The Emma Murray decision finally arrived today and, as expected, the Supreme Court ruled in favor of Claimant and found that a Judge can determine reasonable hourly attorney fees for Claimant attorneys.  The ramifications of this are huge, to say the least.  But, there are still some unanswered questions regarding fee entitlement for medical only claims.   You can read the decision here

First, let’s dive into what the five justices (Wells, Quince, Pariente, Anstead, and Lewis) write about. . .

The Court did not find that section 440.34, the fee provision of the statute, was unconstitutional.  It didn’t need to.  It applied statutory construction rules in determining that the provision was ambiguous in its meaning.  The problem they saw with 440.34 was the subsection (1) of the statute mandated a strict guideline fee to Claimant attorneys.  Yet, subsection (3) of the statute mandated a “reasonable” fee for any Employer/Carrier paid fee. 

The Supremes were left with an anomoly:  What if a Carrier paid fee that must be a strict guideline fee as mandated in subsection (1) is unreasonable and therefore violates subsection (3)?

A rule of statutory construction is that an appellate court must look to the Legislative intent when writing the statute.  However, the Supremes could not find any indication why the Legislature made the 2003 changes to 440.34 (a hard thing to believe considering the amount of press that Congress got regarding tort reform).  So, the next step in statutory construction is when two subsections are in conflict, the specific subsection controls the general subsection.

Since subsection (3) specifically discusses Claimant attorney’s fees paid by the Employer/Carrier, and subsection (1) discusses fees in general but silent as to Employer/Carrie paid fees, the specific sub (3) controls the general sub (1). 

The third rule in statutory construction is that a statute will not be construed in such a way that it renders meaningless or absurd any other statutory provision.  If the Court construed sub (3) as being controlled by the fee guidelines of sub (1), the “reasonable” standard in sub (3) would be meaningless. 

The Court is quick to note that applying a guideline fee to all claims can result in inadequate fees where an attorney expends a huge amount of time and effort for a benefit of little value.  It can also result in an excessive fee where an attorney expends very little time and effort for a benefit that has a huge value. 

So how will “reasonable fees” be determined in the future?  The Court resurrects its prior decision of Lee Engineering v. Fellows, which lists six factors in which a Judge may increase or decrease the guideline fee.  (I’ll save the resuscitation of those factors for another blog post.)

Although, the Emma Murray decision does not settle everything.  The one fly in the ointment that I see right away is a footnote where the Supremes do not address section 440.34(7), the provision which awards a medical only fee capped at $1500, once per claim.  Isn’t this a guideline fee?  What happens in the future with medical only claims?  Does Lee Engineering apply or is the fee still capped at $1500?  I am confounded as to why the Supremes would leave this open to conjecture when they were so overreaching in the defining of sub (1) and sub (3). 

So, what does this mean for Employer/Carriers?  For one, smaller claims will have greater weight than they did before.  A simple claim for an MRI scan, or physical therapy, or an adjustment to the average weekly wage, have the possibility for exposure beyond the value of the benefit.  Vigilance will be required.  In some cases, it may not be worth it to fight.  But, those smaller claims can no longer be ignored or put aside.  They could cost E/C’s more than they initially realize.

Second, this is not the end of the world.  There will be increased litigation, but the return of the “good old days” is doutful.  For the past six months, the First DCA has been releasing a slew of decisions that are very E/C friendly, particularly giving teeth to section 440.34(3) which grants prevailing E/C’s the right to tax costs against Claimants.  This will chill any explosion of litigation.

Third, E/C’s need to get their attorney’s involved with claims at an earlier stage than they have prior.  A competent defense attorney can better foresee the fee exposure in a claim if they can get a set of eyes on it before a conflict arises.  This includes loss prevention as well.  Recognizing what injured workers are entitled to before an accident occurs will insure your litigation costs remain low.  The bottom line is, do not let things fester after an accident occurs.

I am sure you have many questions.  Feel free to email me.  I will be dissecting this decision more and will post additional commentary accordingly.

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