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Injured Workers Right to Hire a Workers Compensation Attorney Restored by the First DCA

In Miles vs. City of Edgewater Police, 1D15-0165 the First District Court of Appeal declared Florida Statutes 440.105(3)(c) and 440.34 unconstitutional because they infringe on the Claimant’s right to contract to pay attorney’s fees from their own funds for litigating a workers compensation claim.  Any contract for fees for representing an injured person must like all fees for Florida attorneys comply with the factors set forth in Lee Engineering, 209 So.2d. 454, 458 (Fla. 1968) and the Florida Bar Rule 4-1.5(b).  In Miles, the 1st DCA stated “we hold that no attorney accepting fees, per such a fee contract in this situation may be prosecuted under 440.105(3)(c) Fla. Stat.  The right of the Claimant to contract is known as a civil liberty possessed by all persons and is within the rights guaranteed by the Constitution.”

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In Miles, the court noted, “the right to contract is one of the most sacrosanct rights guaranteed by our fundamental law,” citing Lawnwood Med. Ctr. v. Seeger, 1222, 1244 (Fla.1st DCA 2007). The Court recognized that “the Statutes’ restrictions on a Claimant’s ability to contract for legal representation to obtain benefits no longer promote the health, safety, welfare or morals of the public when, as demonstrated here, an injured worker is unable to secure benefits to which she could potentially otherwise be entitled in the law, because of the statutory restrictions on attorneys compensation.” Id. at 22.  The Miles case states that an injured worker can waive the standard fee under 440.34 and agree to pay her attorney with her own funds or the funds of someone else, subject to the Judge’s finding that the fee is reasonable. “Criminal penalties of 440.105(3)(c), Fla. Stat. are unenforceable against an attorney representing a workers compensation client seeking to obtain benefits under chapter 440, as limited by other provisions discussed above.”  Based on that, an attorney can now seek approval of a fee agreement in compliance with the Miles decision.

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