Disability Law

Claimant's Initial Brief filed in Murray v. Mariners Health

By David A. McCranie, Esq.

The claimant has filed her initial brief in the Florida Supreme Court in the case of Murray v. Mariners Health, the case where the Court has agreed to consider the constitutionality of the 2003 amendment to §440.34, Fla. Stat.  You can read a copy of the brief here.  Here's my summary:

• FACTS  AND PROCEEDINGS BEFORE THE JCC

Emma Murray was injured in an accident on 10/31/2003.  The employer/carrier contested the compensability of the accident, but after a hearing on the merits, the JCC rejected that position and awarded her TTD benefits totaling $1,763.86, out-of-pocket medical expenses totaling $1,092.57, interest in the amount of 352.78, and penalties in the amount of $35.00.

Murray's attorney thereafter filed a verified petition for attorney's fees in which he alleged that he had expended 84.4 hours in securing those benefits.  He alleged that a reasonable hourly rate for his services was $200.00 per hour. The attorney contended (1) that the 2003 amendment to §440.34 applies only to settlement agreements, (2) that a percentage fee based upon the value of the benefits secured by the attorney would be "manifestly unfair, and (3) that limiting the fee to the percentage amount would be an unconstitutional denial of equal protection, access to courts, and a violation of the separation of powers clauses of the state constitution. 

Murray's attorney testified at the fee hearing that limiting the attorney's fee to the statutory percentage as required by the 2003 amendment would not only result in a fee that is "manifestly unfair," it would have a chilling effect on the claimant's ability to secure competent counsel at all, since no attorney would take a case knowing that his hourly rate would be limited to $8.11.  Murray's attorney also presented the testimony of other local attorneys, representing both claimants and carriers, who concurred in that opinion.

The JCC found that under the former statute, he would have deviated upward from a percentage fee because the case was highly contingent and the issues involved were novel and difficult (including the fact that the employer/carrier asserted a "fraud" defense to the compensability of the claim). He further found that the claimant's attorney reasonably expended 80 hours in the prosecution of the claim, that $200.00 was a reasonable hourly rate for those services, and that a "reasonable" fee in this case under the former statute therefore would have been $16,000.00. 

Nevertheless, the JCC concluded that he was bound by the 2003 amendment to award only the percentage fee set forth in the statute, and he therefore awarded the claimant's attorney a fee in the anount of $648.84 [($1,763.86 + $1,092.57 + $352.78 + $35.00) x 20%].  Using the 80 hours which the JCC concluded were reasonably expended, application of the percentage fee formula in this case resulted in an effective hourly rate for the attorney of $8.11 ($648.84 ÷ 80).  He further concluded that he lacked jurisdiction to address the claimant's constitutional challenges to the amended statute.  (You can read the JCC's full order here).

(Cont'd in Part II)

Full post as published by Florida Workers’ Compensation Law Blog on December 18, 2007 (boomark / email).