she was completely ineligible for PTD supplemental benefits, and she contended that the statutory amendment unconstitutionally denied her the equal protection of the law because it discriminated against her solely on the basis of her age.

 

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Since 1979, the First District Court of Appeal in Tallahassee has had exclusive, statewide jurisdiction over all workers' compensation appeals.  But that will change if a South Florida claimant has his way.  On 6/15/2007, in Saldana v. Miami-Dade County, Florida (large file, be patient), the claimant filed a petition for writ of prohibition in the Florida Supreme Court in which he challenges the constitutionality of s.440.271, the statute which grants such exclusive appellate jurisdiction.

 

Florida has five intermediate appellate courts which divide the state geographically.  Most appeals from trial courts around the state are filed in the district court of appeal in the geographic area of the state where the trial court sits.  But not workers' compensation appeals.  As part of the 1979 overhaul of the Florida Workers' Compensation Act, the Florida Legislature enacted s.440.271, which says that all workers' compensation appeals must be filed in the First DCA in Tallahassee.  Why was this done?  Well, for one thing, the Legislature believed that it would be better for one court to develop special expertise in this area of the law.  The intent also was to cut down on the number of workers' compensation appeals being filed in the Florida Supreme Court.  By limiting appeals to one district court of appeal - thus eliminating the possibility of inter-district conflict - the Legislature accomplished this goal.

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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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