Attorney's Fees in Florida Workers' Compensation
Luke Fynn
A BRIEF SYNOPSIS (2003 – present)
The issue of payment of attorney’s fees to Claimant’s counsel is necessarily a two part inquiry. First, when is a Claimant’s counsel entitled to attorney’s fees, and secondly, how to calculate the amount due. The following addresses the above inquiries since the statutory language was amended in 2003, and the changes resulting from the judicial interpretation of the statute in 2009.
In order to discuss how attorneys’ fees are calculated, it must first be determined when in fact attorneys’ fees are due. Legislative changes to section 440.34(2) effective on 7/1/97 dictate that a Claimant’s counsel is due a fee only on benefits the lawyer is responsible for securing. A benefit secured means benefits which are obtained by successfully prosecuting a claim, meaning those benefits secured because of the efforts of the lawyer and not necessarily taken to trial. Notably, if the Claimant’s attorney succeeds in securing alternative benefits which are equal in amount to benefits the Claimant was already receiving, then no fee is due as was address in Crawford & Co. v. Nash, 754 So. 2d 145 (Fla. 1st DCA 2000).
Section 440.192(7) establishes that it is the filing of a Petition which establishes an attorney’s right to claim fees for benefits secured. Without a Petition pending before the JCC, no fees will be due to Claimant’s counsel. In addition, upon the filing of a Petition, attorney’s fees shall not attach until 30 days after the date the Carrier or Employer receives the Petition. Therefore, under the current law section 440.34(3)(d), if all benefits are timely provided within 30 days of the filing of a Petition, no fees are due to Claimant’s counsel.
In terms of a benefit being secured, it has been ruled that a benefit can not be secured unless continuation of the benefit was actually at risk, as held in UNC Aviation Servs. v. Horne, 957 So. 2d 698 (Fla. 1st DCA 2007). A benefit can include compensation benefits, medical devices, or even medial evaluations. The law limits the value of fees from including future medical care beyond five years from the date the Petition for Benefits is filed, and not when the Claimant’s lawyer files for attorney’s fees (see Riviera Beach v. Deliso, 713 So. 2d 426 (Fla. 1st DCA 1997)). All future benefits secured should be reduced to their present value for purposes of quantifying any fees due. The rate used in calculating present value can be agreed upon by the parties, or established through evidence and expert testimony on a case by case basis (Rolle v. Metropolitan Dade County, 642 So. 2d 100 (Fla. 1st DCA 1994).
Section 440.34 addresses how attorneys’ fees are to be calculated. The legislative branch made changes to this statutory language in 2003 which provided a fee schedule for attorney’s fees to be paid as a formula based on a percentage of the benefits secured by the Claimant’s counsel.
Between 10/1/03 and 7/1/09, section 440.34 seemed to limit attorney fees to the statutory calculation of 20% of the value of the first $5,000.00 in benefits obtained, 15% of the value of the second $5,000.00 in benefits obtained, 10% of the remaining value of benefits obtained over the first 10 years, and 5% of the remaining value of benefits obtained after the first 10 years. However, section 440.34(3), Florida Statutes, also stated that, in certain circumstances, a claimant “shall be entitled to recover a reasonable attorney’s fee from a carrier or employer.” The meaning of “reasonable” was challenged in the case of Emma Murray v. Mariner Health, 994 So.2d 1051 (Fla. 2008). In the Emma Murray decision, the Florida Supreme Court ruled that “reasonable” meant that if a fee charged at an hourly rate for the work performed by the attorney was more reasonable than the fee calculated pursuant to the statutory scheme noted above, then the hourly fee could be awarded.
After the Emma Murray decision was issued, the Legislature responded by amending section 440.34(3) to remove the “reasonable” language from the statute. The statutory amendment became effective on 7/1/09.
In sum, for dates of accident between 10/1/03 and 7/1/09, an attorney’s fee can be awarded based upon the statutory calculation of 20/15/10% of the value of benefits obtained, or based upon an hourly fee for the services performed by the attorney, whichever is deemed reasonable by the court. For dates of accident after 7/1/09, only the statutory calculation of 20/15/10% of the value of benefits obtained can be used to award a fee.
- Kim Fernandez, Luke Fynn