SSH is pleased to announce that, thanks to a new ruling by the Florida Supreme Court, our firm is now able to represent injured workers to assist them in obtaining benefits.
For the past several years, injured workers in the state of Florida have found it difficult to obtain competent legal representation in their worker’s compensation case because of the 2003 amendments to the Florida worker’s compensation statutes limiting carrier paid fees to claimant’s attorneys who successfully secured benefits on the claimant’s behalf.In Murray v. Mariner Health, a case challenging the statute, the Florida Supreme Court ruled that the statue was ambiguous and that the fee compensating the attorney at $8.11 per hour for securing benefits was unreasonable.
It didn’t take long for certain industry to attack the ruling.The following day Associated Industries of Florida, one of the largest insurance industries in the state of Florida, criticized the Court’s decision as a blow to Florida’s future economic prosperity.Read full article here. Even the Insurance Commissioner, Kevin McCarty, weighed in.He felt that the Florida Legislature will have to intervene to clarify its intent to limit attorneys’ fees in worker’s compensation cases.
Please call us if you need assistance with your worker’s compensation claim.
Some employers will offer a severance package providing for salary or medical benefit continuation, if you sign a general release, releasing them from all claims.If you decide to take such a package, you must be careful not to release your ability to apply for or continue to receive disability benefits under your company’s long-term disability plan.Remember, long term disability insurance only covers you if you become disabled while employed.If your employment is terminated or if you resign and then apply for disability benefits, it may be difficult to prove that you became disabled before your employment ended. If you are considering filing a disability insurance claim you should consult with an experienced ERISA lawyer before you leave your job. If you need more information, please visit our website.
Unfortunately, you may need to get another doctor, or at the very least a second opinion.Your physician plays a vital role in your disability claim.Not only must his records provide objective evidence of your illness and impairment, he must also be willing to cooperate with the insurance carriers by completing forms and participating in telephone conferences.Therefore, if you are considering leaving your job to file a claim for disability insurance benefits, you should make certain that your doctor fully understands why you believe you cannot perform your occupation. If your doctor still refuses to cooperate, consider obtaining a second opinion.
In what was surely the most widely anticipated workers’ compensation case in several years, the Florida Supreme Court in Emma Murray v. Mariner, a 5-0 ruling, invalidated the 2003 amendment to §440.34. That amendment attempted to limit carrier paid claimant’s attorney’s fees to a strict percentage of the benefits secured.
Declining to address the constitutional challenges, the court concluded that the statute was ambiguous. The ambiguity arose between subsection (1) which forbade the JCC from awarding attorney’s fees in any amount other than a percentage of the benefits secured by the attorney, and subsection (3) which requires the JCC to award “a reasonable attorney’s fee,” but setting no criteria for how to determine a reasonable fee. The Court said that “Inadequate fees and excessive fees are not reasonable attorney’s fees.” Therefore, the Supreme Court held that when awarding a carrier-paid claimant’s attorney’s fee under the statute, the court must use the factors enumerated in rule 4-1.5(b) of the Rules Regulating the Florida Bar.The factors in the rule are the same as the ones deleted from the 2003 amendment to §440.34.They include the time and labor involved, the complexity of the case and the skill required to perform the necessary legal services.
The ruling therefore returns the law governing the award of carrier-paid claimant’s attorney’s fees to its pre-2003 state. That is, the JCC will award the claimant’s fees using the statutory percentages unless he determines that the resulting fee would be “manifestly unfair.” In that event, he will apply the factors found in rule 4-1.5(b) to arrive at a reasonable fee.
Often when you hear the term insurance fraud, the inclination is to believe that it is an individual who is defrauding an insurance company or a lazy dishonest individual who is trying to get something they are not entitled to. However, in an ironic twist of fate, a federal jury in Boston found that Unum, the nation’s largest disability insurer, had committed fraud against the Government by requiring customers to apply for Social Security benefits even though it knew they were not eligible. Read entire article here.
By forcing ineligible people to apply for Social security disability, UNUM and other long term disability insurance carriers caused a clog in the system, delaying the processing of truly legitimate claims. Also, UNUM got to increase its profits by reducing its claim reserves.
This verdict is great news for those disabled individuals who are seeking benefits. By cutting down on the amount of ineligible claims that are being processed, it should ease the backlog and move those legitimate claims along much quicker.
Statute of limitation is the period of time in which an individual must file a suit in court.Failure to file within the specified time may result in being forever barred from pursuing their claim.Unfortunately Congress did not specify a statute of limitation in the ERISA statute.Although ERISA is governed by Federal law, the courts have uniformly allowed the use of the most analogous state statute of limitation, unless plan documents specify a shorter period of time.
While I have seen statute of limitation as short as 1 year, there is a 1998 case where a Florida court held that a 90 day statute of limitation from the date of the plan’s final review of the claim was reasonable. (SeeMedicalCenter v. Waffle House System Employee Benefit Plan).If you have an ERISA long term disability claim, it is important to review your policy early and often.
Most individuals understand that a Plaintiff who wins his or her lawsuit will be awarded attorney’s fees and costs incurred in prosecuting their claim.Unfortunately, attorney’s fees and costs are discretionary under ERISA.Another anomaly in ERISA law is that attorney’s fees and costs may be awarded against either a losing plaintiff or defendant.That’s right.A losing plaintiff may have to pay the insurance company’s attorney’s fees and cost.
Some consider it only fair that the loser pays the fee, no matter which side.Others see it as having a chilling effect on the prosecution of the claim, since an individual may forego pursuing an otherwise valid claim out of fear that they would be saddled with the other side’s attorney’s fees and costs should they not prevail.There are several factors that the courts take into account to determine if an award is appropriate.Therefore, an ERISA claimant with a valid claim should not be deterred simply by the possibility of an award of fees against them.
Florida Supreme Court Affirms Injured Worker’s Rights Attorneys to Receive “Reasonable Fees” in Workers’ Compensation Cases
Today, Thursday, October 23, in Emma Murray v. Mariner Health (Case No.
SC07-244), the Florida Supreme Court addressed the issue of attorney’s fees payable by the employer/carrier to the claimant’s counsel in a Workers’
Compensation matter and concluded that in this circumstance the claimant is entitled to recover a “reasonable” attorney’s fee. The decision involved the interpretation of a statutory provision (§440.34, Fla. Stat.) that had been altered as part of the drastic changes to the Workers’ Compensation law enacted by the legislature in 2003. The Court reached its conclusion by applying rules of statutory construction to what it found to be an ambiguous statue. It did not address constitutional arguments that had been raised by the petitioner.
Section 440.34(3) calls for an award of “reasonable” attorney’s fees to a claimant who successfully pursues a claim for medical benefits only, prevails in a case where the insurance carrier acted in bad faith, or prevails in a case where the employer denied that a compensable injury even occurred. Section 440.34(1) contains a strict schedule, under which attorney’s fees payable to a claimant’s attorney are very limited. Lower court decisions had applied this schedule to the subsection (3) situations requiring “reasonable” fees to be paid by carriers. As a consequence of the resulting severe limitation on awardable fees, claimants often found themselves encountering great difficulty in securing legal counsel to pursue desperately needed Workers’ Compensation benefits.
This case provides an excellent example of impact and the grossly tilted playing field that had been created under the earlier misinterpretations of the statute. Here, the claimant prevailed at trial after a hard-fought battle. Substantial time and effort was expended by the claimant’s counsel (Brian Sutter, Esq., Port Charlotte, Florida) to secure desperately needed benefits for the claimant, but, when the statutory fee schedule was applied to determine the fee award against the carrier, Mr. Sutter received a fee equivalent to approximately $8.00 an hour for his 80 hours of work.
Pointing out that the carrier, on whom the statute imposes absolutely no similar limitations, paid their attorneys for 135 hours at $125 per hour to defend the case, the Supreme Court found the fee awarded to the claimant’s attorney was inadequate and therefore not “reasonable”, as required by the statute.
The Court concluded that the standard articulated in Lee Engineering & Construction Co. v. Fellows, 209 So. 2d 454 (Fla. 1968) for determination of attorney’s fees will control the reasonable and necessary fees awardable under the provisions of §440.34(3). The opinion in the 5-0 decision was authored by Justice Wells, and there was no participation by either Justices Bell or Cantero, both of whom recently left the Court, or by their recently appointed replacements, Justices Canady and Polston.
Many of my clients are surprised to learn that they not get a jury trial in an ERISA disability claim.Congress did not offer this level of protection to individuals injured by their group disability insurance company.Although they mandate a full and fair review, and although one can file suit should the insurance company deny their claim after review, make no mistake ~ this does not offer the same protection as that from an impartial jury.
First, the parties charged with assuring a full and fair review are not impartial.They, after all, work for the insurance company.At the very least, there is a conflict of interest.Worst case scenario ~ they have a vested interest in denying your claim.
Next, the oversight afforded by the judicial system is not without limitations.Where the insurance company reserves the discretion to interpret the policy and pay benefits, the court’s role is merely to see if they abused the discretion not to “try” the case.
Finally, you won’t be able to testify at the hearing, nor will you be able to bring in witnesses to testify on your behalf.
Know that you are not on a level playing field with the insurance company.Since you will not be able to testify and present witnesses you should make sure that all of the possible evidence for consideration is in the claim file before the final denial.That will be the evidence on which the Judge will rely on in deciding if the insurance carrier abused its discretion.
It’s a fact that most Americans are only a few paychecks away from financial disaster. Disability Income insurance offers some protection by protecting a portion of your income.Most disability plans will only cover up to about 2/3 of your gross income.However, I’ve seen some plans that cover only 40 % of your income. In an ERISA plan where the premium comes out of your paycheck, you’ll want to have your employer deduct the premium after taxes, or out of your net paycheck. The reason is that if you deduct the premium before taxes are taken out, when you have a claim, your benefit will be subject to income taxes. As you can see, if you had to pay income taxes on 40% of your income, you would be left with almost no coverage at all.For most, it is far better to pay a small amount of tax on the premium rather than having to pay full income taxes on the benefit at a time when you need all the money you can get.