Worker’s Compensation Alert: What you Should Know About Florida Statute 440.34(3)

Attorney Dan Smith

Dan E Smith – Worker’s Compensation Attorney

Florida Statute 440.34(3) is a statute dealing with the payment of costs after a worker’s compensation case is processed. Enacted in 2003, this statute was amended in 2009 to supposedly clarify vague language. Listed below are the 2003 and 2009 versions of this statute:

2003:

(3) If the claimant should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the employer the reasonable costs of such proceedings, not to include the attorney’s fees of the claimant. A claimant shall be responsible for the payment of her or his own attorney’s fees, except that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer

2009:

(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees. A claimant shall be responsible for the payment of her or his own attorney’s fees, except that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier or employer

The original version explained that if a claimant won their case, they were entitled to have their attorney fees covered by the carrier. The ambiguity arises with what happens when an employer/carrier wins the case. The 2009 amendment makes this very clear, as it states the employee would then be responsible for the employer’s attorney fees.

Legally, this change was not intended to penalize anyone, but make the prevailing party “whole.” Now I could understand if the change in language was a mistake, but research shows it was not, making this law a complete abuse of power.

 

What this law does is force an injured employee to pay back thousands of dollars in attorneys’ fees if they lose their case. This is a ridiculous expectation, as if someone was injured at work, they’re probably not in any condition to work, let alone pay for an attorney. Because of this, there is an immanent threat of paying for all of the litigation fees, which scares many people out of filing suit. This small amendment is imposing an unconstitutional restriction on a person’s right of access to courts.

With all of this taken into consideration, I wonder how it is fair to expect this of an injured person, especially if they are seeking benefits in good faith. For example, I read about a case where a woman was clearly injured at work. She was set to receive worker’s compensation benefits, but there was a discrepancy between two medical professionals: one said she was permanently totally disabled, another said it wasn’t a total disability. Because of this discrepancy, she dropped the case, after which her employer petitioned for her to cover $16,000 in litigation fees. By dropping her case, her employer was technically the prevailing party, despite the fact that her injury was decidedly at the fault of her employer, and that she clearly could not work.  The courts still required her to pay $11,834.35 to her employer, per the stipulations in Statute 440.34(3).

Confusing laws, like Statute 440.34(3), are the reason why if you are filing a worker’s compensation claim you need an attorney on your side to help work through the details. The attorneys at the Coye Law Firm don’t want you to be afraid to seek the benefits you deserve, and we will work to get you the most compensation to the fullest extent of the law. If you or a loved one needs to file a Worker’s compensation claim, contact us today.

 

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