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Now that we’ve had time to digest the shock wave of Castellanos (and the current increase of claims), I can analyze where this decision came from and why the Court decided this way.  [See my initial analysis here.]

Its quite clear going back to Emma Murray, that the Supremes were concerned with the role of the JCC.  Since the 2003 changes, the Legislature has done everything to control what and how the JCC decides claims.  From, dictating the amount of IME’s each party gets, to formulating mental injury claims, to attorney fees, the Legislature intent has been to standardize the JCC’s decisions.

A key to the unconstitutional ruling was the fact that 440.34 created an “irrebuttable presumption” that no matter the calculation when applying the fee schedule, it would always be reasonable.  This of course is a fallacy when looking at the facts of Castellanos: his attorney spent 107 hours winning a very complicated case and ended up getting paid $1.52/hour.

In the Court’s analysis, the Supremes finally ruled that fees are penalties against E/C’s to keep them honest and provided deserved benefits to Claimants.  Further, like Emma Murray, the Supremes felt the best protector of a Claimant’s interest in benefits is the JCC to weigh in on whether an attorney’s fee is reasonable or not.

This is an empowering move on the Court to take power of the allocation of not just fees but benefits too from the Legislature and put it back into the hands of the JCC.  The Lee Engineering standard (founded in Florida Bar Rule 4-1.5) allows the Judge to weigh the reasonableness of a fee.  The JCC still must start with a fee schedule calculation and weight it against the hourly fee.  The Supremes defending this ruling by advocating the Lee Engineering standard also protects E/C’s from excessive fees.  But, the JCC must utilize it.

In the end, the Supremes saw that the Legislature cannot take away the authority of the JCC to review a fee. . . it frustrates the purpose of the W/C scheme.

One could take this theory and apply it across the board to any section of chapter 440 where the 2003 changes limited the involvement of the JCC.   The days of the JCC simply punching buttons are over.

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I’ve received an esteemed honor before regarding this blog when Lexis Nexis named Workers’ Comp Corner one of the best blogs of 2008.  But, I am humbled by my peers bestowing upon me an AV rating, the highest an attorney can receive per Martindale Hubbell.

The AV Preeminent rating deems an attorney the highest ranking for the following qualities: legal knowledge, analytical capability, judgment, communication ability, and legal experience.  To receive this from my peers is truly special and I thank those who offered their opinion.

For more about my profile at Martindale Hubbell, click here.

A loyal reader just informed me that my email address in the “About” section is correct, but it links to my old Fowler White address. 

Just for the record, if anyone is looking to contact me, you can email me at mrabinowitz@bankerlopez.com.

Sorry for the confusion.  I just corrected the link in the “About” section.

Last week I wrote about the Parodi decision which reinforces the self help section of chapter 440.  [see s. 440.13(2)(c)]   The main thrust of my post was that the stakes are now considerably raised with such a decision.

In that case the First DCA found that should Claimant receive unauthorized treatment on his own, and prove that the treatment was compensable and medically necessary, then the doctors providing said treatment could testify in Claimant’s case in chief. 

After talking with a mediator about the Parodi case, he declared that Claimant’s no longer need to use their IME anymore.  They can just go and find a doctor to provide treatment under a letter of protection (LOP).  While I see his point, I don’t think the situation is as dire as that for Employers and Carriers. (more…)

This has been in the works for quite a few months, but it finally became official yesterday.   The entire insurance defense practice of Fowler White Boggs Banker split off to form an entirely new law firm.  This includes the Workers’ Compensation practice, of which I am proud to be part of.  

The new law firm is named Banker Lopez Gassler, P.A.  The split is completely cordial and my new firm is subleasing the same space from Fowler White.  I am literally not moving desks (not having to move is so nice!).   You can read about the split in the St. Pete Times

So, my contact information is changed and will be reflected in the “About” section of this blog.  But, you can now reach me at mrabinowitz@bankerlopez.com.  My phone number remains exactly the same. 

The bottomline the desk remains the same, the phone remains the same, and this blog will remain the same; providing you with the latest updates in Florida Workers’ Comp law and, of course, my insightful analysis. 

This is a great honor by LexisNexis, a premier research site, to have honored my little blog.  It has been my mission to break down some of the most recent legal changes to the Florida Workers Comp system into digestible articles that you can all absorb.  I thank you for your continued support and I hope to keep up the quality content that many of you have come to expect.

Feel free to click on the link below to check out the other 24 national W/C blogs:

My intention is for all those influenced by the Florida Workers’ Compensation “biosphere” to use this site for their WC inquiries.  In the coming weeks I will be posting case law updates and my own personal experiences in dealing with the always confound chapter 440 of the Florida Statutes. 

Feel free to email me any questions you have and I will do my best to answer them.   Thank you for your attention.