By Claudeth Henry, R.N. J.D.
In what was surely the most widely anticipated workers’ compensation case in several years, the Florida Supreme Court in Emma Murray v. Mariner, a 5-0 ruling, invalidated the 2003 amendment (PDF) to §440.34. That amendment attempted to limit carrier paid claimant’s attorney’s fees to a strict percentage of the benefits secured.
Declining to address the constitutional challenges, the court concluded that the statute was ambiguous. The ambiguity arose between subsection (1) which forbade the JCC from awarding attorney’s fees in any amount other than a percentage of the benefits secured by the attorney, and subsection (3) which requires the JCC to award “a reasonable attorney’s fee,” but setting no criteria for how to determine a reasonable fee. The Court said that “Inadequate fees and excessive fees are not reasonable attorney’s fees.” Therefore, the Supreme Court held that when awarding a carrier-paid claimant’s attorney’s fee under the statute, the court must use the factors enumerated in rule 4-1.5(b) of the Rules Regulating the Florida Bar. The factors in the rule are the same as the ones deleted from the 2003 amendment to §440.34. They include the time and labor involved, the complexity of the case and the skill required to perform the necessary legal services.
The ruling therefore returns the law governing the award of carrier-paid claimant’s attorney’s fees to its pre-2003 state. That is, the JCC will award the claimant’s fees using the statutory percentages unless he determines that the resulting fee would be “manifestly unfair.” In that event, he will apply the factors found in rule 4-1.5(b) to arrive at a reasonable fee.
