Please check here for some great tips on how to use the Google search engine.

From the FJA:

Oct. 23, 2008 

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.

Go to

http://www.floridajusticeassociation.org/files/courtopinions/murray_opinion.pdf

in order to read the Florida Supreme Court’s opinion in Murray v. Mariner Health and Ace USA.

By Dorothy Sims 

When litigating an injury, lawyers often focus on the patient and the spouse.  Unfortunately, an injured individual may have children who are suffering too.  Children may blame themselves when a parent is depressed or irritable.  Children don’t have the cognitive abilities to reason through “Mom is on medication that makes her tired all the time so it’s not her fault she won’t play with me.”  Or “Dad hurts so he’s grouchy and when he yells at me, he’s not really mad at me, he’s just frustrated with his situation.”

Log on to www.ocalaw.com and download a free book I authored called “Mommy Hurts” and give it to your clients.  Encourage them to read the book to their children and then explain to the child that nothing he or she has done is responsible for the parent’s pain.   If you don’t suggest this…who will?

 Sims, Stakenborg & Henry, P.A. specializes in being “The Ghost in the Machine.” The lawyers assist other attorneys throughout the U.S. in analyzing medical records and proving disability and causation. 

1. Consequences of TBI:
   1. Increased risk of depression.[1]
   2. Increased risk of mania.[2]
   3. Increased risk of suicide.[3]

2. Pre-existing conditions that can interfere with recovery from TBI
   1. Age.[4]
   2. Gender (women fare worse)[5]
3. Litigation is not a factor in developing emotional sequelae after TBI.[6]

4. Everyone doesn’t always get better after a mTBI.

“…A significant minority of patients develop a chronic, often debilitating constellation of signs and symptoms known as the chronic post concussive syndrome, that can be vexing to evaluate and treat.”[7]

5. How to prove TBI

1. 1. Compare patient’s  handwriting before v. after accident.
   2. Compare gait/wear pattern on shoes to show uneven gait
   3. Have family keep detailed diary on patient’s behavior ( sample diary found at  www.ocalaw.com

[1] Ricardo E. Jorge, MD et al, “Major Depression following Traumatic Brain Injury,” Arch Gen Psychiatry, 2004;61:42-50.

[2] Thomas w. McAllister, MD, “Neuropsychiatric Sequelae of Head Injuries, “The Psychiatric Clinics of North Americal, The interface of Psychiatry and Neurology, Vol.l5, No.2, June 1992, Jose Biller, MD, FACP and Roger G Kathol, MD, FACP, FAPM, Guest Editors, W.B. Saunders Company pp 395-413.

[3] Brenner, Lisa, Phd, “Application of a Novel Theoretical Model to Suicide Risk Assessment after Traumatic Brain Injury, “Brain Injury Professional, 2008, Vol. 5, Issue 1, pp. 26-28.

[4] John A. Jane, Paul C Francel, Chapter 54:”Age and Outcome of Head Injury,” Part I, Head Trauma  pp793-804.

[5] Farace, Elena, Phd, Alves, Wayne, Phd, “Do Women Fare Worse? A Metaanalysis of Gender Differences in Outcome After Traumatic Brain Injury,” Neurosurg Focus 8(1), 2000, American Association of Neurological Surgeons; http://www.medscape.com, pp 1-13.

[6] Bernstein, Robert A. Phd, et al, “Neuropsychological deficit and emotional disturbance in head injured patients.” J. Neurosurg., Vol. 70, April 1989; pp509-513

[7] Silver, Jonathan, McAlllister, Thomas, “Forensic Issues in the Neuropsychiatric Evaluation of the Patient with Mild Traumatic Brain Injury,” Journal of Neuropsychiatry, Winter l997, Vol. 9, No. 1, at 102.