While this may not seem a major issue (those greedy lawyers, again!) the reality is, the current fee structure has a potentially crippling affect for the labor force in Florida. Here’s why:
In 2003, the state Legislature, responding to complaints from industry lobbyists that workers’ compensation claims were largely driven by attorneys’ fees, passed a law that strictly capped collection of fees for attorneys representing injured workers. The fee allows for 20 percent of the first $5,000 in benefits secured for the worker, 15 percent of the next $5,000 and 10 percent of the rest. There was another portion of the statute, which indicated plaintiff lawyers were entitled to “reasonable” attorney fees.
However, our West Palm Beach worker injury lawyers know this was a problem because the requirement for “reasonable” reimbursement couldn’t be reached when the caps only allowed for, in some cases, less than minimum wage reimbursement for the attorneys working on these cases.
So in 2008, the Florida Supreme Court in Murray v. Mariner Health cited an attorney who received $685 for obtaining a $3,250 benefit award for a health care worker (an hourly reimbursement rate of $8), in ruling fatal ambiguity existed in the law. This was particularly true because these kinds of caps weren’t placed on attorneys representing employers or insurance companies. So, in essence, the employers in these cases could spend all the money they wanted, while workers were limited to help from lawyers willing to take these cases for minimum wage or less, depending on how much work they put into a case.
The court ruled this created a constitutional problem with regard to due process, access to courts and equal protection. In turn, the Legislature responded – by removing the word “reasonable” from the law. (This is sometimes referred to as “The Murray Fix.”) So now, we are left with a situation where attorneys who fight for workers’ rights are still grossly under-compensated, creating a great imbalance in court.
It is in this environment that new challenges arise.
One case that brought the issue to light is that of Florida Workers’ Advocates v. State of Florida , before the Miami-Dade Circuit Court. In that case, attorney fees for the workers’ legal advocate worked out to $1.53 hourly. The judge called the current workers’ compensation law with regard to attorney reimbursement “unconstitutional,” and called on the Florida Supreme Court to grant immediate review.
So far, the high court hasn’t taken the judge up on his request.
However, there are two other cases on this issue that likely will go before the court, and which could indicate whether the court is likely to defer to the legislature on such matters or, more boldly, make its own decision. These cases should also provide some insight into where this court stands on matters of workers’ rights versus the interests of employers and insurers.
The cases are Castellanos v. Next Door, et al. and Westphal v. City of St. Petersburg.
In the latter case, a firefighter who hurt his back on the job and needed spinal surgery was denied nine months worth of benefits because the statutory end of temporary total disability – 104 weeks – came nine months before a finding of maximum medical improvement, which triggered the start of permanent disability benefits. The district court tried to strike a balance on this issue, creating a new category of disability called “temporary permanent total disability.” However, that decision was appealed by the employer, and is now awaiting review.
If you have been injured, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Workers’ Comp Test Cases Before Florida Supreme Court, Oct. 20, 2014, By Noreen Marcus, Daily Business Review
More Blog Entries:
Barzey v. City of Cuthbert – Workers’ Compensation Death Benefits With No Dependent Relatives, Oct. 13, 2014, West Palm Beach Construction Injury Lawyer Blog