Now that the proverbial fee cat is out of the bag with the Emmay Murray decision, the First DCA–as it has done it the months leading up to the Supreme Court decision–has begun focusing its attention on what constitutes fee entitlement.

In the short opinion of Jennings v. National Linen, Claimant sought a reversal of the JCC’s denial of attorney’s fees.  Claimant, a PTD recipient, was treating with a pain management doctor until the physician advised he was giving up his practice and referred Claimant to a physiatrist for alternative care. 

The E/C agreed to authorize this alternate doctor (not a “change in physicians, mind you, since Claimant has no choice in the matter), but had a difficult time finding a physiatrist that would agree to evaluate and treat the patient.   (I assume because the injury was so old; the First DCA apply the 1997 version of section 440.34.)*  After five attempts with different physiatrists, Claimant filed a petition for benefits for the alternate doctor.  Yet, despite the failed attempts at securing a new physiatrist, the E/C continued to authorize treatment with Claimant’s old pain management doctor (I guess he had yet to retire?). 

The PFB went through the mediation process and ultimately the JCC heard the claim at a final hearing.  The JCC ruled that Claimant was entitled to the physiatrist, but denied his request for attorney fees since his attorney secured no benefit that the E/C was already providing. 

The First DCA affirmed, noting that the JCC simply ruled on a benefit that the E/C agreed to provide.  The E/C did not unreasonably delay the authorization of the physiatrist and Claimant continued to receive treatment.  Claimant was simply looking for the JCC to confirm what the parties already agreed to.   The Court went on to write:

“To award Claimant attorney’s fees, this Court would have to interpret section 440.34(3)(a) as holding that fees would be due whenever an E/C agrees to provide a requested treatment, particularly one that may be rare or limited, and the treatment or the services cannot be provided before a hearing can be held. Such a holding would essentially re-write the statute and discourage the self-executing nature of the worker’s compensation system.”

The last sentence seems to say to E/C’s out there not to fear Emma Murray; that if an E/C does its job then it should not be penalized with a fee.  In turn, the sentence tells Claimant attorneys not to clog up the system with unnecessary petitions just to secure a fee; a current worry of the First DCA since the Emma Murray decision. 

And this is what I’ve been advising my clients since Emma Murray.   Relax.  Don’t worry.  If you act reasonably and within the standards the law mandates, the “old days” of Claimant attorney fee fishing will not return.  

And, the First DCA will have your back.


*Even though this is case interprets the 1997 version of section 440.34, it is still applicable for today’s accidents since Emma Murray brings in all of the Lee Engineering standards that were codified before being eliminated on October 1, 2003.  Also, this case concerns fee entitlement, not amount.