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Emma Murray v. Mariner Health/Ace USA

SC07-244

ALL RISE.
O YE, O YE, O YE.
SUPREME COURT OF FLORIDA'S NOW
IN SESSION.
ALL THOSE HAVING BUSINESS
BEFORE THIS COURT, DRAW NIGH,
GIVE ATTENTION, AND YE SHALL BE
HEARD.
GOD SAVE THE UNITED STATES, THE
GREAT STATE OF FLORIDA, AND
THIS HONORABLE COURT.
GOOD MORNING.
GOOD MORNING.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
GOOD MORNING, FRIENDS,
WELCOME TO THE FLORIDA SUPREME
COURT ON THE ORAL ARGUMENT
CALENDAR FOR WEDNESDAY, APRIL
9th.
OUR FIRST CASE IS MURRAY v.
MARINER HEALTH.
MR.^SICKING, ARE YOU READY TO
APPROACH?
I AM RICHARD SICKING FROM
CORAL GABLES FOR THE PETITIONER
EMMA MURRAY.
TRIAL COUNSEL FROM PORT
CHARLOTTE AND HER APPELLATE
COUNSEL.
I WOULD LIKE TO SAVE THREE AT
LEAST MINUTES FOR REBUTTAL.
EMMA MURRAY WAS A NURSING
ASSISTANT WITH THE RESPONDENT
FOR MARINER HEALTH.
CAN I ASK YOU A QUESTION ON
YOUR CONSTITUTIONAL ISSUES FROM
READING THE BRIEFS, IT SEEMS TO
ME THAT THE PROBLEM -- THE
SPECIFIC ARGUMENT YOU'RE MAKING
IS ON SUBSECTION 3 OF THE
STATUTE, WHICH ATTORNEYS FEES
GIVEN TO THE PREVAILING PARTY
IF IT PREVAILS.
TO THE EMPLOYEE IF THE EMPLOYEE
PREVAILS.
YOU DON'T NEED TO BE CONCERTING
A CONSTITUTIONAL ARGUMENT AS TO
SUBSECTION 1, WHICH LIMITS THE
FEES THAT THE EMPLOYEE CAN
RECOVER OR CAN PAY THEIR OWN
ATTORNEY.
WELL, ACTUALLY THE
LIMITATION AND PERCENTAGES
STATED, APPLIES TO BOTH.
I UNDERSTAND THAT.
I UNDERSTAND THAT BUT IT SEEMS
FROM THE BRIEFS THAT YOU'RE
ONLY ARGUING THAT SUBSECTION 3
IS UNCONSTITUTIONAL TO THE
EXTENT THAT IT LIMITS THE
ATTORNEYS' FEES THAT AN
EMPLOYEE IF SHE IS A REVEALING
PARTY IN THE LITIGATION AGAINST
THE ANYWHERE CARE CONSIDER.
WELL THAT LIMITS THE FACTS
OF THIS CASE AND IF YOU LIMIT
IT TO THE FACTS OF THIS CASE,
THAT'S TRUE.
BUT AS I SAY IT APPLIES TO
BOTH.
THE LEGISLATURE DID NOT MAKE
THAT DISTINCTION.
WELL, BECAUSE, IF THE
STATUTE OPERATED BEFORE, FOR
2003 IN YOUR CONTENTION, YOU'VE
ALL SINCE FOR AT LEAST 20 YEARS
THERE'S BEEN A SEPARATION
BETWEEN WHERE THEY SEPARATED
OUT ATTORNEYS' FEES FOR THE
EMPLOYER, CARRIER, PREVAILING
PARTY VERSUS BETWEEN ATTORNEY
AND CLIENT.
HAS SUBSECTION 1 DEALT WITH
PERCENTAGES AND THEN HAD THE
LEE ENGINEERING FACTORS.
IT ALWAYS DID.
BECAUSE OF 2003 AND THEN
SUBSECTION 3 DEALS WITH
PREVAILING PARTY.
BEFORE 2003, HOW WAS THERE A
LIMITATION ON ATTORNEY-CLIENT
FEES WHERE TO THE CONTINGENCY
OR COULD THEY ALSO ASK THE
COURT FOR A HIGHER FEE BASED ON
THE LEE ENGINEERING FACTORED?
IT WAS THE SAME FOR BOTH.
BOTH.
SO THEREFORE -- I GUESS THIS
GOES BACK TO JUST THE STATUTORY
CONSTRUCTION AND YOU MAY NOT BE
MAKING IT TODAY, SUBSECTION 3
NEVER REFERRED TO THE LEE
ENGINEERING
FACTORS SO THE WAY THE
STATUTE'S ALWAYS BEEN
CONSTRUED ONE, SUBSECTION 1
AND SUBSECTION 3 WERE ALWAYS
CONSTRUED IN PARI MATERIA ARE
YOU THEN NOT ARE YOU GOING TO
MAKE THE ARGUMENT THAT WAS MADE
IN THE BRIEF THAT SUBSECTION 3
SHOULD 93 BE STANDING BY ITSELF
AND NOT BE CONSTRUED AS LIMITED
TO CONTINGENT FEES OR ALSO
INCLUDE THE LEE ENGINEERING
FACTORS.
OR AND THAT WAS THE ARGUMENT
MADE IN ONE OF THE AMICUS
BRIEFS.
WELL I THINK THEY RUN
TOGETHER.
I THINK IF YOU
UNDERSTAND IT HISTORICALLY THE
LEE CASE WAS MADE AND IN THE
THE COURT CODIFIED.
I UNDERSTAND HOW IT WENT.
WHAT I AM ASKING IS THAT BEFORE
IT WAS UNDERSTOOD EVEN THOUGH
SUBSECTION 1 IS THE ONLY
SUBSECTION THAT STATED THE LEE
ENGINEERING FACTORS THAT
SUBSECTION 3 IN FACT
INCORPORATED THOSE FACTORS.
YEAH.
THEY, THEY'RE ENTWINED.
THERE'S NO QUESTION.
OKAY.
BUT, IN THE BRIEF TO US, THE
ARGUMENT HAS BEEN MADE THAT
THEY WERE ACTUALLY SEPARATE
FREE STANDING AND THE THAT THE
REASONABLE ATTORNEY'S FEE IN
SUBSECTION 3 DID NOT
NECESSARILY INCORPORATE WHAT
SUBSECTION STATED.
WELL THAT WAS AN
INTERPRETATION ARGUMENT BUT I
THINK THAT WAS THOUGHT THE
CONSTITUTIONAL ARGUMENT.
BUT IF WE -- IF WE'RE
ABANDONING THAT THEN WE NEED TO
KNOW THAT.
YEAH, I THINK IT'S A
CONSTITUTIONAL QUESTION IF YOU
LOOK AT THE STATUTE TAKEN AS
WHOLE YOU SEE THAT THE CHANGE
FROM BEFORE TO THE CURRENT LAW
CHANGES A NUMBER OF THINGS.
MR.^--
FIRST IT CHANGED.
THE PAYMENT WAS NOT FOR
SERVICES RENDERED.
BUT RATHER FOR BENEFITS
SECURED.
THAT WAS ONE -- THAT WAS ONE OF
THE CHANGES.
THE OTHER CHANGE WAS TO DELETE
THE LEE ENGINEERING FACTORS
WHICH OF COURSE WERE REALLY THE
FACTORS FROM THE RULES FOR THE
REGULATION OF THE FLORIDA BAR,
WHICH PREVIOUSLY THE CODE
OF PROFESSIONAL ETHICS AND THEN
12 WHEN LEE ENGINEERING WAS
ENACTED.
YOU'VE GOT A UNIQUE
OPPORTUNITY THIS MORNING
ALTHOUGH IT'S A VERY LIMITED
OPPORTUNITY BECAUSE A AS YOU
CAN SEE IN TERMS OF US BOTH
TRYING TO UNDERSTAND WHAT THE
LEGISLATURE HAS DONE AND THE
STATUTORY INTERPRETATION HERE
TRYING TO INTERPRET THESE
DECISIONS OUT THERE COMING OUT
OF THE FIRST DISTRICT COURT OF
APPEAL AS FAR AS WHAT HAS
ACTUALLY BEEN HAPPENING ON THE
GROUND THIS CASE APPEARS TO BE
A PRIME EXAMPLE OF THAT.
WOULD YOU AGREE IN TERMS OF THE
WAY THAT THE STATUTE, THE
EFFECT THAT IT'S HAVING, BUT
WHAT I AM LOOKING FOR FROM YOU
IS AN ARTICULATION OF YOUR MAIN
CONSTITUTIONAL ARGUMENT THAT
THE YOU'RE MAKING HERE.
WHETHER IT'S AN ARGUMENT ABOUT
ONCE THE LEGISLATURE PROVIDES
FOR ATTORNEYS' FEES IN A
STATUTORY SCHEME, THAT CERTAIN
CONSTITUTIONAL PROVISIONS APPLY
OR WHATEVER, WHAT -- I DON'T
WANT TO PUT WORDS IN YOUR
MOUTH, BUT THIS, THIS IS AN
OPPORTUNITY FOR YOU NOW TO
ARTICULATE IN, IN THIS VERY
DIRECT WAY JUST EXACTLY THE,
THE GIST, THE STRONGEST PART OF
-- WHAT IS YOUR CONSTITUTIONAL
ARGUMENT?
OKAY.
THE SETTING FOR ALL OF THIS IS
4411053 C, WHICH MAKES IT A
CRIME FOR ANY LAWYER TO TAKE
ANY MONEY OR ANYTHING OF VALUE
FOR ANYONE REPRESENTING ANYONE
IN A WORKERS' COMPENSATION
MATTER WITHOUT APPROVAL OF THE
JUDGE SO NOW YOU UNDERSTAND WHY
44034 JUDGE'S APPROVAL IS SO
IMPORTANT.
THE JUDGE'S APPROVAL UNDER THIS
AMENDED STATUTE CAN ONLY BE
GIVEN IN AN AMOUNT THAT IS
EQUAL TO NO MORE THAN A FIXED
PERCENTAGE OF THE BENEFITS
SECURED.
THE STATUTE WENT FROM A PAYMENT
-- WHETHER WHO PAID IT, THE
CLIENT OR THE NONPREVAILING
PARTY TO A FIXED AMOUNT.
IT USED TO BE THAT THE
PERCENTAGE WAS A STARTING
POINT.
NOW IT'S A CONCLUSIVE ENDING
POINT AND THAT'S WHAT'S WRONG
WITH IT.
LET ME ASK ONE QUESTION.
WITHOUT THE CRIMINALIZATION, IS
IT STILL YOUR ARGUMENT THAT IT
IS AN UNCONSTITUTIONAL
PROVISION OR IS IT BECAUSE OF
THE CRIMINALIZATION OF TAKES
FEES ABOVE THAT?
CERTAINLY THAT'S PART OF T.
IN THIS SENSE.
WE CAN'T LOSE TRACK OF THE FACT
THAT THIS FEE IF THE PARTY'S
AGREED, TRIED TO AGREE, IF THEY
TRIED TO DO ANYTHING IN
VIOLATION OF THIS REGULATION
THAT IT'S A CRIME.
IT'S A CONCLUSIVE
PREMONITION THEN THAT THE FEE,
THE STRUCTURE SET OUT IN THE
STATUTE WHICH LIMITS THE FEE
OBVIOUSLY TO AMOUNTS SUCH AS
THIS CASE EXEMPLIFIES, IT'S
THAT CONCLUSIVE PRESUMPTION
THAT YOU'RE FOCUSING ON AND
WHAT CONSTITUTIONAL PROTECTION
DOES THAT VIOLATE?
DUE PROCESS, PROCEDURAL DUE
PROCESS.
WELL, WE HAVE PERCENTAGE
PROVISIONS IN THE STATUTES FOR
PERCENTAGES OF ATTORNEYS' FEES.

SOVEREIGN IMMUNITY BEING ONE.
LIMITS ATTORNEYS' FEES 25%.
SO THAT, THAT, YOU KNOW, THIS,
THAT WAS APPROVED IN INGRAM BY
THIS COURT.
THE PERCENTAGES BEFORE WERE
OKAY.
THE QUESTION IS CAN THEY BE
MODIFIED BY FACTS.
BUT SOVEREIGN IMMUNITY
CANNOT BE MODIFIED BY FACTS.
BUT WE DON'T HAVE A CRIMINAL
-- WE DON'T HAVE A CRIMINAL --
SO IT'S -- LET ME, LET ME,
MR.^SICKING YOU HAVE BEEN
AROUND THIS ABOUT AS LONG AS I
HAVE, SO I'LL WANT TO DRAW ON
YOUR EXPERIENCE HERE.
WHAT IS -- AND IT WAS A
THROWAWAY PART OF YOUR BRIEF.
WHEN I SAY THROWAWAY IT WAS
JUST MENTIONED AND MOVED ON IS
THAT UNDER THE LONG-STANDING
PROVISION OF THE COMPACT THAT
IN 105 IT HAS THIS PROVISION
THAT IS UNLAWFUL FOR ANY
ATTORNEY OR OTHER PERSON IN HIS
OR HER INDIVIDUAL CAPACITY?
NOW THAT, THAT DOESN'T JUST
LIMIT IT TO CLAIMANTS'
ATTORNEYS.
THAT LIMITS IT TO ANY ATTORNEY.

WHAT'S THE REASON THAT THAT'S
BEEN?
I KNOW IT HASN'T BEEN IN
PRACTICE THAT YOU'VE GOT TO THE
EC ATTORNEYS FOR, FOR APPROVAL
BUT WHAT'S --
WELL, IT DOESN'T HAVE MUCH
TO DO WITH WHAT WE ARE DOING
TODAY NECESSARILY BUT
ORIGINALLY THE STATUTE CLEARLY
APPLIED TO ONLY THE ATTORNEY
WHO REPRESENTED THE EMPLOYEE,
AND WHEN IT WAS MOVED FROM 434
AND ALL THE CRIMINAL VIOLATIONS
WERE PUT TOGETHER, THE LANGUAGE
WAS ENLARGED.
IT REALLY DOES SAY ANYBODY.
YOU'RE ABSOLUTELY RIGHT.
HOWEVER, IT WAS ALWAYS -- THE
LEGISLATIVE HISTORY AT THAT
TIME WAS THAT IT ONLY APPLIED
TO LAWYERS WHO REPRESENTED
WORKERS, NOT THE LAWYERS TO
REPRESENTED WORKERS AND
CARRIERS -- EMPLOYERS AND
CARRIERS.
I AM HAVING A HARD TIME
UNDERSTANDING YOUR
CONSTITUTIONAL ARGUMENT.
ANYTHING EVERYONE HERE WOULD
AGREE THESE FACTS LOOK CRAZY.
YOU HAVE GOT AN EMPLOYER WHO IS
PAYING THEIR ATTORNEY $16,000
AND, AND EXPERIENCED WORKERS
COMPENSATION ATTORNEY WHO'S
DONE, YOU KNOW, 80 HOURS OF
WORK GETS $600, WHICH IS $8.11
AN HOUR, AND THE IDEA WAS
LEGISLATURE SAID WE WANT TO
ACTUALLY INCREASE BENEFITS TO
THE CLAIMANT AND -- IT DOESN'T
MAKE -- IT DOESN'T MAKE SENSE
BUT WHAT YOU JUST SAID IN
ANSWER TO JUSTICE ANSTEAD IS
THAT IT'S A PROCEDURAL DUE
PROCESS ARGUMENT.
BUT THE CRIMINALIZATION OF
CHARGING A HIGHER ATTORNEYS'
FEES HAS NOTHING TO DO WITH
THAT I CAN TELL THAT HAS TO DO
WITH PROCEDURAL DUE PROCESS.
NOW IF YOU WERE TALKING ABOUT
SUBSTANTIVE DUE PROCESS
FAIRNESS BUT THIS SEEMS TO BE A
MOVING TARGET.
IT'S LIKE EVERYONE KNOWS THIS
JUST SEEMS UNFAIR BUT NO ONE'S
ATTACKING THE WHOLE SYSTEM
SAYING WE NOW HAVE -- WE DON'T
HAVE A REASONABLE ALTERNATIVE
ANYMORE.
THE WAY -- WHAT THE
LEGISLATURE'S DONE OVER THE
LAST 20 YEARS, THEY'VE
EVISCERATED RIGHTS FOR WORKERS.

NO ONE'S MAKING THAT GENERAL
ATTACK, AND I'M -- YOU'RE HERE,
AGAIN, WE'RE --, I, I DON'T SEE
WHERE PROCEDURAL DUE PROCESS
HAS TO DO WHETHER A FEE IS
CRIMINALIZED AND ONE MORE
THING.
IN ANSWER TO JUSTICE
CANTERO, THE PROBLEM IS NOT
JUST THAT YOU CAN'T GET THAT
FEE FROM THE EMPLOYER CARRIER.

I WOULD THINK YOU WOULD HAVE TO
ATTACK BOTH SUBSECTION 1 AND 3
BECAUSE IF YOU COULD ASK YOUR
CLIENT FOR THE ADDITIONAL
MONEY, JUST LIKE A SMALL CLAIMS
CASE MAYBE IT WOULD BE FAIR
AGAIN BUT YOU ARE ONLY
ATTACKING ONE PART, WHICH IS
THE RIGHT TO ATTORNEYS' FEES
AND IT'S LEGISLATIVE GRACE
WHETHER THEY DECIDE TO GIVE
ATTORNEYS' FEES OR NOT.
SO CAN YOU REARTICULATE HOW
THIS ALL WORKS TO BE PROCEDURAL
DUE PROCESS AND WHAT YOUR BEST
CASE IS ON THAT.
AS YOU KNOW, YOU HEARD FROM
EVERYONE THAT IT VIOLATED
ALMOST EVERY PROVISION OF THE
CONSTITUTION THAT THERE IS.
BUT WE HEARD FROM --
-- CONCLUSIVE PRESUMPTION,
THAT GIVES RISE TO PROCEDURAL
DUE PROCESS BECAUSE THERE IS NO
OPPORTUNITY TO BE HEARD.
IT DOES OFFEND SUBSTANTIVE DUE
PROCESS AND EQUAL PROTECTION AS
WELL BECAUSE IT CREATES A VERY
UNEQUAL CONTEST BETWEEN THE --
WHOEVER PAYS, THE EMPLOYEE OR
THE NONPREVAILING PARTY TO THE
EMPLOYEE BECAUSE THE EMPLOYER
CARRIER HAS A SWORD FOR WHICH
AN EMPLOYEE HAS NO SHIELD.
THEY CAN SPEND WHATEVER THEY
WANT IN DEFENSE OF THE CASE,
BUT HE IS FACED WITH BEING ABLE
TO PAY ONLY ON LIMITED
CIRCUMSTANCES A LIMITED AMOUNT
TO HIS ATTORNEY TO REPRESENT --

BUT THAT WAS PART OF JUSTICE
PARIENTE'S QUESTION THAT YOU
THREW IN ABOUT THE CRIMINAL
PENALTIES ON THE WARRIOR, BUT
YOU HAVEN'T THROWN IN TO THE
RECIPE OR THE MIX THE STATUTORY
PROHIBITION AGAINST THE
EMPLOYEE OF, OF PAYING.
IT'S THE SAME.
OKAY.
SO THERE ARE TWO PROVISIONS
THAT AFFECT THIS, IS THAT
RIGHT?
AND SO YOUR, YOU'RE ENDING
UNSAYING THAT THE EMPLOYEE GETS
SO BOXED IN THAT THERE'S JUST
NO LIFELINE OUT THERE THAT THE
EMPLOYEE HAS LEFT IN ORDER TO
GET FAIR REPRESENTATION, AND
FOR THIS TO BE A FAIR PROCESS.

IS THAT --
YEAH.
BECAUSE OF ALL THESE THINGS
BOXING IN.
IT IS AN ACCESS TO COURTS
PROBLEM IN MANY WAYS, ALTHOUGH
IT'S SORT OF LIKE AN EQUAL
PROTECTION/ACCESS TO COURTS.
MANY OF THE WORKERS'
COMPENSATION CASES ARE VERY
SMALL.
THIS ONE -- NO ONE IN TODAY'S
ECONOMY WOULD SAY THAT A $3,000
CASE WAS A BIG CASE BUT BY THE
SAME TOKEN, IF SOMEONE HAD ONLY
THREE WEEKS OF COMPENSATION, IT
WOULD BE A THREE, $400 --
WHY DOESN'T THE LEGISLATURE
MADE NO PROVISION FOR THERE
EVER TO BE AN INSTANCE IN WHICH
THE CLAIMANT COULD GET EC
ATTORNEYS' FEES, IN OTHER
WORDS, ATTORNEYS FEE FEES PAID
BY THE EMPLOYEE CARRIER.
THAT ISN'T THE FACTS OF THE
CASE BUT UNDER THE LIMITATIONS
IT WOULD BE THE SAME BECAUSE
THEY DIDN'T DISTINGUISH ABOUT
WHO COULD MAY.
THE QUESTION JUSTICE ANSTEAD
IS SAYING THERE ARE MANY CASES
THAT ARE SMALL CLAIMS CASES
WHERE THERE IS NO PREVAILING
PARTY ATTORNEYS' FEES STATUTE,
SO COULDN'T THE LEGISLATURE
HAVE SAID AS TO THE EMPLOYER
CARRIER PAYING ATTORNEYS' FEES,
COULDN'T IT JUST HAVE REMOVED
THAT PROVISION FROM THE STATUTE
ALTOGETHER AND SAY THERE'S FOE
PREVAILING ATTORNEYS' PARTIES
FEES IN WORKERS COMP.
THAT'S NOT OUR PROBLEM TODAY
BECAUSE THE LEGISLATURE CAN DO
WHAT IT DOES THAT YOU CAN ONLY
LOOK AT IT LATER AND SAY IS
THIS CRAZY OR NOT, BUT HERE?
--
THEY CAN REMOVE IT ENTIRELY
WITHOUT ANY PROBLEM, THEN WHY
CAN'T THEY LIMIT THE PREVAILING
PARTY ATTORNEYS'
FEES.
BECAUSE ONCE THEY HAVE DONE
IT, THEY CAN'T DO IT IN AN
UNCONSTITUTIONAL MANNER.
LET'S DISCUSS THE ACTUAL
CERTIFIED QUESTION THAT IS CAME
BEFORE THE COURT.
ARE YOU THEN CONCEDING WE
HAVEN'T DISCUSSED IT OR NOT AS
TO WHETHER THIS STATUTE
ACTUALLY LIMITS JUST TO THOSE
20, 10, 5% ALL OF THOSE THINGS
THAT ARE IN THE STATUTE.
UNDER SECTION 3, DO YOU HAVE TO
IN FACT USE THOSE PERCENTAGES
BECAUSE AS I READ THAT STATUTE,
THEY TALK ABOUT A REASONABLE
ATTORNEYS' FEE UNDER SECTION 3
SO, IS THERE ANY ROOM IN
SECTION 3 FOR SAYING THAT THE
20% LIMITATION THAT IS IN
SECTION 1 REALLY IS NOT
APPLICABLE TO SECTION 3?
WISHES WILL NOT MAKE IT SO.

IT'S VERY PLAIN BECAUSE OF THE
WAY THEY'VE CHANGED THE WORDS
FROM -- PAYMENT IS FOR SERVICES
TO NOW IS ONLY BASED ON BENEFIT
SECURITY THAT THE JUDGE MUST
NOT AWARD MORE THAN THESE
PERCENTAGE.
THAT'S EXACTLY
WHAT'S IN THE OTHER SUBSECTION
BUT IN SUBSECTION 3 S THAT THE
SAME LANGUAGE.
YEAH, THEY'RE REALLY
TOGETHER.
SO YOU ARE CONCEDING THEN --
ON THE CERTIFIED QUESTION THAT,
YES, YOU ARE LIMITED TO THOSE
THOSE PERCENTAGES.
I DON'T
THINK ANYBODY HERE IN PRACTICE
AND THAT'S WHERE WE'RE STUCK.
EVERY COMP JUDGE AND EVERY
-- HAS INTERPRETED.
THERE IS NO ONE HERE WHO
WANTS TO RUN THE RISK OF --
WELL THEN HOW DO YOU --
JUSTICE WELLS HAS A
QUESTION.
BENEFIT SECURED WAS IN THE
STATUTE PRIOR TO 2003.
IT WAS THERE,.
BUT THE PERCENTAGES WERE
ONLY A BEGINNING POINT SUBJECT
TO MODIFICATION BY DUE PROCESS.

RIGHT.
AND REALLY --
CONSIDERATION.
NOW AS A CONCLUSIVE ENDING
POINT WITH NO OPPORTUNITY TO
REBUT IT.
WHERE THE CHANGE WAS AT
THE END OF SUBSECTION 1 OR
SECTION 1.
AND THE DELETION OF THE FLORIDA
BAR FACTORS BASICALLY.
THAT, THAT WAS THE CHANGE IN
2003, CORRECT.
WELL, THERE WERE MORE.
THERE WERE MORE IN OTHER
PARTS OF THE STAT INSTITUTE.
BUT IT'S PART OF A SYSTEM IN
THAT THE BAIZE FOR THE PAYMENT
IS NO LONGER SERVICES IS
TIME AS OPPOSED TO MERELY SAYING
WHATEVER THE BENEFITS ARE, IF
THEY PRODUCE THE FEE $60600
THAT'S REASONABLE.
THAT'S NOT CONSTITUTIONALLY
REASONABLE.
IT'S NOT DUE PROCESS.
NOBODY HAS A CHANCE TO SAY
THEIR PEACE.
TO SAY THAT FOR THE LEGISLATURE
TO SAY TO THE EXECUTIVE YOU
SHALL NOT CONSIDER THE RULES
ADOPTED SUPREME COURT, AS TO
WHAT IS DETERMINES A REASONABLE
ATTORNEYS' FEE THAT YOU NOT
CONSIDER THE FACTS OF TIME IS
TYING A FACTOR THAT THE JUDGE
SHOULD CONSIDER.
ABRAHAM LINCOLN SAID THAT A
LAWYERS' TIME AND ADVICE ARE
HIS STOCK AND TRADE.
ABRAHAM LINCOLN WAS NOT WRONG.

TIME IS AN IMPORTANT FACTOR,
AND WHAT THE LEGISLATURE HAS
SAID HERE IS YOU CAN HAVE A
HEARING BUT YOU CAN'T TELL THE
JUNG HOW MUCH TIME WAS SPENT --
JUDGE HOW MUCH TIME WAS SPENT
BECAUSE THAT'S NOW LEGALLY
IRRELEVANT EVEN THOUGH
EVERYWHERE IN THE LAW, IN THE
RULES YOU FOLKS ADOPTED FOR THE
REGULATION OF THE FLORIDA BAR,
EVEN IN THIS STATUTE, IF IT WAS
TO BE REDUCED BY THE JUDGE, HE
HAS TO LOOK SOMEWHERE FOR THE
LAW OF WHAT IS RELEVANT.
AND THE TIME EXPENDED FOR THE
SERVICE IS A RELEVANT FACTOR.
SO ARE YOU REALLY SAYING
HERE THEN THAT IF A CLAIMANT
COULD IN FACT REACH SOME OTHER
AGREEMENT WITH THEIR ATTORNEY,
THAT THIS LIMITATION ON THE
FEES AND THE STATUTE WOULD NOT
BE UNCONSTITUTIONAL?
NO.
HE CAN'T DO THAT BECAUSE IF HE
DOES, IT'S A CRIME.
I UNDERSTAND.
I'M DOCKING ABOUT, I'M TRYING
TO GET TO WHAT YOU'RE REALLY
TRYING TO SAY, THE REASON THIS
STATUTE IS UNCONSTITUTIONAL?
IT HAS NO WAY OUT.
THESE PERCENTAGES ARE IT.
THERE'S NO FACT -- THERE'S NO
AGREEMENT.
WE CAN'T AGREE.
IF WE AGREE, THEN WE VIOLATED
THE STATUTE THAT HAS A CRIMINAL
PENALTY IN IT.
SO YOU CAN'T AGREE TO COMMIT A
CRIME.
THE JUDGE CAN ONLY APPROVE THE
PERCENTAGE OF THE BENEFITS.
THERE IS NO OPPORTUNITY TO
PRESENT FAX TO HIM THAT COULD
MAKE IT DEFENDANT ASK -- FACTS
TO HIM THAT COULD MAKE IT
DIFFERENT.
AND THAT'S NOT FAIR.
THAT'S NOT FAIR.
THAT'S NOT THE AMERICAN WAY.
THE AMERICAN WAY IS THE JUDGE
LISTENS TO ALL THE FACTS.
THE JUDGE WHO ONLY GIVES DUE
PROCESS HEARINGS, THAT'S HIS
ONLY JOB YOU CAN'T CONDUCT A
DUE PROCESS HEARING, YOU CAN'T
CONSIDER ALL THE FACTS.
WE ARE GOING TO SAY THAT YOU
CAN ONLY CONSIDER SOME OF THEM,
AND SOME OF THEM WHEN WE DO IT
THIS WAY, AND BY THE WAY, THIS,
THE POPULATION OF FLORIDA'S 18
MILLION PEOPLE.
WE HAVE A LOT OF WORKERS'
COMPENSATION CASES.
THIS CASE IS NOT SO UNUSUAL YOU
COULD SAY COULD WE JUST DO
UNCONSTITUTIONAL APPLIED?
NO, WE CAN'T BECAUSE THE JUDGE
OF COMPENSATION CLAIMS ISN'T --
HE CAN'T DO UNCONSTITUTIONAL As
APPLIED AND THE NUMBER OF CASES
WE COULD NOT POSSIBLY DUMP ON
THE DISTRICT COURT YOU KNOW BY
SAYING WE HAVE GOT TO GO TO THE
JUDICIAL BRANCH --
SO YOU ARE SAYING IT'S A
PRIMA FACIE CLAIM.
IT HAS TO BE BECAUSE THE
COMP JUDGE -- IN FACT, YOU
WOULDN'T WANT TO GIVE HIM THAT
POWER THERE ARE SO MANY THINGS
CRAZY IN THAT LAW.
AND THERE ARE TOO MANY CASES.
IF THESE PERCENTAGES, IF BE
JUST USED THEM AS A GUIDELINE.

THERE'S NOTHING WRONG WITH
USING THEM AS A GUIDELINE BUT
IT CAN'T BE THE CONCLUSIVE
ENDING POINT BUT IF IT WORKS
95% OF THE TIME WE WOULD HAVE
TO DUMP SOMEWHERE FROM 100 TO
300 CASE AS WEEK ON THE
DISTRICT COURT JUST TO DECIDE
ATTORNEYS' FEES.
WE CAN'T DO THAT.
THAT'S WHY IT'S FACIALLY
INVALID.
IT MAY BE ONLY A PERCENTAGE OF
THE CASES THAT ARE THE
SMALL CASES THAT PRODUCE THIS
RESULT BUT BECAUSE OF THE
POPULATION OF FLORIDA, THE
GROSS NUMBER OF THEM IS TOO
GREAT FOR THE LAW TO WORK T.
JUST DOESN'T WORK FOR MANY,
MANY, MANY CASES AND THAT'S THE
REASON ITS SPATIALLY INVALID.
I THINK I HAVE ONLY A FEW
SECONDS.
NO, I THINK I THINK YOU'VE
EXHAUSTED ALL YOUR TIME.
I KEPT TRYING TO SIGNAL TO YOU
BUT YOU JUST KEPT GOING.
RESPONSE?
GOOD MORNING.
MAY IT PLEASE THE COURT.
COUNCIL, MY NAME IS CHERYL
WILKE AND ALONG WITH JOHN
DARIN I HAVE THE PRIVILEGE OF
REPRESENTING MARINER HEALTH.
NOT WITHSTANDING
MR.^SICKING'S CONCESSION, IT
SEEMS TO ME THAT ONE OF THE
ELEMENTS THAT THE 2003
AMENDMENT DID NOT DELETE WAS IN
SUBSECTION 3 WHERE IT REFERS TO
A REASONABLE ATTORNEYS' FEES.
THE CERTAINLY THE LEGISLATURE
COULD'VE DEL33TED THE TERM --
DELETED THE TERM REASONABLE
BECAUSE THAT IMPLIES THE
ALLOCATION OF CERTAIN FACTORS
TO DETERMINE WHAT A REASONABLE
FEE IS.
DOES THE FACT THAT THE TERM
REASONABLE ATTORNEYS' FEES
REMAINS IN SUBSECTION 3 AT
LEAST CREATE AN AMBIGUITY IN
THE STATUTE THAT WOULD ALLOW A
COURT TO SAY, WELL THAT SIMPLY,
THESE FORMULA DOES NOT APPLY TO
ATTORNEYS' FEES AWARDED ON
SUBSECTION 3 BECAUSE UNDER THAT
SUBSECTION, THE LEGISLATURE
INTENDED FOR THE ATTORNEYS'
FEES TO BE REASONABLE.
JUSTICE CANTERO, IT DOES SAY
IN SECTION 1, AND I KNOW JUST
GOING BACK THAT ANY ATTORNEYS'
FEE HAS TO BE APPROVED BY THE
JUDGE AND THAT THE JUDGE MUST
APPROVE A FEE WITHIN THOSE
PERCENTAGES.
I UNDERSTAND, AND THAT,
HENCE THE AMBIGUITY.
IF IT DIDN'T SAY THAT, THERE
WOULDN'T BE AN AMBIGUITY.
IT WOULD BE CLEARLY REASONABLE
ATTORNEYS' FEES, SO.
BUT THEY ALSO USE THE WORD
REASONABLE IN SECTION 1 TO THE
EXTENT THEY SAY MUST APPROVE A
REASONABLE FEE SO, THEY USE
REASONABLE IN BOTH SECTIONS OF
THE STATUTE.
I WOULD LIKE TO FOLLOW UP
WITH JUSTICE CANTERO BECAUSE
NOTWITHSTANDING MR.^SICKING'S
BELIEF THAT IT IS NOT UNCLEAR
AND AMBIGUOUS I ACTUALLY FOUND
JUDGE URBAN'S BRIEF TO BE
SOMEWHAT COMPELLING AND THAT'S
WHY I'D ASK THIS
QUESTION.
FIRST OF ALL, SUBSECTION 5
DEALS WITH ANY PROCEEDINGS HAD
FOR REVIEW THAT THE COURT MAY
AWARD THE INJURED EMPLOYER TO
PEN AN ATTORNEY'S FEE TO BE PAID
BY THE CARRIER.
UNDER SUBSECTION 5, WHICH I
ASSUME REFERS TO APPELLATE
ATTORNEYS' FEES ARE THE SAME
LIMITATIONS IN, THAT ARE --
THAT, HOW DOES -- HOW IS THAT
DETERMINED?
WE GO BACK TO SUBSECTION 1 OR
IS THAT A FREESTANDING
PROVISION?
JUSTICE PARIENTE, THAT ISSUE
HAS NOT BEEN RAISED BEFORE THIS
COURT, HOWEVER --
NO --
I UNDERSTAND THAT BUT MY
UNDERSTANDING IS THAT IT WOULD
BE A FREE STANDING PROVISION.
NOW I APPRECIATE YOUR CANDOR
IN THAT.
IF IT'S A FREE STANDING
PROVISION THEN I'M HAVING
TROUBLE UNDERSTANDING WHY
SUBSECTION 3 ISN'T A FREE
STANDING PROVISION, AND THE
REASON I, THAT I GET TO THE
ISSUE OF AMBIGUITY IS AS
FOLLOWED, IS THAT YOU SAID THAT
IT REQUIRES THAT ANY ATTORNEYS'
FEES BY THE JUDGE -- BE
APPROVED BY THE JUDGE OF
COMPENSATION CLAIMS.
CLAIMANT.
IT GOES ON IN THAT SUBSECTION 1
TO SAY THE JUDGE' COMPENSATION
CLAIM SHOULD NOT CONCLUDE A
COMPENSATION ORDER A JOINT
STIPULATION OR AN AGREEMENT OR
ANY OTHER AGREEMENT THAT'S IN
EXCESS OF THIS AMOUNT.
TO ME THAT APPLIES TO AGAIN
STIPULATIONS FOR SETTLEMENT.
CONTRACTS BETWEEN ATTORNEY AND
CLIENT.
BUT IF THEY WANTED TO INCLUDE
IN THAT LIMITATION AN AWARD OF
FEES THEY COULD'VE SIMPLY SAID
AND THE JUDGE OF COMPENSATION
CLAIMS WILL NOT AWARD FEES TO
THE CARRIER IN EXCESS OF THIS
AMOUNT.
THE FACT THAT'S NOT IN THERE
AND IT'S NOT IN SUBSECTION 3,
I'VE READ THIS, AGAIN, I'VE
READ THE STATUTE AND I DON'T
HAVE THE BENEFIT OF
MR.^SICKING'S EXPERIENCE OF HOW
IT ACTUALLY WORKS IN PRACTICE
SO I LOOK AT THE STATUTE AND I
DON'T SEE THAT THE LIMITATIONS
IN SUBSECTION 1 ARE NOT, ARE
NECESSARILY IN SUBSECTION 3.
AND IT SAYS REASONABLE
ATTORNEYS' FEES, AND IT DOESN'T
THEN SAY REASONABLE ATTORNEYS'
FEES AS DEFINED BY SUBSECTION
1.
SO TELL ME WHY THAT'S NOT AN
AMBIGUITY AND THAT UNDER ALL
THE CIRCUMSTANCES OF THIS CASE
WE SHOULDN'T CONSTRUE IT AS
THE, ACTUALLY AS THE BRIEF IN
THIS CASE MAKES THAT POINT AND
VOID THE CONSTITUTIONAL ISSUE
THAT MR.^SICKING SEEMS SO
DESIROUS OF OUR CONFRONTING
HERE.
CERTAINLY, JUSTICE PARIENTE,
YOU HAVE THE RIGHT TO FIND ANY
AMBIGUITY YOU WANT.
I DON'T WANT TO FIND IT.
I WANT TO SAY --
[LAUGHTER]
SUBSECTION 5 AND AGREED THAT'S
FREE STANDING.
AND NOT SAY SUBSECTION 3 IT'S
FREESTANDING.
SUBSECTION 5 HAS NEVER COME
UP AND I CAN SEE WHERE IT'S AN
ISSUE.
I CAN SEE WHERE IT'S FREE
STANDING IN THE PAST BECAUSE
ATTORNEYS' FEES WERE AWARDED OR
NOT AWARDED BY THE APPELLATE
COURT A. MOTION WAS FILED AND
THEN A MOTION WAS DETERMINED
WHETHER OR NOT APPELLATE FEES
WOULD BE WARRANTED.
I DO UNDERSTAND THE BREAKDOWN
BETWEEN SECTION 1 AND 3, AND
JUSTICE IRVINE DID ADDRESS THAT
ISSUE.
PRACTICALITY A COMPENSATION
ORDER WHICH IS DEFINED IN
SUBSECTION 1 APPLIES TO
SUBSECTION 3.
YOU SAID YOU WEREN'T SURE
EXACTLY WHAT THE CONNECTION WAS
BUT A COMPENSATION ORDER WHICH
WOULD BE ANY COMPENSATION
AWARDING COMPENSATION OR
MEDICAL BENEFITS AS DEFINED BY
4404.01 WOULD BE THE CONNECTING
LINK BETWEEN SECTION 1 AND
SECTION 3.
LET NEE ADDRESS MR.^SICKING
AND THAT POINT IS
GNAWING AT ME AND IT DOES
SEEM TO ME THAT THE REAL
PROBLEM HERE IS 440.105 AND
PROHIBITED ACTIVITIES PROVISION
BECAUSE OF THE FACT THAT
CLAIMANT CANNOT GET A ATTORNEYS
FEE UNLESS IT'S APPROVED UNDER
440.34.
HOWEVER, THE STATUTE READ
LITERALLY DOESN'T IT APPLY NOT
ONLY TO CLAIMANTS ATTORNEYS BUT
TO ANY ATTORNEYS?
I MEAN, THAT SPECIFICALLY WHAT
THIS PROVISION SAYS ITS
UNLAWFUL FOR ANY ATTORNEY OR
OTHER PERSON IN HIS OR HER
INDIVIDUAL CAPACITY FOR OR FOR
ANY FIRM TO RECEIVE ANY FEE
FROM A PERSON, A PERSON IS
DEFINED AS EVERYBODY.
NOW, IF THAT, IF THAT APPLIES
BOTH TO THE EC, IF THIS STATUTE
IN TOTO APPLIES BOTH TO THE
EC'S ATTORNEY AND THE
CLAIMANT'S ATTORNEY, THEN IT
SEEMS TO ME WE'VE GOT AN EQUAL
PROTECTION QUESTION.
IN MR.^SICKING'S BRIEF THERE
WAS AN ADMINISTRATIVE ORDER BY
THE THEN CHIEF JUDGE SAYING
THAT THAT PROVISION DID NOT
APPLY TO IN PAID CARRIER'S
ATTORNEYS'' FEES.
BUT TELL ME WHY UNDER THE
LANGUAGE OF THIS STATUTE IT
DOES NOT?
WHAT IN THIS STATUTE SAYS THAT
IT ONLY APPLIES TO A CLAIMANT'S
ATTORNEY?
WELL, BECAUSE JUSTICE, IT --
THE STATUTE DEALS WITH THE
AWARD OF BENEFITS.
NOT 405.
405 IS PROHIBITED ACTIVITIES.
AGAIN, BECAUSE THE IT WAS
CLARIFIED BY THE CHIEF JUDGE AT
THE TIME TO INDICATE THAT
DIDN'T APPLY TO PROVISION
CARRIERS.
THE PLAIN WORDING OF THE
STATUTE DOES SAY THAT YOU MUST
BIDE BY THE TERMS AND
CONDITIONS OF THAT
STATUTE.
AND IF YOU'VE GOT TO DO THAT
THEN IT SEEMS TO ME THAT THE
BOTH THE CLAIMANT'S ATTORNEY
AND THE EC'S ATTORNEY HAS TO BE
DEALT WITH ON EQUAL FOOTING.
EXCEPT IN EMPLOYER CARRIERS
ATTORNEYS CANNOT BE AWARDED ARE
NOT AWARDED BENEFITS.
WELL, THAT, SEEMS TO BE
WHERE THE, WHERE THE PROBLEM
LIES.
HISTORICALLY, JUSTICE, THE
WHOLE ISSUE HAS BEEN THAT
EMPLOYER CARRIERS WERE PAID
HOURLY FEES BECAUSE OF THE
NATURE AND EXTENT OF THE WORK
AND THOSE HOURLY RATES WERE
SUBSTANTIALLY GENERALLY
SUBSTANTIALLY LOWER.
IN CASE SIEVE CO WHEN THOSE
CASES CAME OUT AND WERE VERY,
VERY LARGE HOURLY FEES AWARDED
THE LEGISLATURE TENDED TO
ADDRESS CLAIMANTS, EMPLOYER
CARRIER-PAID ATTORNEYS FEES TO
CLAIMANTS.
THAT WAS BROUGHT FORTH IN THE
LUNDE CASE TO SAY THAT THE
LEGISLATURE DOES HAVE A VESTED
INTEREST IN REGULATING
ATTORNEYS FEES.
DO YOU AGREE THE CONCEPT OF
REASONABLE APPLIES TO THE FEES
THAT ARE TO BE AWARDED.
REASONABLE AS DEFINED BY THE
PERCENTAGES, YES, SIR?
WELL, LET ME ASK YOU THAT
QUESTION.
THE CONCEPT OF REASONABLE THAT
I TAKE YOUR ANSWER TO MEAN
REASONABLE.
THEN IF WE APPLY THE STRICT
LIMITATION AND SAY THAT THAT IS
AN IRREBUTTABLE, IRREBUTTABLE
THAT THAT'S WHAT A REASONABLE
FEE IS.
WILL YOU SHARE WITH ME YOUR
THOUGHTS.
SURE.
THE DUE PROCESS PROBLEMS
WITH IRREBUTTABLE, IRREBUTTABLE
ESTABLISHMENT OF THAT FEE AND
WHAT CASE YOU WOULD RELY ON
ADDRESSING THIS ISSUE.
ST. STATES SO AND WHICH
HAVE BEEN STRICKEN BY THIS
COURSE COURT, INCLUDING --
LET ME SEE THEN, LET ME SEE
THEN.
LET'S GO BACK BECAUSE I THOUGHT
THAT YOU SAID THAT THIS WAS
CONCLUSIVE IN THIS CASE EVEN
THOUGH IT MAY NOT BE STATED IN
THE STATUTE.
IT IS A REASONABLY IS
CONCLUSIVELY DEFINED I DID NOT
SAY IT WAS A PRESUMPTION AND
BELIEVE THAT IT WAS A
PRESUMPTION IN DEFINED.
ARE WE PLAYING WITH WORDS
THEN BECAUSE IF THAT'S WHAT IT
IS BECAUSE IT DOES NOT SAY
THAT, IF IN FACT THAT'S WHAT IT
IS BUT IT DOES NOT SAY THAT
DOES THAT REMOVE IT?
I DON'T WANT TO EXAMINE IT?
I WANT TO KNOW DOES THAT REMOVE
THE CONCEPT OF BEING
IRREBUTTABLE BECAUSE SIMPLY
BECAUSE IT DOESN'T USE THAT
LANGUAGE.
IF THE LEGISLATURE INTENDED
TO BE A PRESUMPTION IRREBUTTABLE
OR NOT, THEY WOULD HAVE SAID
THAT WHAT THEY HAVE IMPOSED IS
A MANDATE WHICH IS VERY
DIFFERENT THAN A REBUTTABLE
PRESUMPTION.
WHEN THEY ESTABLISH THE
MAXIMUM THAT YOU CANNOT REBUT
AND SAY THAT IS REASONABLE THAT
THEY HAVE NOT THEN ESTABLISHED
SOMETHING THAT'S IRREBUTTABLE
YOU CANNOT REFUTE THAT BECAUSE
YOU HAVE ALREADY SAID THAT IT'S
THE CONCEPT OF REASONABLE AS
APPLIED.
SUCH AS CHIROPRACTIC LIMITS
BEING LIMITED TO 18 THERE IS
NOTHING IN THE STATUTE THAT
INDICATES THAT THAT IS A AN
IRREBUTTABLE --
I WOULD REALLY APPRECIATE IF
YOU WOULD JUST ADDRESS THE
DIRECT QUESTION.
TRYING TO MOVE THAT
SOMEWHERE ELSE.
NO THERE ARE LOTS OF ANSWERS
PORTIONS OF THE STATUTES THAT
ARE NOT IRREBUTTABLE
PRESUMPTIONS.
THIS IS ONE OF THEM.
JUST BECAUSE AN ATTORNEY FEE
STATES THAT DEFINES REASONABLE,
THERE ARE LOTS OF OTHER
PROVISIONS, 104 WEEKS OF
TEMPORARY TOTAL DISABILITY.
WELL, WHAT'S THE
DISTINCTION OR DIFFERENCE THAT
YOU WOULD HAVE HERE AS TO AN
IRREBUTTABLE PRESUMPTION.
IN OTHER WORDS, I AM AFRAID
THAT WE'RE DANCING ON SOME
LANGUAGE AND USING A LOT OF
TIME FOR IT.
YOU DO AGREE THAT THE STATUTE
FIXES A VERY DEFINITE LIMIT ON
THE FEES.
YES.
DO YOU NOT?
AND SO THE STATUTE SAYS THIS
IS THE ONLY FEE, AND, AND THE,
THE FORMULA AND THAT
REASONABLENESS REALLY DOES,
GOES OUT THE WINDOW WITH, WITH
THE STATUTE -- WITH THE
LEGISLATURE BEING SO PRECISE S.
THAT CORRECT?
BECAUSE, I NEVER HEARD YOUR,
YOUR ANSWER TO, TO JUSTICE
CANTERO'S QUESTION.
WHERE HE SAID BY THE VIRTUE OF
THE FACT THAT THEY'VE RETAINED
THE WORD REASONABLE, OKAY.
DOES THAT CREATE AN AMBIGUITY
THEN IN TERMS OF A CONSTRUCTION
OF THE STATUTE.
RIGHT.
I DIDN'T -- YOU, YOU STARTED
TO -- TALK ABOUT FREE STANDING
AND WHATEVER BUT I DIDN'T HEAR
YOUR ANSWER TO HIS QUESTION.
DO YOU AGREE OR DISAGREE THAT
AN AMBIGUITY IS CREATED BY BOTH
THE FIXED FORMULA THAT THE
LEGISLATURE HAS SET OUT BUT BY
THE USE OF THE WORD REASONABLE
IN THE SAME STATUTE.
NO, BECAUSE REASONABLE --
NO DA.
WAIT A MINUTE.
NO, THERE IS NO AMBIGUITY?
NO, THERE IS NO AMBIGUITY.
THERE IS NO AND THE READ
THERE IS NO AMBIGUITY IS
BECAUSE THE LEGISLATURE HAS
BEEN CLEAR THAT THIS IS THE
ONLY FEE THAT YOU CAN GET S.
THAT CORRECT?
THEY HAVE A CLEAR AND
DEFINING REASONABLE, YES.
NOW WE ARE IN THIS
EXTRAORDINARY SITUATION HERE
WHERE LAWYERS LIKE YOURSELF AND
LAWYERS WITH FAR MORE
EXPERIENCE THEN YOU
REPRESENTING EMPLOYERS AND
CARRIERS HAVE COME FORWARD AND
HAVE, YOU KNOW, FILED
AFFIDAVITS OR HAVE TESTIFIED
THAT THESE FEES IN ESSENCE ARE
OUTRAGEOUSLY LOW.
AND NOT REASONABLE.
YOU KNOW SO THIS IS AN
EXTRAORDINARY THING FOR US TO
SEE EMPLOYER CARRIER LAWYERS OF
VERY GREAT STATURE, YOU KNOW,
COME FORWARD AND, AND AGREE
THAT THESE FEES UNDER ANY
DEFINITION, YOU KNOW ARE, NOT
REASONABLE.
I ASKED THE QUESTION BEFORE OF
YOUR OPPONENT AS TO WHETHER OR
NOT THE LEGISLATURE COULD JUST
NOT PROVIDE FOR FEES AT ALL.
BECAUSE YOU KNOW SOMETIMES WE
APPLY THIS LEGAL PROPOSITION,
WELL IF THEY CAN DO, IF THEY
CAN BE KING KONG AND, AND SWAT
EVERYTHING AWAY, THEN WHY CAN'T
THEY DO SOMETHING LESSER, ALL
RIGHT?
AND THAT AND I THINK THAT
PROBABLY IS A, IS AN ISSUE HERE
BUT I'M CONCERNED AND I THINK
THAT THE REST OF US ARE
CONCERNED THAT THE LEGISLATURE
HASN'T JUST SIMPLY DONE THAT.
WHAT THEY'VE DONE IS THEY'VE,
HAVE MADE THIS FIXED FORMULA
AND THEN THEY'VE MADE IT A
CRIME FOR A LAWYER TO CHARGE
ANY FEE AND THEN PLUS THEY HAVE
MADE IT IMPOSSIBLE FOR THE
CLAIM TONIGHT PAY THE PERSON IN
CHANGES COURT FACING AN
OBLIGATION AND AT LEAST IS FREE
YOU KNOW TO TRY TO GET A LIAR.

YOU KNOW, LAWYER
TO REPRESENT THEM ON A
CONTINGENCY BASIS OR WHATEVER
BUT HERE THE LEGISLATURE HAS
COMPLETELY CUT OFF AT EVERY
PASS ANY ABILITY OF THE
CLAIMANT.
AND SO MY CONCERN IN THIS LONG
QUESTION TO YOU IS, IS THAT BY
DOING ALL OF THOSE THINGS THAT
THEY, THEY HAVE JUST, THEY'VE
PROVIDED NO REASONABLE PROCESS
AT ALL.
THEY HAVE MADE IT SUBSTANTIVE
SAYING WE ARE GOING TO GIVE YOU
A FEE BUT IT IS IMPOSSIBLE FOR
YOU TO HAVE ANY OUTLET FROM
THIS UNREASONABLE FORMULA
THOUGHT YOU HAVE.
HELP ME WITH THE FACT THE
LEGISLATURE THAT THIS IS THE
STRAW THAT BREAKS THE CAMEL'S
BACK.
WELL.
BY MAKING IT A CRIME ON THE
ONE SIDE, WHICH I, YOU KNOW,
THOSE PROVISIONS MAY HAVE BEEN
THERE BEFORE IN A DIFFERENT
CONTEXT.
AND NOW MAKING IT IMPOSSIBLE
FOR THE CLAIMANT TO PAY
ANYTHING ELSE.
ALL THERE'S JUST NO OUTLET HERE
FOR A CLAIMANT.
THIS GOES BACK AGAIN TO WHAT
JUSTICE PARIENTE SAID ABOUT
WHETHER OR NOT WHEN YOU LOOK AT
THE WHOLE PICTURE, WHETHER OR
NOT THIS WHOLE STORY SEEMS
CRAZY.
IF YOU LOOK AT -- v. HILLMAN AT
YOUR FIRST POINT IF THIS IS
MANIFESTLY UNFAIR BECAUSE OF
THE -- THEN --
WHY ISN'T IT A DUE PROCESS
ISSUE?
HERE?
IN THIS CASE AS FAR AS BEING A
DUE PROCESS ISSUE, THIS COURT
HAS ALREADY SAID THAT THE TEST
SHOULD BE USED IS WHETHER -- AS
TO WHETHER AN ACT IS
OF DUE PROCESS IS WHETHER THE
STATUTE HAS A REASONABLE BASIS
TO IT SET -- TO ITS SET PURPOSE
AND THE LUNDE COURT UNDER THE
FIRST DISTRICT COURT OF
APPEALS CLEARLY STATE THAT
WORKERS' COMPENSATION, THE
LEGISLATURE'S CONTROL OF
ATTORNEYS' FEES IN WORKERS'
COMPENSATION CASES BUT THIS --
LET ME TRY --
AND I --
AND I GO BACK TO THE ISSUE
OF THE PURPOSE.
IF THE PURPOSE IS TO MAXIMIZE
THE AWARD FOR THE CLAIMANT.
HOW COULD ARBITRARILY LIMITING
THE FEES PAID BY THE EMPLOYER
CARRIER, WHO IS WRONGFULLY
DENIED BENEFITS, AND IT
ADVERSELY AFFECTS NOT THE
CLAIMANT WITH THE BIG CLAIM,
BUT THE POOR WOMAN OR MAN WHO
HAS THE SMALL CLAIM.
SO WHAT THAT DOES THEY HAVEN'T
LEVELED THE PLAYING FIELD THEY
HAVE EVISCERATED THE PLAYING
FIELD BY SIT A SITUATION THAT
A CARRIER TO SPEND
UNLIMITED AMOUNTS OF MONEY
THERE IS A PRETTY HEFTY
EMPLOYER CARRIER BAR AND
EVISCERATED FEES THAT CAN BE
RECEIVED BY THE CLAIMANT.
AND AGAIN, I DON'T THINK THE
WHOLE STATUTE CAN GO.
WE DON'T LIKE THE EMPLOYER
CARRIER BUT WE ARE OKAY WITH
OUR WHOLE LIMITATION.
IT'S THE COMBINATION OF THE TWO
THAT MAKES THIS IN MY VIEW A
QUESTION OF WHETHER THERE IS
ALSO A DENIAL OF EQUAL
PROTECTION.
IN TERMS OF THE ABILITY OF
CLAIMANTS.
TO FIGHT WRONGFUL DENIALS OF
BENEFITS AND SO WHERE IS THE
EQUAL -- HOW IS THIS NOT A
DENIAL OF EQUAL PROTECTION AND
TWO, HOW DOES THE WAY THE
STATUTE IS WORKING FURTHER A
LEGITIMATE PURPOSE OF
MAXIMIZING BENEFITS TO THE
CLAIMANT.
JUSTICE PARIENTE,
THERE WAS MORE THAN
ONE PURPOSE BEHIND THIS
LEGISLATION SET FORTH BY THE
FLORIDA LEGISLATURE.
ONE OF THE OTHER PURPOSES
BESIDES ENHANCING BENEFITS WAS
REDUCING THE ECONOMIC IMPACT TO
EMPLOYER CARRIERS.
SO WHY COULDN'T THAT DIE
THAT.
WHY SHOULDN'T THEY LEVEL THE
FIELD SAYING WE ARE GOING TO
LIMIT THE FEES THAT EMPLOYER
CARRIERS CAN PAY THEIR OWN
ATTORNEYS?
GINN, THEY HAD THE ABILITY
TO DO THAT.
BUT THE ISSUE WAS CLAIMANT
ATTORNEY PAID FEES FROM THE
EMPLOYER CARRIER.
AGAIN, NOT DIRECTLY FROM THE
CLAIMANT.
MR.^SICKING IS ABSOLUTELY
RIGHT.
IN PRACTICE, CLAIMANTS
ATTORNEYS DON'T GO BACK TO
THEIR CLAIMANTS AND ASK FOR
FEES.
THEY SIMPLY SEEK BENEFITS,
SEEK THOSE FEES FROM THE
EMPLOYER CARRIER SO IN REALITY
WHAT HAPPENS IS THAT THE
EMPLOYER CARRIER OVER IN
HISTORICALLY HAS ENDED UP
PAYING SUBSTANTIALLY HIGHER
FEES --
ALL THEY NEED TO DO IS PAY
LEGITIMATE CLAIMS AND THEN
THERE'S NO ATTORNEYS' FEES.
ABSOLUTELY AND THAT IS WHAT
THE LEGISLATURE IS --
THAT IS WHAT THE LEGISLATION
INTENDED TO BUT HOW IN THIS
CASE WHICH WE HAVE BEFORE US
WHICH IS, THEY DENIED THE
BENEFIT, THEY CLAIMED FRAUD
AGAINST THE PLAINTIFF THAT WAS
CLAIMING IT AND EVERYBODY
AGREES THESE WERE COMPLEX
ISSUES THAT COULDN'T HAVE BEEN
LITIGATED.
HOW DID THAT -- HOW DID THAT
SERVE THE LEGISLATIVE PURPOSE?

WHAT HAPPENED IN THIS CASE?
YOUR HONOR, TAKEN THE FACTS
SEPARATELY AS THE WAY YOU'VE
STATED THEM, IT DOESN'T APPEAR
TO HAVE ANY RELEVANCE HOWEVER
IN LOOKING AT, MS.^MURRAY IS
NOT THE ONLY WORKERS'
COMPENSATION CLAIMANT OUT
THERE.
THERE ARE LOTS OF WORKERS'
COMPENSATION CLAIMANTS WHO GET
EXCELLENT REPRESENTATION FROM
THEIR ATTORNEY.
YOU NOTICE THERE IS A GALLERY
FULL OF PEOPLE HERE INTERESTED
BECAUSE THESE PEOPLE DO WANT TO
TAKE THESE CASES NOW LOOKING AT
THE LIMITED FACTS AND AGAIN IF
YOU DON'T AND I'M SURE YOU DID
DELVE INTO THE ACTUAL FACTS THE
FEE ACCEPTED BY MR.^SUITOR WAS
BASED ON A FAIRLY SMALL GROUP
OF BENEFITS HE ACCEPTED THAT HE
WAS AWARDED HE WAS ALSO AWARDED
THE PAYMENT AWARDED THE
SURGERY, AND HE, IT CHOSE NOT
TO ASK FOR AN ATTORNEY' FEES ON
THE AWARD OF THE SURGERY THAT
WAS PAID BY HEALTH INSURANCE
AND THEN REQUIRED TO BE
REIMBURSED BY THE EMPLOYER
CARRIER SO THE BENEFITS AWARDED
IN THIS UNDERLYING CASE WERE
NOT SIMPLY LIMITED BY WHAT YOU
SAW FACIALLY THEY COULD'VE BEEN
SUBSTANTIALLY HIGHER.
YOU HAVE USED UP ALL OF YOUR
TIME.
I KNOW YOU HAVE A GENTLEMAN
THAT CAME WITH YOU I WILL GIVE
HIM SOME TIME AND I WILL GIVE
ADDITIONAL TIME TO MR.^SICKING
BUT DID YOU HAVE A FEW COMMENTS,
SIR.
YES, YOUR HONOR.
I JUST WANTED TO -- THE ACCESS
TO COURTS SEEMS TO HAVE
DEVOLVED TO ACCESS TO ATTORNEYS
AND THE WAY THE WORKERS'
COMPENSATION LAW WORKS FROM A
LEGAL PERSPECTIVE IS THAT IF A
INJURED WORKING IS RECEIVING
BENEFITS HE GOES TO A LAWYER'S
OFFICE IT'S NOT UNCOMMON THERE
MAY BE AN ISSUE ABOUT THE RATE
THEY ARE BEING PAID OR THEY
WANT A DIFFERENT DOCTOR BUT
ONCE THAT RETAINER AGREEMENT IS
SIGNED IT'S NOT UNCOMMON FOR
THE ATTORNEY TO START ESCROWING
10% OF THE WEEKLY PAYMENTS
EVENTUALLY COVER ANY ATTORNEY'
FEE FOR ANY BENEFIT SECURED ON
BEHALF --
ISN'T THAT COVERED UNDER THE
STATUTE?
I MEAN, YOU, YOU STARTED
WITHOUT AN ACCESS TO COURTS
KIND OF ARGUMENT.
HOW IN THE WORLD IS REAL ACCESS
TO THE COURTS FOR THESE
CLAIMANTS?
IF THEY ARE LIMITED BY WHAT
THEY CAN GET UNDER THE STATUTE.

UNDER 3 OR 1, WHICHEVER 1 YOU
ARE TALKING ABOUT.
THEY CAN'T GO BEYOND THAT AND
GIVE ATTORNEYS ADDITIONAL
MONIES AND SO HOW IS THAT A
REAL ACCESS?
HOW MANY ATTORNEYS ARE GOING TO
WANT TO SPEND AS IN THIS CASE
80 SOME HOURS AND END UP
GETTING PAID $8 AN HOUR FOR
THEIR SERVICES?
WHY -- WHY ISN'T THAT A REAL
ACCESS TO COURTS ISSUE?
WELL, IT'S AN EXCELLENT
POINT, JUSTICE QUINCE.
IN THE CASE OF CAPS ON ATTORNEY
FEES IN MED MALPRACTICE CASES
IT'S MY UNDERSTANDING THAT NOW
THE INDIVIDUAL IS ENTITLED IF
THEY WANT TO, TO SIGN AN
AGREEMENT FOR IN EXCESS OF THE
CAPS THAT WERE IMPOSED.
BUT YOU CERTAINLY CANNOT DO
THAT UNDER THIS STATUTE.
TRUE BUT IN MS.^MURRAY'S
CASE IF WE ARE NOT GOING TO USE
THIS PARTICULAR CASE TO SIMPLY
A VEHICLE TO ATTACK THE
CONSTITUTIONALITY OF A STATUTE
MS.^MURRAY NEVER HAD A PROBLEM
OBTAINING COUNSEL OR ACCESS TO
COURTS.
YOU ARE STOPPING AT THE
INDIVIDUAL CASE, AND YOU'RE
OPENING TO THAT IS A HUGE
OPENING.
YOU SAID TRUE.
IN ANSWER TO JUSTICE QUINCE'S
QUESTION.
TRUE THAT SINCE THEY CAN'T
AGREE TO PAY ANY AGREED OR FEE
THAT THEY'RE HEMMED IN AND NOW
YOU GO TO MS.^MURRAY'S CASE
WHAT GOOD DOES IT DO TO
DEMONSTRATE THAT IN ONE CASE,
YOU KNOW, MAYBE THINGS WORKED
OUT ALL RIGHT OR SOMETHING, BUT
THAT THE LAW, OKAY HERE, TRUE,
OKAY, REALLY AS OPPOSED TO THIS
INCREDIBLE USE OF THE WORD
REASONABLE AND THEN TO GO TO A
FORMULA HERE THAT IN, IN
EVERYBODY'S VIEW AND AS I SAID
BEFORE WE HAVE THIS
EXTRAORDINARY SITUATION OF
PEOPLE LIKE YOURSELF SAYING
THIS IS TOTALLY IRRATIONAL.
THAT, THAT, IN TERMS OF THE
FEES.
SO HOW CAN WE LET A SCHEME THAT
ALLOWS NO OXYGEN IN STAND?
JUSTICE ANSTEAD, THE
CLAIMANTS' PRACTICE IS ALIVE
AND WELL.
THE SYSTEM AS A WHOLE IS
WORKING.
BECAUSE BETWEEN, IF YOU'VE GOT
100 OR 200 CLIENTS, YOU'RE
ESCROWING MONEY ON AT 10%.
THIS STATUTE ONLY APPLIES DO
I UNDERSTAND THE CORRECTLY WHEN
THE EC UNREASONABLY OR
IMPROPERLY DENIED BENEFITS.
IS THAT THE TRIGGERING EFFECT
OF THIS PARTICULAR STATUTORY
SCHEME?
WELL, THE PERCENTAGES APPLY
ANYTIME A, IF A CLAIMANT'S
PAYING THEIR OWN FEE, THE
CLAIMANT PAYS ONLY IF THEY HAVE
DENIED BENEFITS FOR 30 DAYS --
THIS CASE CAME ABOUT BECAUSE
OF THE UNREASONABLE DENIAL OF,
OF THE CLAIM.
ISN'T THAT RIGHT.
NO.
NO?
THERE WERE GOOD ISSUES BOTH
WAYS BUT THE EMPLOYER CARRIER --

SO I SEE.
THAT HAS NOTHING TO DO WITH
MS.^MURRAY'S CASE.
WELL I AM JUST SAYING THERE
WERE REAL ISSUES THERE.
THERE WERE NO PRIVILEGES.
I AM ASKING YOU IF THE ISSUE
IN THE CASE WAS THE
UNREASONABLE DENIAL OF
BENEFITS.
NO, THE ISSUE IN
MS.^MURRAY'S CASE WAS WHETHER
SHE WAS ELIGIBLE FOR THE
BENEFITS.
I SEE.
COULD I GET YOU TO ADDRESS
THE QUESTION THAT I POSED TO
YOUR CO-COUNSEL, AND THAT IS IS
IT NECESSARY IN YOU VIEW THAT
THE STATUTE SAY SPECIFICALLY
AND EXPRESSLY SAY THAT THIS IS
AN IRREBUTTABLE PRESUMPTION
BEFORE THE CONCEPT OF
IRREBUTTABLE PRESUMPTIONS CAN
BECOME OPERATIVE AND CAN BECOME
A DUE PROCESS CONCERN OR DOES
THIS STATUTE BY VIRTUE OF US
USING THE PHRASE REASONABLE
FEES AND THEN STATING WHAT
THOSE ARE THAT CANNOT BE
CHANGED ACCORDING TO YOUR
ARGUMENT, WHY WOULD NAT THAT
DROSS THE ISSUE OF IRREBUTTABLE
PRESUMPTIONS OF WHAT IS
REASONABLE AND IMPACT IN SOME
WAY A DUE PROCESS DISCUSSION.
I, I AGREE WITH MY
CO-COUNSEL THAT THERE WOULD
HAVE TO BE SOME SORT OF
STATEMENT THAT IT WOULD BE
IRREBUTTABLE.
HAS TO BE EXPRESSED THE
STATEMENT.
THE CASE SUPPORTS THAT.
I WOULD -- IF YOU GO BACK TO
THE RECKY CASE THAT WAS CITED
IN THE BRIEFS THERE WAS A TEST
PUT FORTH THERE REGARDING
IRREBUTTABLE PRESUMPTIONS.
AND I THINK THE, THE TEST IS
STATED HERE.
LEAD TO AN INTERPRETATION BUT
THE GUIDELINES SET FORTH IN
440.34 ARE NOT AN IRREBUTTABLE
PRESUMPTION.
WELL, WHAT A -- WAIT A
SECOND.
YOU ARE AGREEING THAT THE
SUBSECTION 3 WHEN IT SAYS THAT
THERE SHALL BE AN AWARD OF
REASONABLE ATTORNEYS' FEES,
THAT DOESN'T EVEN REFERENCE
ANYTHING ABOUT WHAT REASONABLE
IS, WHAT YOU'RE ASKING THIS
COURT TO DO IS SAY REASONABLE
IS CONCLUSIVELY DEFINED AND
CANNOT BE REBUTTED OR
CHALLENGED BY THE PERCENTAGES
STATED IN SUBSECTION 1.
ISN'T THAT HOW YOU ARE ASKING
US TO INTERPRET THE STATUTE?
I'M, I'M ASKING THE COURT TO
LITERALLY AND STRICTLY
INTERPRET THE STATUTE IF IT
NEEDS INTERPRETATION BECAUSE IN
--
BUT TELL ME.
-- THE ANSWER IS NOT -- JUST
LIKE YOU CAN'T THROW OUT EVERY
CONSTITUTIONAL PROVISION THAT
EVER EXISTED AND TELL THE COURT
JUST PICK WHICHEVER ONE YOU
WANT I AM SAYING THIS STATUTE
WHAT YOU ARE SAYING IN
SUBSECTION 3 SAYS REASONABLE
ATTORNEYS' FEES SHALL BE NO
MORE THAN THE PERCENTAGES OF
BENEFITS RECOVERED AND THOSE
PERCENTAGES ARE SET FORTH IN
SUBSECTION 1 AND NO MATTER
WHETHER THERE'S EVERY MEMBER OF
THE BAR COMES IN AND SAYS
REASONABLE IN THIS CASE IS NOT
THAT, THE JUDGE CAN'T HEAR
THAT.
THAT'S THE EFFECT OF THE
STATUTE, THAT AS YOU'RE
INTERPRETING IT, CORRECT?
THAT IS CORRECT, JUSTICE
PARIENTE.
AND NOW YOU ARE TELLING US,
YOU ARE STANDING HERE AND
TELLING US THAT THAT'S NOT A
CONCLUSIVE IRREBUTTABLE
PRESUMPTION?
OR WHATEVER -- OR EVIDENTIARY
FACT THAT DOESN'T GIVE ANY
DISCRETION TO THE JUDGE OF
COMPENSATION CLAIMS?
NO MORE THAN THE ATTORNEYS'
FEE LIMITS AND SOVEREIGN
IMMUNITY CASES, YOUR HONOR.
AND THERE IS A PROVISION IN
44043 THAT TALKS ABOUT IN
MEDICAL ONLY CLAIMS THERE'S A
$150 AN HOUR PROVISION UP TO
$1500 SO IF THE LEGISLATURE
INTENDED FOR REASONABLE TO MEAN
SOMETHING DIFFERENT UNDER THE
30-DAY PROVISION OR THE TOTAL
DENIAL OF A CASE PROVISION,
THEY COULD'VE PUT IT IN THERE,
BUT THEY DIDN'T.
THEY ONLY PUT IN THE $150 AN
HOUR PROVISION FOR MEDICAL ONLY
CLAIMS.
WE HAVE NOW GONE WAY OVER
WITH, WITH BOTH AND I'LL JUST
EQUAL OUT THE TIME.
THANK YOU VERY MUMP, YOUR
HONOR.
I APPRECIATE IT.
THANK YOU FOR YOUR
ARGUMENTS.
YOU WILL HAVE -- PLEASE SWITCH
THE CLOCK.
THE OPPOSITE OF REASONABLE
IS UNREASONABLE.
IF THE STATUTE HAD SAID.
PLEASE START THE CLOCK.
REASONABLE FEE AND WE
STARTED -- IF THERE WERE NO
WORD AT ALL.
THE CONSTITUTION WOULD REQUIRE
THAT THE FEE BE REASONABLE.
SO THE, AND THE GOOD -- AND
AMBIGUITY WE APPEAR TO HAVE IS
THAT IT SAYS UNREASONABLE AND
THEN DOES SOMETHING THAT'S
UNREASONABLE.
AND SO THE FOCUS MUST BE HERE I
THINK ON WHAT IS DONE NOT WHAT
IS SAID, WHAT LABEL THE
LEGISLATURE PUTS ON.
IF WE HAVE A CRIME AND NOW IN
ADDITION TO THAT, WE HAVE AN
ECONOMIC DISINCENTIVE FOR
EMPLOYEES TO MAKE SMALL CLAIMS
BECAUSE THE, THE FEES THAT
WOULD BE GENERATED BY A SMALL
AMOUNT WOULD BE SO PICAYUNE
THEY WOULD NEVER PAY FOR THE
SERVICE.
THE KEY OF COURSE IS THAT THEY
CHANGED THE FOCUS FROM IT BEING
FOR SERVICES RENDERED,
REPEALED THAT LANGUAGE AND NOW
MADE IT THAT THE PAYMENT WAS
ONLY FOR SERVICES -- FOR
BENEFITS OBTAINED, BENEFITS
SECURED.
AND THAT ISN'T REAL --
WELL LET ME ASK YOU A
QUESTION.
YOU FOLKS ON THE MICRO, THE
LEGISLATURE FOCUSES ON THE
MACRO ECONOMIC.
AND WHAT IS IT YOUR POSITION
THAT THIS COURT IS BECAUSE YOU
SELECTED THIS CASE AND THE
MACRO IMPACT IS WHAT IT IS.
OR IS THERE ANY CONSIDERATION
THIS COURT GIVES TO THE MACRO?

VIEW OF THE COST?
WELL, I --
PUBLIC POLICY ISSUES.
WELL, I THINK THE PUBLIC
POLICY ISSUE IS IN THE, IN THE
$4 BILLION INDUSTRY THAT
WORKERS' COMPENSATION IS.
THIS IS SMALL.
BUT TO THE INDIVIDUAL PEOPLE
WHO HAVE SMALL CLAIMS FOR
WHATEVER, A FEW WEEKS OF
WORKERS' COMPENSATION, YOU
KNOW, EVEN A CASE LIKE THIS,
THAT WAS VERY COMPLICATED,
BECAUSE OF THE $18 MILLION
PEOPLE, -- 18 MILLION PEOPLE,
IT'S A LOT AND FOR THEM, IT'S
EVERYTHING.
THIS IS WORKERS' COMPENSATION
IS AFTER ALL ONE OF THE MOST
COMMON WAYS CHIN THE PEOPLE OF
FLORIDA MEET THEIR LEGAL
SYSTEM.
SO COST IN TERMS OF THE BIG
PICTURE IT'S VERY SMALL BUT TO
THE INDIVIDUAL PEOPLE INVOLVED,
IT'S VERY BILL.
-- BIG.
BUT LET NEE GO BACK TO
FOLLOW-UP ON JUSTICE BELL'S
SORT OF COMMENT AND I'M
WONDERING YOU CONCEDE SAYING
THIS IS A FACIAL CHALLENGE BUT
AT THE SAME TIME YOU ARE SAYING
WELL THERE IS A SIGNIFICANT
NUMBER THAT THIS WOULD IMPACT.

WHAT IS THE CONSTITUTIONAL
TEST, THOUGH FOR A FACIAL
INVALIDITY OF A PARTICULAR
STATUTE OR PROVISION?
IT'S NOT THAT THAT A GREAT MANY
TIMES THIS MAY BE, CANNOT BE
APPLIED BUT ISN'T THE FACIAL
TEST THAT UNDER NO
CIRCUMSTANCES CAN THIS BE
APPLIED AND IF NOT, THEN IT'S,
AN APPLIED TEST RATHER THAN A
FACIAL.
CHALLENGE.
WELL, IN A SUBSTITUTE
AGREEMENT FOR A
COMMON LAW IT HAS
TO BE A LAW THAT WORKS SO I
DIDN'T WANT ANYONE TO THINK.
WHAT CASE WAS THAT?
IT WAS MY UNDERSTANDING THAT IT
WAS THERE MUST BE AN ADEQUATE
ALTERNATIVE REMEDY THAT CAME
OUT OF THE CASE YEARS
AGO.
I DON'T KNOW ABOUT A CASE THAT
SAYS THAT SOMETHING MUST ALSO
WORK.
WELL IT CERTAINLY HAS TO BE
ONE THAT WORKS.
I ONLY MENTION THAT POINT
BECAUSE THE CASE IS NOT AN
ISOLATED CASE AND AS YOU KNOW,
IT WAS LIKE, I THINK IS THE
FIFTH, FOURTH OR FIFTH CASE
THAT HAD COME TO THE CASE.
THAT MAKES A DIFFERENCE,
DOES IT NOT, IN THE SUBSTANTIVE
LAW IF IT'S A FACIAL CHALLENGE
OR AS APPLIED CHALLENGE.
WELL YOU CAN DO AS APPLIED
BUT THE JUDGE OF COMPENSATION
CAN'T IN THE NEXT CASE WE WOULD
HAVE TO DO IT AGAIN AND OVER
AND OVER AGAIN.
THE COMP JUDGE CAN'T DO IT
BECAUSE HE'S AN EXECUTIVE
BRANCH OFFICIAL WE WOULD HAVE
TO GO TO THE JUDICIAL BRANCH.
WE WOULD BE DUMPING A MINIMAL
OF 100 CASE AS WEEK ON THEM.
SO JUST TO FOLLOW UP ON
THAT, IF IT'S AN FACIAL
CHALLENGE, YOU'RE, WE'RE REALLY
LIMITED TO THE, THE STATUTE
ITSELF, THE LANGUAGE OF THE
STATUTE.
WE CAN'T CONSIDER WELL WHAT
WOULD HAPPEN IN THIS PARTICULAR
CASE.
BECAUSE WE'RE LOOKING AT JUST
THE STATUTE FACIALLY AS APPLIED
TO EVERYBODY IS IT
CONSTITUTIONAL?
YEAH, BECAUSE IT SAID THIS
IS REASONABLE.
THAT WAS THE LABEL.
AND THEN WHAT THEY DID ISN'T.
AND THAT'S WHY IT'S FACIALLY
INVALID.
I MEAN,.
WELL, AGAIN, YOU CAN'T --
-- 16,000 WE HAVE TURNED THE
WORLD UPSIDE DOWN.
THE WINNER GETS LESS -- IT'S
BETTER TO LOSE.
IT MAKES NO SENSE.
IT'S CRAZY LAW.
AND.
BUT THE QUESTION WOULD --
NOT TRYING TO AVOID -- THE
QUESTION IS GETTING THROUGH.
IS WHETHER THERE IS A CASE OUT
THERE, YOU KNOW, FOR A HIGHER
BENEFITS AND SUCH IS THAT,
WHERE IF THIS LEGISLATE
FORMULA WAS APPLIED, THAT IT
WOULD APPEAR TO GIVE A RESULT
AND IT ALSO APPEARS TO BE
REASONABLE.
ISN'T THERE A CASE OUT THERE
LIKE THAT.
THE PRYOR BALL WORKED FOR
DECADES.
THERE'S NOTHING WRONG -- THAT'S
IN YOUR RULES.
THE VALUE OF A, OF THE FEE
TIMES THE RESULT IS SOMETHING
TO CONSIDER AS A STARTING
POINT.
NOT BEING THE ENDING POINT IS
DUE PROCESS IMPOSSIBLE.
THAT IS NOT THE QUESTION.
IS THERE A CASE OUT THERE --
SURE THERE ARE SOME CASES
WHERE IT WOULD WORK.
THERE ALSO LIMITATIONS ON OW
POUR.
I UNDERSTAND.
AND WHY THE POWER -- PRIOR
LAW MAY HAVE WORKED, THIS COURT
CAN'T JUST GO BACK AND SAY WELL
THE PRIOR LAW WORKED BEFORE
BETTER AND THEREFORE --
THE POINT IS THIS LAW IS
UNCONSTITUTIONAL, WHICH IT IS,
WOULD NOT WREAK CHAOS WE WOULD
REFER TO THE FORMER STATUTE
BECAUSE IT WAS AN AMENDMENT.
THAT WAS MY POINT.
OKAY.
THANK YOU VERY MUCH.
WE APPRECIATE THE ARGUMENTS,
AND WE'LL TAKE THE CASE UNDER
ADVISEMENT.