Attorney’s Fees


Well they did it.  And, I am back.  After a self-imposed exile, I return to the Workers’ Comp Corner to cover the biggest decision in Florida Workers’ Comp Law since Emma Murray.

It took over 18 months but Supremes overturned the 2009 version of s. 440.34 and declared it unconstitutional.  That decision, Costellanos v. Next Door Co.  can be read here and the entire majority opinion doubles down on the themes from Emma Murray.   In the end, the Court brings back hourly Claimant attorney fees (via the Lee Engineering Standard) and removes the irrebuttable presumption that the mandatory fee schedule is “reasonable.”

The challenge to this thing has been long and coming.  The Castellanos decision itself is long and detailed that weaves the principle of Carrier paid fees as part of the overall fabric of W/C.    Make no mistake, this Court wants the Legislature to know there can be no quick change to 440.34 that will fix this by simply pulling out a marker and crossing out the word “reasonable”.  Per the Court, hourly fees provide access to Florida courts, a constitutional right.

There is so much to digest on this decision, I will have to break it down in more than one post throughout the week.   The consequences of this decision will be the certain increase in claims and Petitions for Benefits for smaller benefits.

Once again, you can read the Castellanos decision here.

I am happy to be back and I look forward to sharing my analysis with you.

Mike

Wow. This one is a doozy.

For years, the assumption about the Statute of Limitations (SOL) was “form over substance.”  A Claimant has 2 years from the date of accident and then 1 year from the last date of provided benefits to file a PFB.  If he fails to comply within those time periods, he is barred forever from bringing a claim against the E/C.  This was one of the first blog entries I wrote.  You can read about the basics of SOL here.  (For a video reference, click here.)

If you read s. 440.19 (the SOL statute) not once does it mention that the SOL tolls over a claim for attorney’s fees.  The whole premise is based on giving the E/C and Claimant a ticking clock from the last date of benefits.  Attorneys fees have nothing to do with the SOL.

Except now. . . (more…)

It ended with a whimper rather than a roar. 

On Wednesday, the Florida Supreme Court, with zero fanfare, denied jurisdiction for the Kauffman appeal.  You can review the online docket here.  Just enter the case number as “SC11-661”.  This officially ends the appeal process for Kauffman.

You can read my analysis of the First DCA’s decision here and my prior analysis here.   I do not believe the Claimant’s bar was ever prepared to show the Court why a Claimant cannot find representation under the current statute.  The constitutional arguments still did not hold water. (more…)

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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If you’ve been reading this blog, you know my feelings about the fraud defense.  It is a helpful tool in an E/C’s assortment of defense strategies, but it should be used after thoughtful deliberations.  The First DCA has limited the definition of fraud in hopes to curb the rampant use at the trial court level.  Yet, the Court refused to apply a reverse penalty to E/C’s when they commit fraud.

Now, it appears there is a penalty for E/C’s who use the fraud defense and lose at trial.

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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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