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Workers' comp ruling may affect lowered rates

By Asjylyn Loder, Times Staff Writer
In print: Friday, October 24, 2008

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The Florida Supreme Court on Thursday ruled that a lawyer representing an injured worker is entitled to "reasonable" fees, setting the stage for another bruising legislative battle over the Florida law that ensures the rights of injured workers.

The decision reinterprets a controversial 2003 reform of the state's workers' compensation law that capped some lawyers fees.

Attorneys that represent injured workers hailed the case as a success, but industry groups warned that it will drive up the cost of doing business in Florida.

"It certainly is a favorable opinion for injured workers and their attorneys," said Greg Lower, a Jacksonville attorney with Fowler White Boggs Banker, who was not involved in the case. "It was not a favorable opinion for industry."

Industry groups lobbied hard for the 2003 reform in an attempt to drive down the cost of workers' compensation insurance. At the time, Florida's businesses paid some of the highest rates in the nation. Since the reform was enacted, rates have fallen nearly 60 percent and were slated to fall still further next year. But the savings came at the expense of injured workers, say labor advocates and attorneys that represent injured workers.

"Having clients not in court results in decreased costs. How can it not?" said Leslie Riviere, a workers' compensation attorney in Tampa who was not involved in the case. "But it also results in injured workers not receiving compensation for medical bills and lost wages that they'd otherwise be entitled to."

The Florida Chamber of Commerce signaled that it will lobby the Legislature to revise the law.

"This is just another example of plaintiffs' trial lawyers attempting to bleed more attorney fees from Florida employers using our state's workers' compensation system," read a statement from David Daniel, vice president of government affairs with the Florida Chamber of Commerce.

The Supreme Court ruled 5-0 in the case, Emma Murray vs. Mariner Health Care, which stemmed from an injury suffered five years ago by Murray. A nurse in her late 50s, she was hurt hoisting a patient at the nursing home where she worked. Her employer's insurance carrier denied her claim, chalking up her injury to a pre-existing condition.

Murray hired Port Charlotte lawyer Brian Sutter and won $3,244 in back wages and medical costs. Since Mariner Health Care lost the suit, it also had to pay Murray's court costs, but the 2003 law had imposed a strict formula on how much a worker's attorney could be paid. Murray's attorney was entitled to $648 for the 80 hours he spent preparing her case — about $8 an hour. Mariner Health Care paid its own lawyers about $16,000.

Sutter argued that the inequity — letting the employer pay its lawyer $150 an hour, while the injured worker's lawyer was limited to $8 an hour — left the worker with an unconstitutional disadvantage. The law gives insurers incentive to deny legitimate claims like Murray's, since few lawyers will take on complex and expensive cases for such meager fees, Sutter said this year.

The Supreme Court sidestepped the constitutional issue, and ruled Thursday that the 2003 law was unclear since it does contain a reference to "reasonable" fees. The court ruled that the ambiguity should be decided in favor of Murray's attorney and ordered Mariner to pay fees of about $16,000, which amounts to close to $200 an hour.

Kevin McCarty, Florida's insurance commissioner, promised a quick review of the decision to determine the impact on the cost of workers' compensation insurance.

Rates were slated for another drop this year, and it's unclear what impact the decision will have. Adam Babington, legislative counsel for the Florida Chamber of Commerce, said he expects more information on insurance rates in the next few weeks.

Asjylyn Loder can be reached at aloder@sptimes.com or (813) 225-3117.