Constitutional Issue with Florida Workers’ Compensation Statute

Tallahassee, FL (WorkersCompensation.com) - Traditionally, Constitutional issues are not implicated in workers’ compensation law. The Constitution neither guarantees anyone the right to be compensated for a workplace injury, nor requires employers to provide benefits to injured workers. However, in the 1967 Supreme Court case of United Mine Workers of America, District 12 v. Illinois State Bar Association, the Court found that the First Amendment guaranteed a union “the right to hire attorneys on a salary basis to assist its members in the assertion of their legal rights.”

In the case of Miles v. City of Edgewater Police Department, Florida’s First District Court of Appeals relied on United Mine Workers to issue a ruling that could potentially invalidate a section of the Florida workers’ compensation statute that deals with attorney payment. In the immediate aftermath of the decision, David Langham, Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims and Division of Administrative Hearings, wrote an in-depth analysis for WorkersCompensation.com that can be read here.

Briefly, the claimant, a police officer, alleged workplace injury based on the inhalation of methamphetamine. The claimant and her attorney entered into a fee agreement in which her union would agree to pay a flat fee of $1,500 with the claimant agreeing to pay the balance on her own. These agreements were memorialized in separate retainer agreements each of which acknowledged that the fee agreements were in contradiction to Florida law requiring workers’ compensation matters to be billed on a contingency basis. The reason for entering into this fee agreement was that Miles’ claim would require a substantial amount of time to be spent by the attorney in order for it to be proved, and no attorney would be willing to expend the necessary time for the mere possibility of a payment.

Under subsection 440.34(2) of the Florida Statute, the Judge of Compensation Claims (JCC), the court that approves any workers’ compensation attorney’s fees, must “consider only those benefits secured by the attorney” when awarding a fee. In other words, the claimant must be awarded benefits in order for the attorney to collect fees, which is the very definition of a contingency fee. Under subsection 440.105(3)(c), it’s actually a crime for an attorney to accept a fee that has not been approved by the JCC. The court held that “the two statutes operated as an unconstitutional infringement on the claimant’s right to hire an attorney.”

At first blush, the court’s holding appeared to render 440.105(3)(c) unconstitutional, which, as can be imagined, caused quite a stir among Florida workers’ compensation attorneys. The ruling also sparked a legislative response. “There are bills that would delete section 440.105(3) from the statute,” said Judge Langham in an email to WorkersCompensation.com. However, no consensus on these bills yet exists. “Some contend that it applies to more than attorneys and see potential for harm if it is completely stricken. Others feel that it is just for attorneys and striking it makes sense in light of the Court’s decision,” Langham continued. 

According to Langham, a large portion of the reason for this lack of consensus stems from the fact that “[t]here are a great number of potential arguments about Miles that I hear at various venues,” adding that, “I am not convinced that there is yet unanimous consent as to all that Miles stands for.” This view appears to be shared by the Florida Supreme court as it has not yet agreed to review this decision as would be typical of a case that invalidates a section of statute.

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