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.

At first glance, my opinion is that the constitutional argument does not hold water.  The Legislature gave Carrier paid fees, they have every right to take them away.  American jurisprudence is based on each side paying their own attorney fees and not the victor taxing the loser.    This is not England (although with so many government owned businesses these days its looking awfully close like England).

So, that’s it.  No more constitutional argument, right?  Wrong.  After talking with some colleagues there is still a small statutory provision that puts into question the entire legitimacy of the recent statutory change.

Section 440.105(3)(c) makes it unlawful for “any attorney or other person, in his or her individual capacity. . . to receive a fee or other consideration or any gratuity. . . unless such a fee, consideration, or gratuity is approved by a judge of compensation claims.”  In other words, if a Claimant attorney wants to get paid, either by his client or the Carrier, the JCC must approved.  (Don’t ask me why this provision doesn’t apply to E/C attorneys.  Not one person has been able to explain this to me yet.)

The argument is this: if Claimant attorney is resigned to only being paid a paltry statutory fee by the Carrier (should he obtain the benefit for his client) then he can only seek a fee from his client.  However, his client cannot pay him more than the fee schedule allows, since the JCC cannot approve above guideline fees.  If he contracts with his client to pay more than the fee schedule, then he commits a crime.   So what we have here is a legal Catch-22 for Claimant attorneys and injured workers and this is where the argument for access to courts has teeth.

If a Claimant cannot pay his own attorney what the real world calls a reasonable fee (without breaking the law), and the attorney cannot get the Carrier to pay a reasonable fee then the Claimant will never find an attorney.  There is always state paid Medicare, right?

Will this win the day when a new Emma Murray winds her way through the appellate system and the Supreme Court gets another fee case?  I don’t know.  But, if the Legislature gives no recourse for Claimant’s to pay for their own attorney, then the argument at least has serious validity.

The best E/C’s can do is recognize what a test case might look like.   The Claiamnt’s bar is aggressively recruiting attorney’s in all areas of the State to find the next Emma Murray.   Make sure it is not one of your files.   I will be blogging about this in the upcoming future.

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