Is the new attorney fee amendment consitutional?

I hope you are enjoying your summer.  You know I am considering the complete lack of posts I’ve written since Crist signed the new attorney’s fee law in May.  But, as of July 1 (aka, last Thursday) this new fee provision–where the word “reasonable” no longer exists–took effect.   This will result in a new debate within the W/C community.

The next battle to take place, in this ongoing struggle between the insurance lobby and the Claimant’s bar, is whether this newest revision is constitutional.  Remember, the Claimant in the Emma Murray decision argued the 2003 changes violated her constitutional right to due process, more specifically access to courts.  The Florida Supreme Court declined to consider the constitutional arguments and instead found that section 440.34(3) statutorily ambiguous, finding that a JCC could determine “reasonable fees.”

But, what about now?  Since the Legislature removed the word “reasonable” then the sun sets on Carrier paid fees, right?  Further analysis may prove otherwise.  More after the jump.

 

Workers’ Compensation is like a long thin clown balloon

Even though the new House bill that overturns Emma Murray was voted  in Congress on May 1, it did not land on Governor Crist’s desk until this past Friday, May 15.  Therefore, Crist has until May 30 to veto the bill.  If he does nothing then, according to the Florida Constitution, the bill automatically becomes law. 

Considering Governor Crist’s penchant for doing nothing, it seems to be a safe assumption that this bill will become law.  But, that is not stopping some major news publications from arguing for Crist to veto the bill.  (See the St. Pete Times editorials here and here.)

But none of these editorials make the argument as succinctly and compelling as one I heard today from a fellow Workers’ Comp attorney.  He called it the “long thin clown balloon” theory and it goes as follows. . .

 

Claimant must have knowledge of return to work status for appropraite denial of TTD benefits

The phrase “ignorance of the law is no excuse” is applicable to all areas of jurisprudence.  But not Florida Workers’ Compensation law.  Here, we embrace ignorance of the law to an art form. 

For many Claimants, the process of receiving medical treatment is a confusing one.  Even though it is required of them, many physicians do not inform Claimants of their work status.  For Employer/Carriers this can be very frustrating since we are responsible for paying disability benefits based on the opinions of the authorized doctors.  Unfortunately for E/C’s, if a Claimant thinks that their doctor has them off work and that is not the case, but the doctor has failed to notify Claimant, the E/C still must pay.

In this case, ignorance is bliss.

 

Exclusion of witnesses by the Judge is a “drastic remedy”

When both Claimants and E/C’s are forced to litigate their disputes on the “rocket docket”–or 210 days from the date of Petition to trial–there has to be mutual cooperation between the parties to accommodate discovery.  If there can be no cooperation, for whatever reason, it is the Judge of Compensation Claims duty to weigh the interests of a quick resolution versus due process.

In a recent case, the First DCA leaned towards due process, allowing a Claimant to present a doctor’s testimony whose deposition may have (or not) violated a discovery order.

 

Like Lazarus, the anti-Emma Murray bill rises from the ashes and passes

Making me eat my own words, the Florida Legislature reconciled the two versions of the anti-Emma Murray bill and decided to go with the much simpler House version,HB 903, which simply removes the word “reasonable” from section 440.34.  As everyone knows, the Supreme Court found that the 10/1/03 changes to 440.34 created a statutory ambiguity and this bill (now potentially the law) removes that ambiguity.

 

The legislative attempt to overturn Emma Murray appears to be dead

David A. MaCranie, Esq., who has been blogging about Florida’s Workers’ Comp law well before me, is a very respected attorney in the field and has been keeping better tabs than I on the political machinations of the Legislature’s attempts to overturn Emma Murray (see my prior posts about the subject here and here). 

In David’s blog, he reports that the Senate version of the bill–which has become Frankenstein’s monster–was approved yesterday by a unanimous vote of 39-0.  That amended version of the House bill brought back bad faith claims, raised the statutory fee percentages, removed JCC approval for Claimant paid fees, but gave an exception to first responders.  

 

New version of Senate anti-Emma Murray bill to include exception for first responders

After another round in front of the Government Appropriations Committee yesterday, Senate Bill 2072, which I posted about yesterday, was passed, but not without Frankenstein’s monster getting another appendage.  Next stop, the floor of the Senate for a full vote.

This time–in an obvious effort to calm the police and firefighters unions–the Senate added an exception to the heavily bloated bill that would give an exception to first responders by allowing the Emma Murray decision just to apply to them.   That’s right.  According to the latest and greatest SB 2072, which is headed to the Senate floor for a full vote, only attorneys for first responders (that is union attorneys) would be entitled to hourly fees.  The rest of Florida’s work force will have to hope to find an attorney that can get paid through the old bad faith law, now inserted within SB 2072.  You can read the new first responder amendments here. 

So the question remains as we all await the full Senate vote: is this bill worth the time spent lobbying for it?

My answer after the jump.

 

Florida Senate bill to overturn Emma Murray meeting more resistance than House version

During the Workers’ Compensation Forum last week–which can easily be described as a successful event–many of us learned of the recent developments of Senate Bill 2072.   Per a recent post, I discussed how the Florida Legislature is tackling the Emma Murray decision head on, attempting to enact legislation to overturn the Supreme Court decision that reinstated hourly fees for Claimant attorneys.

The House version, HB 903, sailed through committees and ultimately passed on March 31.  The identical Senate version, however, has met significant stiffer resistance.  Now, SB 2072, is amended to the point where the two versions look nothing alike and, in my opinion, is weighed down with too many controversial ”compromises” that I cannot foresee how either side will agree to.

Let’s look at the controversial amendments. . .

 

A Claimant refuses light duty work. Is it “justifiable”?

I bring this subject up mainly because the past few files referred to me have to do with this subject.  I even had a trial on the issue (which the parties ultimately settled) last week.

What I am referring to is whether  an Employer/Carrier can suspend or deny temporary partial disability benefits if a Claimant refuses light duty work offered by the employer.  The statute, section 440.15(6) is clear that a Claimant is not entitled to TPD benefits unless the refusal is justified.  “Justified” being the key word and the definition  to be interpreted by the JCC  at final hearing.

In two of the three most recent cases I have, both Claimants were injured in compensable accidents, placed on restrictive work duty (let’s call it light duty for purposes of this post) and both refused.  So, the E/C can just deny benefits, right?  Unfortunately, it is not that easy.  An E/C needs to take an honest, objective look at each individual case to determine if the refusals are justified.

 

House Bill to overturn Emma Murray approved for floor vote

I will never qualify myself as any politico, so take this news for what it is, not what it could be.

The Florida House of Representatives passed through committee a new bill that would remove the word “reasonable” from the section 440.34(3).  This is an obvious attempt to overturn the Emma Murray v. Mariner Health decision, which the Florida Supreme Court statutorily interpreted the use of the word “reasonable” to mean that that a Judge of Compensation Claims can award an hourly fee above the guideline.  (See my post on the decision here.)