The Wrongful Act Doctrine and Reasonable Attorney Fees

Saturday, September 8, 2007 | 0

By Mark Zientz

Recently a very wise lawyer and old friend who has practiced in workers' compensation for more years than I, (hardly seems possible) mentioned that there were not two but three ways a lawyer can become entitled to be paid a fee by someone other than the client.

It is well known that attorney fees can be collected from an adversary if allowed by statute or if pursuant to a contract. Workers' compensation claimants' fees when paid by the employer/carrier are pursuant to the statute (F.S. 440.34).

My friend mentioned "The Wrongful Act Doctrine."

Simply explained, envision three parties, A, B and C. A commits a wrongful act. As a result of the act, B is required to take legal action against C to correct the wrong. Think of it this way, A is the owner of a piece of property and A blocks off access to B's property. B is required to sue C, the county government to force A to reopen the access. B can collect his reasonable attorney fees from A, the wrongful actor.

Now let's change the labels.

A is the licensed adjuster for a carrier or third party administrator. B is injured while working for C, the insured employer. As a result of A's wrongful act which violates the insurance code and his arbitrary and capricious denial of obviously due compensation benefits, B is required to hire an attorney to file a claim against C.

It is possible that if the adjuster is specifically a target of the claim for fees, that the JCC can find the adjuster personally liable for a reasonable fee to correct the wrongful act.

I will be presenting this issue to a Judge of Compensation Claims in the near future on behalf of a client whose medical care was denied by an adjuster who had absolutely no evidence to support the denial.

In fact, two authorized doctors had requested the care and the adjuster testified that it was merely her personal belief that the condition for which care was requested was not related to the accident. No other investigation was done.

Stay tuned.

Mark Zientz is a board certified attorney in workers' compensation by the Florida Bar. His Web log can be viewed by visiting www.mzlaw.com.

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