Is state law limiting workers compensation attorney fees constitutional? Florida Supreme Court may get issue

Apr 22, 2011

The following article was published in the Palm Beach Post on April 22, 2011:

Is State Law Limiting Workers Comp Attorney Fees Constitutional? Fla. Supreme Court May Get Issue

By Jim Saunders

The long-running fight about attorneys’ fees in workers-compensation cases could head back to the Florida Supreme Court — after legal fees in a Port Charlotte case amounted to $6.84 an hour.

Attorneys for a woman who suffered a back injury while working as a caregiver asked the Supreme Court this month to rule on the constitutionality of a state law that places strict limits on fees.

Business groups credit the fee limits with helping drive down insurance rates after being included in a 2003 rewrite of workers-compensation laws. But opponents have long argued that the restrictions make it harder for injured workers to hire attorneys and get needed benefits.

The 1st District Court of Appeal in March upheld limits in the Port Charlotte case. But even business groups have anticipated that the fee issue could eventually reach the Supreme Court.

A 2008 Supreme Court decision invalidated the fee schedule, but lawmakers made changes and imposed it again in 2009. That 2008 ruling was not on constitutional grounds.

In a brief to the Supreme Court, attorneys for the injured Port Charlotte worker, Jennifer Kauffman, said the fee limits “may severely impair, if not eliminate, the ability of claimants to obtain the assistance of counsel.’’

But Tamela Perdue, general counsel of Associated Industries of Florida, which lobbied for the law and filed a brief in the 1st District Court of Appeal, said the fee limits have not led to the end of workers-compensation litigation.

“I really think that the constitutional arguments will still be rejected by the court,’’ Perdue said Friday.

The law bases attorneys’ fees on the amount of benefits that are awarded to an injured worker. Fees are 20 percent of the first $5,000 in benefits; 15 percent of the next $5,000 in benefits; and either 10 percent or 5 percent of additional benefits, depending on the length of time involved.

Such fee limits do not apply to lawyers who represent employers or their insurance companies.

In the Port Charlotte case, a judge ruled that Kauffman should receive $3,417 in benefits after a dispute with her employer and its insurance company.

Kauffman’s lawyers reported working 100 hours on the case, but the fee limits restricted the amount they could be paid to $684 — or $6.84 an hour. While the judge in the case awarded that amount, he also wrote that reasonable fees would be $250 an hour, or $25,000.

One of Kauffman’s lawyers, Brian Sutter, also was involved in the 2008 case in which the Supreme Court invalidated the fee limits.

It remains unclear whether the Supreme Court will agree to take the case

But in the brief, Kauffman’s attorneys raise a number of constitutional issues, including whether the limits have such an effect that they infringe on the rights of injured workers to have access to the courts.

The trickiness of the issues, however, was evident earlier this year when a three-judge panel of the 1st District Court of Appeal heard oral arguments.

Judge Brad Thomas, for example, contrasted the attorneys’ fees with the $7.25 minimum wage.

Chief Judge Robert Benton, meanwhile, pointed out that Kauffman had found lawyers to take her case. “How has she been injured (by the fee limits)?’’ Benton asked.

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