Emma Murray is a certified nursing assistant who suffered an injury when lifting a patient at work. She was diagnosed with a prolapsed uterus and underwent a total hysterectomy. Her employer/carrier disputed the claim and asserted that there was no injury related to the lifting of the patient and that her claim was fraudulent making her guilty of the crime of insurance fraud. Ms. Murray hired an experienced attorney and sued for the recovery of the denied benefits. She won. The judge hearing her case determined that the independent medical examiner's testimony was "most convincing" in relating her hysterectomy to the workplace incident. Ms. Murray was awarded $3,244.21 in benefits. Because Ms. Murray proved that she was wrongfully denied benefits, the judge then awarded her the statutory formula of $684.84, as attorney's fees for her counsel's 80 hours of attorney time. This computed to $8.11 per hour. The employer/carrier attorneys were paid by their client the amount of $16,050 (135 hours x $125 per hour), "win or lose", to lose the case. An appeal of the claimant's fee award was taken arguing that the award was unconstitutionally too low.
In 2003, Florida's legislature passed "reforms" to its Worker's Compensation laws. The changes included an effort to limit a claimant's right to recover a reasonable attorney's fees, as was provided for by the pre-2003 statutory scheme. The 2003 amendments provided that a scheduled attorney's fee based upon 20% of the first $5,000 of the benefits secured, 15% of the next $5,000, and 10% of the first ten years of benefits and 5% of the next ten years of benefits secured be paid by the employer/carrier as claimant's attorney's fees. Such fee shifting would only occur when the injured worker went to court and proved that the employer/carrier had failed to pay the benefits legally due under the law. The 2003 amendments did not, however, delete an existing reference to "recovery of a reasonable attorney's fee from the carrier or employer" contained in another subsection of the Act. Sections 440.43(1), (3), Florida Statutes (2003). On October 23, 2008, the Florida Supreme Court held that the 2003 amendment merely created an ambiguity in the overall statutory scheme and held that the schedule of attorney's fees provision did not preclude an award of a higher "reasonable fee". By its ruling, the Court avoided reaching a broader issue of whether the 2003 Amendments in totality were unconstitutional.
"The first thing we do, lets kill all the lawyers", Henry VI, William Shakespeare.
This classic line is often quoted in the context of support for the notion of the filing of too many frivolous lawsuits and the need to rid America of the lawyers who are responsible for such outrage. Yet, William Shakespeare's famous line was intended to convey the notion that without lawyers there would be anarchy and a revolution more easily brought about. So too, without lawyers to advocate in court on behalf the rights of the injured, the abrogation of these rights is more easily brought about. Industry groups who lobby for castigation of attorney's fees are certainly aware of the fact that without the ability of worker's to hire a lawyer then their wrongful denial of benefits can go unchecked. Of course, if the worker's rights to benefits are stripped, the cost of doing business goes down.
It is a sad comment that American industry is so willing to pay $16,000 to its lawyers to unsuccessfully avoid the responsibility to pay benefits legally due, yet expresses outrage that the claimant's lawyer who was only paid because of his success would be likewise compensated. Nonetheless, here is what leaders of industry groups are quoted as saying about the decision:
The National Federation of Independent Business/Florida and Florida Chamber of Commerce both expressed disappointment with Thursday's ruling.
“Workers’ compensation rates have dropped over 50 percent in the last five years and were scheduled to continue to decrease,” NFIB/Florida Executive Director Bill Herrle said. “However, this Supreme Court ruling jeopardizes the low rates, which is devastating for small business owners. Losing the attorneys’ fee schedule will cost the small business community hundreds of millions of dollars at a time when they can least afford it.”
David Daniel, Florida Chamber of Commerce vice president of government affairs, called the ruling "just another example of plaintiffs' trial lawyers attempting to bleed more attorney fees from Florida employers using our state's workers' compensation system."
Orlando Business Journal, Tuesday, October 28, 2008.
The Florida Supreme Court has continued to perform its duty to act as an equal and independent arm of government and has used its interpretive skills and remained vigilant in its obligation to protect citizen's rights to access to the courts. At least for now, efforts to kill all of the claimant worker's compensation lawyers in Florida have failed.
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