The Florida First District Court of Appeals is set to hear oral arguments in the attorney fee case of Kaufmann v Community Inclusions and Guaranty Insuranceon January 13, 2011.  The case has been on appeal since July 30, 2010 is known around the state as the “Emma Murray II” case.

Just as in Emma Murray v. Mariner Health and  Ace USA, 994 So.2d 1051 (Fla.2008),  a litany of Amicus Briefs have been filed by industry groups weighing in with their opposing or supporting arguments regarding the statutory attorney fee provisions and constitutionality of Section 440.34 (3) (a-d) Fla. Stat (2003).

Also just like Emma Murray v Mariner Health, this appeal was filed by attorney Brian O. Sutter.

The case involves Jennifer Kaufmann who was injured on July 23, 2009 while attempting to transfer a patient into a recliner chair.  She fell, injuring her low back.  After investigation, the claim was subsequently denied by the carrier.  At trial, the claim was found to be compensable and temporary total benefits in the amount of $3417.03 were ordered.

The JCC Order awarding attorney fees points out that both parties did not dispute the amount of benefits owed.   And because the Florida Legislature specifically removed the word “reasonable” from Subsections (1) and (3) of Section 440.34, Fla. Stat. on July 1, 2009, only a statutory formula could be awarded to Mr. Sutter in the amount of $684.41 which turned out to an “hourly fee” of $6.84 based on the number of hours spent pursuing benefits.

In reading the Order,  the issue of constitutionality was addressed at trial and even though JCC’s have no authority to decide the constitutionality of issues, Judge Spangler allowed testimony to be presented in order to lay the groundwork for the appellate arguments.   In fact, if one reads only the footnotes of the Order, the JCC’s sentiment is clear on this issue of fees.  While constrained to follow the “legislatively mandated scheme”, he questions the wisdom of a system that allows a defense attorney to be paid $14,720 by the carrier to defend the petition and award the prevailing attorney only $647.47 – especially when testimony presented at trial supports a reasonable fee would have been $25,075?