Unum Guilty of Fraud

Oct. 23, 2008

Florida Supreme Court Affirms Injured Worker’s Rights Attorneys to Receive “Reasonable Fees” in Workers’ Compensation Cases

Today, Thursday, October 23, in Emma Murray v. Mariner Health (Case No. SC07-244), the Florida Supreme Court addressed the issue of attorney’s fees payable by the employer/carrier to the claimant’s counsel in a Workers’

Compensation matter and concluded that in this circumstance the claimant is entitled to recover a “reasonable” attorney’s fee. The decision involved the interpretation of a statutory provision (§440.34, Fla. Stat.) that had been altered as part of the drastic changes to the Workers’ Compensation law enacted by the legislature in 2003. The Court reached its conclusion by applying rules of statutory construction to what it found to be an ambiguous statue. It did not address constitutional arguments that had been raised by the petitioner.

Section 440.34(3) calls for an award of “reasonable” attorney’s fees to a claimant who successfully pursues a claim for medical benefits only, prevails in a case where the insurance carrier acted in bad faith, or prevails in a case where the employer denied that a compensable injury even occurred. Section 440.34(1) contains a strict schedule, under which attorney’s fees payable to a claimant’s attorney are very limited. Lower court decisions had applied this schedule to the subsection (3) situations requiring “reasonable” fees to be paid by carriers. As a consequence of the resulting severe limitation on awardable fees, claimants often found themselves encountering great difficulty in securing legal counsel to pursue desperately needed Workers’ Compensation benefits.

This case provides an excellent example of impact and the grossly tilted playing field that had been created under the earlier misinterpretations of the statute. Here, the claimant prevailed at trial after a hard-fought battle. Substantial time and effort was expended by the claimant’s counsel (Brian Sutter, Esq., Port Charlotte, Florida) to secure desperately needed benefits for the claimant, but, when the statutory fee schedule was applied to determine the fee award against the carrier, Mr. Sutter received a fee equivalent to approximately $8.00 an hour for his 80 hours of work.

Pointing out that the carrier, on whom the statute imposes absolutely no similar limitations, paid their attorneys for 135 hours at $125 per hour to defend the case, the Supreme Court found the fee awarded to the claimant’s attorney was inadequate and therefore not “reasonable”, as required by the statute.

The Court concluded that the standard articulated in Lee Engineering & Construction Co. v. Fellows, 209 So. 2d 454 (Fla. 1968) for determination of attorney’s fees will control the reasonable and necessary fees awardable under the provisions of §440.34(3). The opinion in the 5-0 decision was authored by Justice Wells, and there was no participation by either Justices Bell or Cantero, both of whom recently left the Court, or by their recently appointed replacements, Justices Canady and Polston.