Disability Law

Four More Briefs Filed in Suppport of Claimant in Murray v. Mariners Health

By David A. McCranie, Esq.

Four More briefs have been filed in the Florida Supreme Court in support of the claimant's challenge to the constitutionality of the 2003 amendment to §440.34, Fla. Stat., in the case of Murray v. Mariners Health.

The first, filed by the Workers' Compensation Section of the Florida Bar, doesn't add much to the discussion.  It simply suggests that the 2003 amendment is unconstitutional because it restricts access to courts.  You can read the brief here.

The second, filed by the Florida Professional Firefighters, Inc., essentially adopts the "due process" argument set out in Point III of Murray's Initial Brief, which I wrote about here.   The argument is that by restricting the amount of a "reasonable fee" to a percentage of the benefits secured by the attorney, the amendment creates an unconstitutional "irrebuttable presumption."  The brief, which you can read here,  also contains an interesting discussion of the history of workers' compensation laws in general and the Florida Workers' Compensation Law (Ch. 440, Fla. Stat.) in particular.

The third, filed by the Florida Police Benevolent Association, takes a slightly different approach.  The brief, which you can read here, alleges that law enforcement officers who are beneficiaries of the "heart-lung bill" (§112.18, Fla. Stat.) are in fact unable to take advantage of this act of legislative largess because they are unable to find competent counsel willing to assist them when the amount of attorney's fees which can be awarded are restricted to a percentage of benefits secured.  As an example, the attorney authoring the brief cites a case from his own firm, Weimer v. City of Kissimmee, OJCC No. 06-021829WJC.  In that case, the attorney's firm had asked the JCC to approve an attorney's fee retainer agreement wherein the claimant agreed to pay the law firm an hourly fee rather than having the amount of the fee limited to a percentage of benefits secured.  The JCC refused to approve the agreement in this order (worth reading), and as a result the law firm withdrew from representing the claimant further.  As a result, says the FPBA, the 2003 amendment is unconstitutional because it impairs the right of the claimant to freely contract with an attorney of his choosing. (Parenthetically, although the law firm withdrew from representing the claimant before the JCC, the firm has filed a petition for writ of certiorari, currently pending before the First District Court of Appeal in Case No. 1D07-4549, which challenges the order refusing to approve the retainer agreement.

The fourth, filed by an individual claimant, David Singleton (Singleton v. Seminole County School Board, OJCC No. 07-010864WJC), continues that theme and alleges that he also has been unable to retain counsel of his choosing because of the attorney's fee limitations.  Specifically, Singleton filed this petition for leave to retain the attorney of his choice based upon his agreement to pay the attorney an hourly fee, but in this order (worth reading) the JCC declined to approve the agreement.  (As with Weimer, the JCC's order refusing to approve Singleton's retainer agreement is the subject of a petition for writ of certiorari currently pending before the First District Court of Appeal.  See Case No. 1D07-5349).  Singleton argues in his Murray brief that the 2003 amendment impairs his constitutional right to contract with the attorney of his choice.  He also argues that the amendment denies him the right to counsel, access to courts, and equal protection.  You can read Singleton's brief here.

Full post as published by Florida Workers’ Compensation Law Blog on January 20, 2008 (boomark / email).