Appellate Procedure


I’ve written about this before.  There is no such thing as “temporary” permanent total disability.  Once a Claimant reaches MMI, she is either PTD or not.  If she is at statutory MMI (exhausted 104 weeks of temporary benefits) then a Claimant needs to present evidence that she will be PTD when she achieves “physical” MMI from her doctors. 

Despite this clarity, the First DCA explored this issue again Matrix Employee v. Hadley, this time en banc or the all of the Court’s judges deciding on the issue.  It appeared that the Court was ready to reverse this well versed precedent. . . (more…)

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Just a quick development on Kauffman: Claimant is seeking discretionary review to the Florida Supreme Court, as of March 30.  Her attorneys are writing briefs to the Court to convince them to hear the case. 

Keep in mind, the Supremes do not have to hear the case, but the Court does have the discretion to review a decision of a District Court of Appeal that expressly construes a provision of the state or federal consititution.   Once again, the Supremes do not have a duty to hear the case, just the option to hear it.

As you know, in the Kauffman decision, the First DCA denied Claimant’s constitutional arguments based on their previous decisions of the 2003 amendments to the fee provision of Chapter 440. 

I will provide more details as I understand them.

In a sparsely written, four page order (the listing of the attorneys involved in the case seems longer than the actual opinion), the First DCA affirmed the JCC’s opinion, thereby rejecting the Claimant bar’s arguments that the 7/1/09 changes to the fee statute are unconstitutional.

You can read the entire opinion here. Analysis after the click.

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During the last Workers’ Compensation Convention in Orlando, I learned of a new constitutional test case the Claimant’s bar was appealing that dealt head on with the 7/1/09 changes to the attorney’s fee provision in s. 440.34.

And last week, in the case Kauffman v. Community Inclusions, Inc., both parties presented their case at oral arguments.  However, as with most oral arguments, the First DCA judges determined the focus of the appeal and the direction of the arguments.   You can watch the video here.

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UPDATED! I forgot to include the this link to the video of my oral arguments.  I believe you need Windows Media Player to watch.  Enjoy!

In my last blog entry, I wrote of a pending oral argument for an appeal I was handled.  I did not want to publicly comment on the issue since it was a pending matter before the First DCA.  So, allow me some space to explain what the issues were.

At issue was the amount of a Carrier paid fee to a Claimant attorney where the only efforts to secure any benefits was simply filing a Petition. (more…)

Next Tuesday at 9 am, I present my second oral argument to the First DCA.  The case is about attorney fees (no, not that case!) and what I am asking the Court to do is interpret past, but recent, case law on the subject.

I do not think it is professional to publicly discuss this case before the Court hears our arguments, but I will gladly dissect my performance on this blog when I return later that day.

For those looking for a good laugh at my expense, you can view the oral arguments at the First DCA website.  I anticipate it will be a very lively debate on a subject that everyone these days seems to have a strong opinion about.

Stay tuned.

In a welcome sign to the 21st Century, the First DCA today announced, effective September 1, the Court will only be accepting electronic filings of briefs, motions, and other pleadings.  After that date, with the exception of pro se parties, the Court will no longer accept any pleadings in hard copy, paper form.   In turn, all future orders, mandates, and opinions will be electronically distributed and no longer forwarded via US Mail.

For a detailed description, you can view the Court’s Administrative Order 10-3 here.

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