Miles v. City of Edgewater Police Dep't/Preferred Governmental Claims Solutions

• Decision Date: 20 April 2016
• Docket Number: No. 1D15–0165.,1D15–0165.
• Citation: 190 So.3d 171
• Parties: Martha MILES, Appellant, v. CITY OF EDGEWATER POLICE DEPARTMENT/PREFERRED GOVERNMENTAL CLAIMS SOLUTIONS and State of Florida, Appellees.
• Court: Florida District Court of Appeals

190 So.3d 171

Martha MILES, Appellant,

v.CITY OF EDGEWATER POLICE DEPARTMENT/PREFERRED GOVERNMENTAL CLAIMS SOLUTIONS and State of Florida, Appellees.

No. 1D15–0165.

District Court of Appeal of Florida, First District.

April 20, 2016.

Rehearing Denied May 13, 2016.

Michael J. Winer of the Law Offices of Michael J. Winer, P.A., Tampa, and Geoffrey Bichler of Bichler, Kelley, Oliver & Longo, PLLC, Maitland, for Appellant.

Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Amici Curiae Fraternal Order of Police, Police Benevolent Association, International Union of Police Associations, and Florida Association of State Troopers, in support of Appellant.

George A. Helm, III, Lake Mary, and William H. Rogner, Winter Park, for Appellees City of Edgewater Police Department/Preferred Governmental Claims Solutions.

Pamela Jo Bondi, Attorney General, Rachel Nordby, Deputy Solicitor General, Office of the Attorney General, Tallahassee, for Intervenor State of Florida.

THOMAS, J.

In this workers' compensation appeal, Claimant, a law enforcement officer, appeals two orders of the Judge of Compensation Claims (JCC): the first order denied Claimant's motion to approve two attorney's fee retainer agreements—one agreement provided for payment of a $1,500 retainer by Claimant's union, the Fraternal Order of Police Lodge 40(FOP), and a second agreement provided that Claimant would pay her attorney an hourly fee once the $1,500 is exhausted—and the other order on appeal determined that Claimant failed to establish she sustained a compensable injury. Claimant challenges the constitutionality of sections 440.105 and 440.34, Florida Statutes, which limit attorney's fees as applied to her. She argues these provisions infringe on her First Amendment rights protected under the United States Constitution.

We hold that the challenged provisions violate Claimant's First Amendment guarantees of free speech, freedom of association, and right to petition for redress. For the reasons that follow, we reverse the appealed orders, and remand for a new hearing on the motion for approval of the retainer agreements and on Claimant's petitions for benefits.

Factual and Procedural Background

Through counsel, Claimant filed two petitions for benefits. The first petition alleged she was exposed over time to chemicals related to methamphetamine production, which resulted in her becoming disabled on August 3, 2011. The second petition alleged she was exposed to an intense smell that prevented her from conducting any further investigation regarding a shoplifting case. The Employer/Carrier (E/C) filed Notices of Denial regarding both petitions, disputing occupational causation of Claimant's condition. Claimant voluntarily dismissed those petitions, and her attorney withdrew as counsel of record.

Thereafter, two retainer agreements were signed in this matter—one between Bichler, Kelley, Oliver & Longo, PLLC (the Firm) and the Fraternal Order of Police (FOP), and one between the Firm and Claimant. The agreement with the FOP provided that the FOP would pay the Firm a flat fee of $1,500 to represent Claimant. In the retainer agreement signed by Claimant, she stated she understood the $1,500 fee paid by the FOP would not be “sufficient compensation” if the Firm expended more than 15 hours representing her; accordingly, Claimant agreed to pay her attorney an hourly fee for all attorney time expended beyond 15 hours. Claimant acknowledged in the agreement that the Workers' Compensation Law prohibits such a fee arrangement, and specifically waived those statutory prohibitions. Claimant further acknowledged that the Firm advised her of the extremely difficult legal burden she must carry in order to prevail, and stated she was entering into this agreement with the understanding she may not prevail.

In July 2013, Claimant's attorney filed two more petitions, each alleging a chemical exposure during an investigation, and in each instance seeking compensability of the exposure along with an award of attorney's fees and costs. The E/C filed a response, again asserting that these claims were the same that had previously been denied, and again disputing occupational causation of Claimant's condition.

In January 2014, Claimant's attorney filed a “Motion to Approve Attorney's Fee,” seeking approval of both retainer agreements. Claimant's attorney alleged that because of the extensive litigation necessary to pursue an exposure claim, “it would not be economically feasible for the undersigned to continue on a purely contingent basis with fee restrictions as contained in Florida Statute § 440.34.” The attorney certified that if the JCC denied the retainer fee, the Firm may have no choice but to withdraw.

An evidentiary hearing on the motion took place in July 2014. At the hearing, Claimant's attorney referenced the time-intensive nature of pursuing an exposure claim under the Workers' Compensation Law, asserting, “It is economically not feasible for our firm to continue to represent [Claimant] without being paid for it.” Based on the fee restrictions contained in chapter 440 and the contingent nature of the fee, Claimant's attorney argued that “it is unreasonable to ask an attorney to basically work for free.” The E/C represented that it was taking no position on the issue, because the fee request did not involve an E/C-paid fee.

After hearing argument, the JCC announced he was denying both retainer agreements as being contrary to the Workers' Compensation Law as it currently exists. In his written order, the JCC noted that the argument advanced was

not limited to the assertion that a guideline fee would be inadequate to compensate her attorney in the event she prevailed on the claim, which is the issue in Castellanos [v. Next Door Co., 124 So.3d 392 (Fla. 1st DCA 2013) ] and was also the issue in the Emma Murray [v. Mariner Health, 994 So.2d 105 [1051] (Fla.2008) ] decision. Rather, claimant argues that the contingent nature of the fee, in and of itself, is what leads to the alleged economic infeasibility. This is a new and different argument altogether. To argue that a guideline fee would be inadequate to compensate an attorney in the event the attorney prevailed on the claim is one thing; to argue that the attorney should be paid up front for time spent, without having secured any benefits ... is an entirely different proposition, and I can find no persuasive authority or reason to support it....

It is not the province of a JCC to decide whether the law is fair or reasonable.

Rather, it is the job of the JCC to apply the law as it exists. I find that the law as it currently exists does not allow for non-contingent, claimant-paid hourly fees for prosecution of a claim on the merits.

Thereafter, Claimant's attorney filed a motion to withdraw and to impress a lien based on hours expended. Claimant's attorney explained that the agreement extended to prosecution of claims on behalf of Claimant only if the contractual agreement was approved by the JCC. Further, “[t]he clear understanding between the Claimant and the undersigned counsel was that, should the contract for representation not be approved, then the undersigned counsel would have no choice but to withdraw as counsel of record.” Claimant's attorney explained that a conflict of interest now arose, because Claimant wished to pursue the claims, but her counsel's continued representation of Claimant would create a financial hardship for her counsel, “as well as an undue burden on her ability to practice law and to zealously represent her other clients if she were to be forced to remain as counsel of record on these claims.” Finally, Claimant's attorney advised that Claimant had been served with this motion to withdraw “and has indicated she does not object to same.” The JCC granted the motion to withdraw and impress lien, finding that “claimant and claimant's counsel are in a position of conflict.”

The merits hearing went forward, with Claimant appearing pro se. Claimant renewed her request that the JCC approve the retainer agreements which would allow her, and the FOP on her behalf, to retain the Firm to represent her. The JCC again advised that the Workers' Compensation Law does not permit payment of non-contingent hourly attorney's fees. Claimant's prior attorney, who was present as an observer, asked that the JCC take judicial notice of affidavits Claimant had obtained from attorneys in which they asserted they did not have time to take this case on a contingency basis. The E/C objected on grounds the affidavits were not the sort of documents that would qualify for judicial notice and were not relevant to the merits of Claimant's exposure claims. The JCC excluded the affidavits, agreeing they related to the attorney's fee question that was the subject of an earlier hearing and should have been submitted at that time.

Next, Claimant argued for entitlement to medical benefits, including ongoing care, for her two dates of accident. The E/C responded that it was Claimant's burden, as she was a law enforcement officer, to prove by a preponderance of the evidence that she was exposed to a specific level of a specific substance and that the exposure actually caused her injury. See § 112.1815(2)(a)1., Fla. Stat. (2011) (providing that first responders must prove exposure to toxic substance by preponderance of evidence). The E/C maintained there was no evidence of a specific exposure and no medical evidence linking any exposure to Claimant's condition.

Claimant was sworn in and testified regarding what occurred on the two dates of accident. She testified that she became ill after each incident and lost time from work, but was eventually released to return to work. She testified that she received some medical treatment after the second exposure. On cross-examination, she testified she had been diagnosed with Chronic Obstructive Pulmonary Disease prior to the first date of accident and had seen her personal physician on three separate...