Like Lazarus, anti-Emma Murray bill rose from the ashes and passed

Saturday, May 9, 2009 | 0

By Michael Rabinowitz

Making me eat my own words, the Florida Legislature reconciled the two versions of the anti-Emma Murray bill and decided to go with the much simpler House version, HB 903, which simply removes the word "reasonable" from section 440.34.  As everyone knows, the state Supreme Court found that the 10/1/03 changes to 440.34 created a statutory ambiguity and this bill (now potentially the law) removes that ambiguity.

How did the House version pass when it looked like on May 1 - the last day of the legislative session - neither the House or the Senate could agree on what version to pass?  Well, it looks like some form of horse trading occurred in which the sides traded votes for a property insurance bill.  This, of course, was done at the last minute, at 5:05 p.m. that Friday.

The next step is whether Gov. Crist is going to veto the bill.  However, if he does nothing then the bill automatically becomes a law, he need not affirmatively sign the bill for that to occur.  The effective date of the legislative changes would be July 1, 2009.  So Employer/Carrier paid hourly fees would still be in effect for any date of accident before June 30.

What does this mean for Employer/Carriers?  Basically, we are back to the law before Emma Murray and we are back to having a significant advantage over Claimants.  At least over Claimants with low-value claims.  The statutory fee schedule can still cost a pretty penny if the claim is for lumbar fusion surgery or permanent total disability benefits.  Other medical only claims, with a low value would risk the exposure of the maximum $1,500, one time alternative fee provision of s. 440.34(7). 

While I have only covered appellate decisions on this blog to date, I will attempt to include some lower court JCC fee opinions to get a glimpse of what the real world implications this legislation has on the practice.  I also would not be surprised for the trial attorneys to find another test case to bring before the Supreme Court, this time challenging the constitutionality of HB 903.

Even though the court refused to answer the question of constitutionality regarding capping attorney hourly fees, it doesn't mean they will necessarily rule this statutory amendment is unconstitutional.  In America, the standard is that a client pays his own attorney fees.  Only in statute can a judge force the opposing party to pay the plaintiff's attorney fees. 

Since the legislature "giveth" the fees in the first place, certainly they have the power to "taketh" them away.  


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Michael G. Rabinowitz is an an attorney at Banker Lopez Gassler in Tampa, Fla. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com/
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