Lundy vs. Four Season - The Other Side of Fees

Saturday, February 25, 2006 | 0

The upcoming case of Lundy vs. Four Seasons in Tallahassee is interesting. It is about the way claimant attorneys are allowed to be paid. This appellate case is probably the first test of the effects of SB50 regarding the outrageously low limits set on workers comp claimant attorney fees. It presents constitutional issues and it may be argued on that basis.

Mr. Lundy's attorney, Charles Williams, Esq., maintains that "limiting attorney's fees to a strict percentage will deny injured workers access to courts, deny due process, deny equal protection, deny the right to counsel, be an unreasonable and therefore unconstitutional replacement for common law rights, deny the right to contract, and deny him (Mr. Williams) the right to to work as a workers' compensation attorney."

About the case:

Mr. Lundy was on the 5th step of a ladder, washing an awning when water got in his eye. He stepped back and fell, injuring his neck, head and back.

He was injured October 7, 2003, 7 days after SB50 took effect. This bill basically caps attorney fees to $1500 and a percentage thereafter. You can read the bill's summary on the Voices website.

His attorney has not been able to get paid a fair and reasonable fee because of the limits set by SB50. The case going to the Appellate Court is about these fees.

From a well-known attorney:

"Basically, what you will be hearing (at the appeal) is the Appellant' s counsel arguing that the fee awarded the attorney for the work required to get benefits for the injured worker was manifestly unfair even though it followed the fee schedule in the 2003 act.

"The attorney will also argue that the statute still leaves open the right of the JCC to award a 'reasonable' fee. If the court is interested in constitutional issues, you will hear about separation of powers. That is the requirement that each branch of government stay in its own area. Lundy says the legislature, by putting arbitrary caps on fees is intruding on the power of the courts to regulate attorneys. It has long been accepted that the legislature can suggest what the fee should be, but it is up to the courts to have the final say.

"The 2003 act took that power away from the courts and made the legislative fee one that the courts could not raise or lower based upon all the factors that go into a fee, such as how hard of a time the insurance company gave the injured worker."

West Palm Beach JCC Judge Shelly Punancy's order in the Lundy case (which is being appealed - see below for the URL to her ruling) showed clearly how problematic the situation is. She notes that the law has a chilling effect on the ability of Claimants to be represented by an attorney, and that as a matter of law, she was prevented from awarding the requested attorney's fees, adding that she didn't think that $340 was a reasonable fee under the circumstances.

The going rate would have given Williams $6500. Attorneys on both sides had agreed on a compromise figure. Mr. Lundy's attorney filed for the agreed-on fee of $1700, but due to SB50, the judge was unable to grant it and had to instead award him $340, the maximum based on her reading of the statues. Therefore, for his work with Mr. Lundy, he ended up with an hourly fee rate of $13.08, less than what he pays his secretary.

Punancy wrote: "I find as a matter of law that this Court does not have the authority to award an attorney's fee in excess of twenty percent of the first $5000.00 of the amount of benefits secured, pursuant to FS440.34(1). If this accident had occurred prior to October 1, 2003, I would find that $340.00 is not a reasonable fee under the circumstances, and that the amount of the fee the parties have compromised upon is reasonable."

Judge Punancy, knowing the constitutional issues arising in this case, wrote the order specifically so that the constitutional issues would be clear and discernable on appeal. This order was signed Nov. 30, 2004.



Mary Bailey
President, VOICES, Inc.
Crs012001@cs.com
www.voicesflorida.com

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