Claimant's Bar Redux

Although the Florida Supreme Court rendered judgement on the Emma Murray v. Mariner Health and Ace USA case in 2008, and the 2009 Florida Legislature subsequently passed related legislation, the underlying battle of claimant attorney fees continues. Nicole Hessen of the West Palm Beach law firm of Rosenthal, Levy & Simon, P.A., who concentrates her practice on representing workers, provides a synopsis of recent events and commentary on what may (or should) happen next.

According to current Florida statutes, a claimant attorney's fee is driven by the claimant's date of accident.

If a claimant was injured prior to October 2003, then a claimant's firm would be entitled to a statutory fee on the settlement. In addition, if there was a recommendation from a physician authorized to treat the claimant, and the employer/carrier failed to timely authorize same, then the claimant's attorney would get an hourly fee on any issue he was successful at securing for the claimant that was not timely authorized or improperly denied by the employer/carrier. The employer/carrier was only responsible to pay hourly fees if a benefit was wrongfully denied or not timely authorized.

In October 2003 the law changed, and restricted the claimant's attorney to a statutory fee on a settlement and a one-time only $1,500 fee on a medical benefit, regardless of the benefit in question or the amount of time associated with securing it. These fee restrictions applied only to the claimant's bar; the employer/carrier's attorney was under no such burden.

Landmark Case

The Emma Murray v. Mariner case challenged that statutory fee provision. The case slowly worked its way through the legal system, ending up at the Florida Supreme Court. This was the third attempt by the claimant's bar to have the Florida Supreme Court address the issue of reasonableness with regard to attorney fees. The first attempt was the Wood case; the second was the Lundy case. The Florida Supreme Court refused to hear those cases and eventually overturned the 1st District Court of Appeals on their decisions in those cases with the Murray decision.

After the Murray decision was released and became final in 2008, the claimant's bar was allowed once again to charge reasonable hourly fees on claims where we successfully secured benefits for our clients. We did not get hourly fees from our clients (the injured worker), only from the employer/carrier when we were successful in getting a benefit the insurance carrier denied or failed to authorize timely.

In response to the Murray decision, the Legislature struck the word "reasonable" from the statute, bringing us back to a statutory fee on the settlement and the $1,500 one-time only fee on a medical benefit if we are successful in securing the benefit at the trial level. By way of example: an MRI in a workers' compensation claim would cost the insurance carrier approximately $600. The statutory fee in taking this issue all the way to trial and securing the benefit would be $120 regardless of the amount of hours expended to secure the benefit (depositions, mediations, pre-trials and the actual Merit Hearing).

Back to the Drawing Board

The new statute applies to people injured after July 1, 2009. The claimant's bar is in the process of finding the right case to take up on appeal, but this process can take at least two or three years, and possibly more. The idea is that the statute is unconstitutional, as the employer/carrier is not limited in any way on the amount of attorney's fees it can charge, putting the claimant and the employer/carrier on unequal footing. This is extremely unfair and unjust! It makes it difficult for claimants to find counsel willing to successfully prosecute their claims. Our firm continues to actively pursue these types of claims, but many firms are not able to do so.

There are other portions of the statute that the claimant's bar also feels are unconstitutional and unfair. Those cases are currently in the process of being appealed and will hopefully have a favorable result, which in turn will make the entire workers' compensation statute unconstitutional. One of these issues deals with psychiatric care for injured workers.

Over the years, the law has become extremely unfavorable to the injured worker, the very person the law was originally drafted to protect. Our firm is dedicated to protecting the rights of the injured worker in connection with organizations such as the Workers Injury Law and Advocacy Group and the Florida Workers' Advocates.

Nicole Hessen is an attorney with the West Palm Beach law firm of Rosenthal, Levy & Simon, P.A. She may be reached at nhessen@rosenthallevy.com.