During the last Workers’ Compensation Convention in Orlando, I learned of a new constitutional test case the Claimant’s bar was appealing that dealt head on with the 7/1/09 changes to the attorney’s fee provision in s. 440.34.

And last week, in the case Kauffman v. Community Inclusions, Inc., both parties presented their case at oral arguments.  However, as with most oral arguments, the First DCA judges determined the focus of the appeal and the direction of the arguments.   You can watch the video here.

Reviewing Claimant’s appellate brief, there are 5 “points of appeal,” or arguments, towards shutting down the new 7/1/09 changes as unconstitutional and/or via statutory construction.  There are the typical constitutional arguments of equal protection (there is no cap on E/C legal fees), to due process, to access to the courts.  There were also statutory construction arguments on what it means for a judge to “award” a fee versus a judge simply rubber stamping a fee.

I did not see or hear the argument regarding the catch-22 hanging over Claimant’s heads in section . 440.105(3)(c).  I wrote about this, back in July, 2009:

“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.” 

While both sides attempted to steer the argument their way, the Judges were more interested in the power of the legislature to limit attorney representation in the W/C system and whether the Claimant even has standing in this case.  Standing gives the Claimant the right to file the appeal since a decision will have direct impact upon her case.

During oral arguments, the First DCA judges seem to focus on whether Claimant has standing in this case.  After all, how can her constitutional rights be violated, by denying her access to courts, when she did find not just adequate representation but exemplary representation.  Obviously, the Claimant’s bar put their best attorneys on the case, but there was no clear answer to this question by Claimant.  One might expect them to have statistics revealing the affect the new attorney fee law has on injured workers in the State; how many injured workers are relying upon the state Medicaid system for health care (the long thin balloon take I referenced a while back); how the health of many injured workers are being affected by the delay–or lack thereof–in finding legal representation.

On the E/C side, the Judges lasered in on the premise of whether the Legislature can completely restrict an injured workers’ right to seek counsel.  After all, the Legislature created these benefits.  Are they not entitled to eliminate them?  The Legislature giveth.  The Legislature taketh.  

In the end, it looks like if the Claimant loses then it will be on standing.  If the E/C loses then it will be on access to courts.   However, as the E/C pointed out at oral arguments, the First DCA already shot down the constitutional arguments presented by the Claimant’s bar in its pre-Emmay Murray attempt to overturn the 10/1/03 fee changes.

Finally, there is still the possibility that the First DCA rules and certifies the case to the Supreme Court (again!) for a final decision.  The Supreme Court now is much different than it was in 2008, so any predictions are going to err on the side of maybe or completely wrong.

To be continued. . .