A decision issued late last week has largely skated under the radar, but has the potential for another big impact in the world that is Florida workers’ compensation. Florida Judge Mark Massey issued a decision on August 25th, in the case Napoles v. Kendall Regional Medical Center, that will maintain the status quo in the state for the time being. However, the case is subject to review, and if overturned could have dramatic implications for payers in the state. This was a Worker’s Compensation Judge’s (JCC) trial level adjudication and thus can be considered more persuasive than it would be a controlling decision.
Once again, we find attorney fees front and center, as this decision was related to compensation paid to attorneys for handling an appeal. The attorneys representing the claimant, Mark Touby and Richard Sicking, were requesting remuneration of between $650 and $800 an hour for working on the case.
Although both are listed as claimant’s attorneys, Sicking was the attorney who worked on the appeal. Touby, his partner, represented him for the purposes of this hearing. I should also point out that Sicking is an attorney involved in both the Westphal and the Castellanos cases, so he has certainly been on a winning tear of late. It would appear his attempt to extend that streak has hit a roadblock for the moment, but as that famous saying goes, “it ain’t over till it’s over.” We are not yet fully down this road.
The case involves a decision entered on September 23, 2016 issuing a final compensation order awarding permanent total disability benefits to the claimant in the case, Marlene Napoles. The employer appealed the order to the First District Court of Appeal, which affirmed the award. The District Court also granted the claimant’s motion for appellate attorney’s fees, sending the case back to the original judge to determine the amount of fees due.
Everyone accepted the claimant attorney’s assertion that he worked 111.4 hours on the case. The issue was what the fair value for that work would be. As indicated, Mr. Sicking testified that he felt a rate of $650 to $800 would be reasonable. It is my understanding that that industry paid exactly $800 an hour for the defense in Castellanos, and so this argument may extend to the core of that particular case. The underlying conditions that brought Castellanos forth were the 2003 Florida reforms that severely limited what could be spent on an injured workers behalf while leaving open the amount that employers could spend fighting the claim.
Defense counsel in the case, H. George Kagan, maintained that a reasonable hourly rate range would be $350.00 to $375.00 per hour.
The interesting thing to me, as I read the judge’s decision (available here – worth the read), was the relative routine nature of the case at hand. Even Defense Counsel Kagan had acknowledged that if the judge found “extraordinarily positive factors to exist,” that a “reasonable fee could in no event exceed the range of $400.00 to $425.00 per hour.” Kagan, by the way, did not believe such conditions existed with this case. It turns out the judge didn’t think so, either.
In the end, Judge Massey rejected the claimant attorney requests, found that the case contained no extraordinary measures that would justify a higher hourly rate, and ruled that they would receive a paltry $375 per hour, or $41,775.
I don’t know about you, but I don’t know how I would live on $375 an hour. I don’t know, but I’m damn certain it would be better than how I’m living now.
All sarcasm aside, we have in this case the potential for another example of the pendulum that is workers’ compensation. We seem to have a very difficult time achieving equilibrium; finding the perfect center, in just about anything. We facilitate areas where extreme abuse can occur, and then we try to stamp out the abuse with extreme measures that facilitate commensurate exploitations on the other side.
I realize that attorneys have expenses that must be covered out of those hourly fees. Not all expenses can be passed on to the client. They have offices to maintain. They have staff to pay. They have insurance and utility costs. That all comes out of those hourly fees. When you consider that, $375 an hour may not be unreasonable. But in my opinion, $800 an hour is abusive, and simply invites scrutiny and potential “reforms” that will keep the attorney fee argument going in Florida for another 50 years. I will also point out that the judge too expressly noted in his decision that the fee requested was excessive and unreasonable.
This case is settled for the moment, but as indicated, is subject for a review if requested. It also is not the only fees related case in the docket. We will see what happens if they or other attorneys continue to push the issue.
Florida attorneys got a big win last year when the Castellano’s decision overturned restrictive legislation that capped their fees. They should take that win and work with it. Pushing the envelope on appellate fees to levels that John Q. Public considers obscene (and John Q. Public would consider $800 an hour – for either Plaintiff OR Defense – obscene) will only encourage another knee-jerk reaction from our legislature. And if that happened, we would find ourselves right back here again in a few years, trying to settle an issue that apparently cannot be settled. Kagan himself seemed to embrace the same sentiment, arguing that fees such as those requested would be “killing the golden goose.”
I think many would agree that such inflated fees for a routine appeal are decidedly unappealing.
A Technical Correction: I mentioned in the article that Castellanos brought down the 2003 statute, but in the Florida soap opera of fees, that was actually brought down by the Emma Murray decision; which is what spawned the 2009 even more restrictive fee statute — and it is the latter that Castellano’s struck down. So it goes here in Florida when reformers reform the reforms of previous reformers.