Monday, May 2, 2016

Florida Supreme Court Workers' Comp Fee Ruling Signals Unease With Law

Noreen Marcus, Daily Business Review
May 2, 2016

The Florida Supreme Court ruled for workers in an opinion that ensures they can hire lawyers when they battle their employers over injury benefits. In a 5-2 ruling Thursday, the court decided a statute that standardizes fees for claimant lawyers in workers' compensation cases fails the due process test. The majority opinion in Castellanos v. Next Door rejects an hourly fee of $1.53. Writing for the majority, Justice Barbara Pariente took aim at how the law bars judges from even addressing whether some fees are unacceptably low. It decrees that all fees based on the formula are fair.

"The statute prevents every injured worker from challenging the reasonableness of the fee award in his or her individual case — an issue of serious constitutional concern given the critical importance, as a key feature of the workers' compensation statutory scheme, of a reasonable attorney's fee for the successful claimant," she wrote.

Business interests were apoplectic.

"Without immediate legislative action, this decision will result in a devastating rise in workers' compensation insurance rates that will adversely affect our economy, job growth and small businesses," Bill Herrle, executive director of the National Federation of Independent Business/Florida, said in a statement.

Joel Perwin found the decision significant for an entirely different reason. "It gets rid of a statutory prohibition that was draconian and ridiculous," said the veteran Miami appellate lawyer, who is not involved in the Castellanos case.

"Now at least the playing field has been leveled. Balance and fairness have been restored," said Tampa lawyer Michael Winer, co-counsel for Castellanos.

"It's a great day for the plaintiffs bar, but more importantly it's a great day for injured workers," he said. "Now they have the ability to have their rights vindicated."

The interests that Herrle represents dodged a much more dangerous bullet. The court released a two-paragraph unanimous decision Thursday that discharged jurisdiction in Stahl v. Hialeah Hospital.

That case disparaged the entire 75-year-old workers' comp system on the basis that legislative tinkering has left it nearly ineffectual for employees. The First District Court of Appeal upheld the law's constitutionality, providing high court entree for workers' comp lawyer Mark Zientz.

The outcome announced Thursday in the hospital case was signaled during Supreme Court arguments April 6. Several justices wondered how the sparse record in the Stahl litigation could support a sweeping constitutional ruling.

And Justice Fred Lewis referred to the question of the court's jurisdiction to hear the case as "the elephant in the room." Now the elephant has trumpeted defeat for Stahl.

Still, the Castellanos opinion suggests the majority processed Zientz's message. Footnote 3 lists "just a few of the ways in which the workers' compensation system has become increasingly complex and difficult, if not impossible, for an injured worker to successfully navigate without the assistance of an attorney."

The footnote describes seven legislative changes to Florida Statutes Chapter 440 including the addition of "an extensive fraud and penalty provision" and "the elimination of the provision that the workers' compensation law be liberally construed in favor of the injured worker."

Both Winer and Perwin pointed to Footnote 3 as indicating a majority of justices agree with Zientz that workers have given away too many rights in exchange for too few benefits.

"The court is acutely aware of the fact that the Legislature has been cutting away at benefits for quite some time now," Winer said.

Perwin added, "I see Footnote 3 as at least recognition that it may not be just this provision that is undermining the original purpose and benefits of the workers' comp law."

Read full article, click here.

Thursday, April 28, 2016

Court calls $1.53 an hour lawyer fee unconstitutional, 'absurd' - Comments from Michael Winer

In its ruling, the court said the fee limits are unconstitutional because they resulted in a system where people can't find lawyers to represent them at unreasonably low rates. The law based lawyer fees on a percentage of the amount of money won in a claim, so if an injured worker had a $5,000 claim, lawyers knew that they could receive no more than $1,000.

So while the $5,000 could be important to someone earning $10 an hour and trying to pay bills, lawyers don't want to take cases where their fee is driving down to the equivalent of $10 an hour or less, said Michael Winer, who chairs the Workers Compensation Section of The Florida Bar.

"People who were injured on the job and stuck in the workers' comp system lost the ability to pay lawyers," he said. "I have had very difficult discussions with a lot of injured workers who had valid claims, and said, `Look, the juice here, unfortunately, just isn't worth the squeeze. I might have to spend 50 to 70 hours on your case."'

It also led to insurance companies denying legitimate claims knowing that injured workers wouldn't be able to fight the decision, Winer said.

The Florida Supreme Court struck down a law limiting lawyer fees in workers' compensation cases on Thursday, saying the $1.53 hourly rate a lawyer was paid to help an injured worker was "absurdly low."

The 5-2 decision is expected to help injured workers who have struggled to get lawyers to help them because the fee system created by then-Gov. Jeb Bush in 2003 makes their cases not worth representing. The case involved a man who successfully sued a Miami door manufacturer over an on-the-job injury. His lawyer was paid $164.54 for more than 100 hours of work.

But the ruling is a blow to business groups that have long argued legal fees drive up the costs of workers-compensation insurance. The fee issue will bounce back to the Legislature, where it could spark a fierce debate.

"They deny the claim, and if the claimant can't get a lawyer, he goes away and he makes it somebody else's problem. That problem might be Medicaid's problem, that problem might be a county hospital that never gets reimbursed," Winer said. "It's the grand passing of the buck."

Justice Barbara Pariente, writing for the court's majority, said the 2009 law is a violation of due-process rights under the Florida Constitution and the U.S. Constitution because it prevents challenges to the "reasonableness" of attorney's fees awarded in workers-compensation cases. "This case, and many others like it, demonstrate that despite the stated goal, oftentimes the worker experiences delay and resistance either by the employer or the [insurance] carrier,'' wrote Pariente. "Without the likelihood of an adequate attorney's fee award, there is little disincentive for a carrier to deny benefits or to raise multiple defenses, as was done here." Read the full article, click here.

Friday, April 22, 2016

Court rejects legal restriction in workers' comp cases

Today was one of proudest moments as a lawyer. After years of fighting to overturn one of the most unfair laws on the books, we finally succeeded.

Today, in Martha Miles v. City of Edgewater, the 1st District Court of Appeal declared that section 440.34 is unconstitutional. This monumental decision paves the way for so many Floridians who are injured on the job, like Mrs. Miles, an injured police officer, to be able to secure legal representation to assist them in their Worker's Compensation claims.

The court held that, "We conclude that the statutory restrictions are unconstitutional, and that the proper remedy is to allow an injured worker and an attorney to enter into a fee agreement approved by the JCC, notwithstanding the statutory restrictions." A great day for fairness and justice. Thanks to our team: Geoff Bichler, Paolo Longo, the Fraternal Order of Police, Florida Workers Advocates, and so many others.

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