Florida Statutes Section 440.34(3) has been amended, effective July 1, 2009, to provide an employer/carrier paid fee to a claimant's attorney for the successful prosecution of a claim shall be in an amount equal to the amount provided for in subsection (1), which is based on a percentage of benefits secured, or subsection (7), which is a one-time hourly fee for a medical only claim, not to exceed $1,500.
This amendment is a legislative response to the Florida Supreme Court's ruling in Murray v. Mariner Health [994 So. 2d 1051 (2008)], in which the Florida Supreme Court ruled an employer/carrier fee based on the predecessor statute, § 440.34(3), Fla. Stat. (2003), was to be a "reasonable attorney's fee" using the factors of R. Regulating Fla. Bar 4-1.5(b)(1) and not the statutory guideline fee provided for in subsection (1).
Although § 440.34(3), Fla. Stat. is an attorney fee statute, it is not just about attorney's fees. It is about a claimant's ability to obtain counsel in a workers' compensation case.
Fla. Stat. only comes into effect in a litigated claim. Furthermore, it does not apply until 30 days after the date the carrier or employer, if self-insured, receives the Petition for Benefits. It does not apply unless the claimant is successful in the prosecution of his or her claim. If an employer/carrier timely pays a benefit, or even if they pay it within 30 days of receipt of the Petition for Benefits, they have no obligation to pay the claimant's attorney's fee.
However, when an employer/carrier elects not to pay a claim, the claimant should have the same access to an attorney as does the employer/carrier. The courts have long recognized that without the aid of competent counsel in a workers' compensation case, a claimant is as "helpless as a turtle on its back" [Davis v. Keto, Inc., 463 So. 2d 368, 371 (Fla. 1st DCA 1985)]. The witnesses in Murray testified claimants would be unable to represent themselves against an employer/carrier because of the complexity of the law and the issues involved.
Limiting a claimant's attorney fee in a litigated claim, no matter how vigorously defended, to a percentage of benefits obtained, can lead to absurd results, as happened in Murray, prior to the Supreme Court's ruling, where claimant's counsel recovered $8.00 per hour. The witnesses in
Murray testified this amount was "manifestly unfair" and placed claimant at a disadvantage. The witnesses testified many claimants would be unable to obtain counsel when an employer/carrier wrongly denied benefits if there was no prospect for the attorney to be reasonably compensated. The concurring opinion in Wood v. Florida Rock Industries [929 So. 2d 542 (Fla. 1st DCA 2006)], the first case of the 1st DCA in which they interpreted § 440.34(3), Fla. Stat. (2003) to limit an employer/carrier paid fee to a percentage of benefits as set forth in subsection (1), observed how the validity of the statute, "which severely impairs, if not eliminates the ability of claimants to obtain the assistance of counsel" had not been raised in that case.
Procedural due process provides, among other things, that a party be given a meaningful opportunity to present evidence and to be heard. If a claimant is precluded from obtaining an attorney because of the limitation on attorney's fees set forth in the amendment to § 440.34(3), Fla. Stat. and cannot adequately represent himself or herself because of the complexity of the law, that claimant has been denied procedural due process. He or she is not given a meaningful opportunity to be heard, only a colorable or illusive one.
Equal Protection mandates that similarly situated persons be treated alike. An employer/carrier in a workers' compensation case has no restrictions on how much they can pay their attorney. They could retain a number of attorneys and pay them any hourly rate if they so choose. To the contrary, an attorney retained by a claimant, even in a litigated matter, is restricted to an attorney fee limited by a percentage of benefits secured, no matter how many hours were reasonably expended to secure those benefits. Even if claimants want to pay their own attorney, they cannot pay that attorney any more than the percentage of benefits allowed by section (1). If they contract to do so, they have committed a crime [see § 440.105(3)(c), Fla. Stat.]. There is nothing equal about the ability of a claimant and an employer/carrier to retain counsel in a litigated workers' compensation case.
The intent of the workers' compensation law is to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker's return to gainful re-employment at a reasonable cost to the employer. The law is intended to be self-executing. Many times it is. However, in those instances where it is not, and the parties have a disagreement on the benefits due, there is no rational basis to severely restrict the ability of either of the parties, particularly the party against whom the legislation was passed, i.e., the claimant, from obtaining competent counsel to litigate the dispute, by limiting the amount that counsel can be paid, regardless of the circumstances.
© Copyright 2009 LexisNexis. All rights reserved. This article was excerpted from Dubreuil's Florida Workers' Compensation Handbook, 2009 Edition (to be published August 2009).