FLORIDA TOP CASES, powered by Dubreuil's Florida Workers' Compensation Handbook (updated 6/15/2010)

FLORIDA TOP CASES, powered by Dubreuil's Florida Workers' Compensation Handbook (updated 6/15/2010)

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Truck Owner Was Not Owner-Operator Where Transportation Company Was Responsible For Some Costs for Performance of the Owner-Operator Agreement. Claimant, the owner of a truck entered into a "Vehicle Lease Agreement" with Rinker that designated claimant as the "owner" of the truck and, in practical terms, required claimant to haul trailers arranged for and provided by Rinker.  On February 28, 2001, claimant suffered an accidental injury while performing work under the terms of the Agreement. He filed a petition for benefits against Rinker, claiming the right to receive workers' compensation medical and indemnity benefits.  Rinker denied the claim, alleging claimant was an owner-operator as described in section 440.02(15)(d)4, Fla. Stat., and that the claimant was excluded from coverage under chapter 440.  The JCC found that Rinker was responsible for, and incurred certain costs applicable when claimant operated his tractor on Rinker's business (costs related to bodily injury, property damage liability, and cargo insurance). Notwithstanding this finding, the JCC concluded such an arrangement had no legal significance and denied all compensation, reasoning claimant was an owner-operator.  Claimant appealed.  The appellate court reversed.  Under § 440.02(14)(d)(4), the exclusion of coverage was conditioned upon a showing that the owner-operator was required to furnish all costs for performance of the owner-operator agreement. The company had not shown that the condition was met. Therefore, the claimant was not, at the time of his accident, a statutory owner-operator, as described in § 440.02(14)(d)(4). [see Reynolds v. C S R Rinker Transport, 2010 Fla. App. LEXIS 3862 (Fla. 1st DCA 2010)].

Neither Nonprofit Job Assistance Center Nor Its Service Provider Were Employer of Tree Trimmer. Claimant sought workers' compensation benefits from a nonprofit job assistance center and its service provider. The judge of compensation claims dismissed the claimant's petition and the claimant appealed, contending the center and its service provider were his "employers" under § 440.02(16)(a), Fla. Stat.  When the claimant called the center, he was referred to an individual who wanted a tree trimmer. The claimant was injured on the job later that day. He contended that the center and its service provider were "similar agents" under § 440.02(16)(a), which defined "employer" to include "employment agencies, employee leasing companies, and similar agents who provide employees to other persons." Based on the dictionary definition of "employment agency" and the definition of "employee leasing company" in § 468.520(4), (5), Fla. Stat. (2006), the appellate court held that the key features needed to be classified as a "similar agent" under § 440.02(16)(a) included a financial arrangement between the agency and either the end employer/client or the employee, as seen in employment agencies, or the use of the entity's own employees by the end employer/client, as seen in employee leasing companies. Neither the center nor the service provider met these criteria. Neither was paid for its services by employees or employers, the claimant was not paid by either the center or the service provider, and neither the center nor the service provider had any control over the terms and conditions of the ultimate employment relationship nor did they receive any direct benefits from the work claimant was doing. The JCC’s decision was accordingly affirmed. [see Bolanos v. Workforce Alliance, 23 So. 3d 171, 2009 Fla. App. LEXIS 15999 (Fla. 1st DCA 2009)].

Where Medical Conditions Are Not Readily Observable, Claimant Must Show Industrial Causation by Expert Medical Evidence. The employer sought review of the decision of the Judge of Compensation Claims (JCC) which found in favor of the employee and awarded her workers' compensation benefits. The employee cross-appealed the calculation of her average weekly wage.  Because the appellate court concluded that the employee failed to introduce any medical evidence establishing occupational causation of the injuries for which she sought compensation, the appellate court reversed on the employer's first point raised, rendering moot the remaining points raised on appeal and cross-appeal. Because the degenerative conditions in the employee's lower back and right hip were not readily observable, she was required to introduce medical evidence of occupational causation under § 440.09(1), Fla. Stat. (2001), which she failed to do. Proof of occupational causation for conditions which were not readily observable required the introduction of medical testimony. [see Federal Express Corp. v. Boynton, 2010 Fla. App. LEXIS 3863 (Fla. 1st DCA 2010)].

Firefighter’s Brief Hospitalization Related to Atrial Fibrillation Was Sufficient Temporary Disability Under § 112.18(1), Fla. Stat.  Claimant, a firefighter, responded to a call, and afterwards experienced elevated blood pressure and an irregular heart beat.  He was admitted to a hospital where he underwent tests that showed he had atrial fibrillation (AF)--a form of heart disease--and that he also had essential hypertension.  He remained in the hospital for a day and a half.  He subsequently sought workers’ compensation benefits and sought to take advantage of § 112.18(1), Fla. Stat., which affords certain categories of public employees totally or partially disabled by tuberculosis, heart disease, or hypertension a rebuttable presumption that the condition was suffered in the line of duty. The JCC found the facts were insufficient to establish that Claimant was totally or partially disabled by AF, that specifically, Claimant was not “actually incapacitated” from performing his work activities as a result of his atrial fibrillation condition.  The JCC reasoned that Claimant's hospitalization for evaluation, diagnosis, and treatment for AF did not equate to total or partial disability, as required by section 112.18(1).  The appellate court reversed, noting the close similarity between the instant case and that of Carney v. Sarasota County Sheriff’s Office, 2009 Fla. App. LEXIS 19500, 34 Fla. L. Weekly D 2563 (Fla. 1st DCA Dec. 15, 2009), discussed below.  Claimant’s hospitalization, due to his condition, established that he was disabled from performing his firefighting duties.  Accordingly, Claimant was temporarily disabled under the terms of § 112.18(1), Fla. Stat. [see Martz v. Volusia County Fire Servs., 2010 Fla. App. LEXIS 3353, 35 Fla. L. Weekly D 593 (Fla. 1st DCA 2010)].

Carrier On the Risk at the Time of Last Injurious Exposure is Responsible for Claim. The initial county insurance carrier (IC) sought review of a judgment from a circuit court which declared that the IC and not the subsequent county insurance carrier (SC) was the workers' compensation carrier that was responsible to pay benefits for an occupational disease suffered by a county employee pursuant to § 440.151(5), Fla. Stat. (1999). The county employee, a nurse, was exposed to Hepatitis C during her work at a county hospital. She was diagnosed with the disease five years later, but she did not become disabled until a year thereafter. The employee filed a claim for benefits after she was no longer employed by the county. The county contested the claim, but it was required to pay the benefits. The county then filed suit, seeking a determination of which insurance carrier was required to provide coverage for the claim. In resolving competing summary judgment motions, the trial court determined that the IC was responsible for payment of benefits, as it was the carrier on the risk when the right to compensation accrued. On appeal, the court held that the trial court failed to comply with the clear and unambiguous language of § 440.151(5), and it erroneously relied on § 440.151(1). As the employee was last injuriously exposed to the disease when the SC was the insurance carrier, it was responsible for the benefit payments. [see Fidelity and Guar. Ins. Co. v. Polk County, 20 So. 3d 383, 2009 Fla. App. LEXIS 11324 (Fla. 2nd DCA 2009)].

Purpose of Examination Was Solely For Evaluation: It Would Not Revive Claim If Statute of Limitations Had Run. The worker suffered a compensable accident, underwent back surgery, and was paid TTD benefits. The worker left his employ with the employer to work for a different employer.  For an unexplained reason, the employer continued to pay TTD benefits. The employer later moved for repayment of all TTD benefits paid during the period of subsequent employment pursuant to § 440.15(12), Fla. Stat. (2004). The judge granted the motion, but noted that the worker would likely be entitled to a permanent impairment rating, that any income impairment benefits the worker would have been entitled to could be used as a credit against the overpayment of TTD benefits, and the JCC accordingly ordered the employer to schedule an evaluation with the worker's surgeon to determine the MMI date and PIR.  The employer asserted that the statute of limitations (SOL) had run on the claim and that complying with the order would result in a revival of the otherwise expired claim.  The appellate court disagreed, holding that if the purpose of the examination was solely for evaluation, it did not constitute remedial care for SOL purposes. Thus, the evaluation would not revive the claim, if, in fact, the SOL had expired. Whether the evaluation would result in a credit against overpaid TTD benefits was speculative because no PIR had been determined. Because any harm the JCC's order might cause could be remedied on appeal, the employer was not entitled to a writ of certiorari.  The petition was denied. [see Pepsi Bottling Group, Inc. v. Underwood, 8 So. 3d 1260, 2009 Fla. App. LEXIS 4312 (Fla. 1st DCA 2009)].

Injured Workers’ Use of False Social Security Number at Hospital, at Pharmacy, and to Claims Investigator Held Sufficient to Disqualify Him From Benefits. Claimant sought workers' compensation benefits from his employer and its insurer. A judge of compensation claims denied benefits on the ground that the claimant had violated § 440.105, Fla. Stat. (2006) by providing a false Social Security number shortly after the accident when he was taken by ambulance to the hospital, at a pharmacy when obtaining prescription medication, and on the telephone in an interview between the claimant and the employer and carrier’s investigator. The appellate court affirmed, stating that the evidence supported these findings. Although the claimant asserted that he presented the number solely as a means of identification and lacked the requisite intent to obtain benefits, this was a question of fact for the JCC to determine, and the JCC simply did not accept his account. The claimant also argued that the real reason the employer and carrier refused to provide benefits was that he was an undocumented alien.  The appellate court acknowledged that illegal aliens were covered by the Florida Workers' Compensation Law pursuant to § 440.02(15)(a), Fla. Stat. (2006); however, they had to comply with the statute to obtain its benefits. The statute required everyone to be truthful, responsive, and complete. [see Arreola v. Administrative Concepts, 17 So. 3d 792, 2009 Fla. App. LEXIS 11323 (Fla. 1st DCA 2009)].

Claimant’s Injuries Caused by Intoxication Were Not Compensable. Claimant, a carpenter, contended that he slipped and fell on a pile of lumber, injuring his head, back, and neck while working for the Employer.  A coworker and supervisor testified that on the morning of the accident, Claimant had been severely impaired by alcohol, drugs, or a combination of the two.  When the supervisor informed the Employer of Claimant’s condition, the Employer told the supervisor to fire Claimant and indicate to Claimant that he should wait at the work site, which was remotely located, for a ride home.  Claimant had no means of transportation and relied upon the Employer for transportation to and from the work site.  Trial testimony indicated the accident occurred after Claimant had been fired, but before the Employer arrived to remove him from the work site and that despite the supervisor’s instructions, Claimant had attempted to continue working, which led to his accident.  The judge of compensation claims determined that Claimant did not sustain an injury arising out of work performed within the course and scope of the employment.  Alternatively, the JCC determined that the injury was the result of Claimant’s intoxication.   The appellate court affirmed.  The court indicated that the employment relationship did not immediately end with the firing, that under appropriate circumstances, it would be possible to sustain a compensable injury after being fired.  Here, however, the JCC also determined that the injury was caused by intoxication.  Competent evidence supported that finding. [see Thomas v. Bircheat, 16 So. 3d 198, 2009 Fla. App. LEXIS 11006 (Fla. 1st DCA 2009)].

Illegal Alien Establishes “Wages” By Filing Admittedly Incomplete Income Tax Returns. Noting important differences between the facts in the instant case and those in Fast Track Framing, Inc. v. Caraballo decision, 994 So. 2d 355 (Fla. 1st DCA 2008), wherein the court held that in order to demonstrate that a claimant's income constitutes "wages," the claimant was required to show that he reported his wages for federal income tax purposes, the First District Court of Appeal for the State of Florida found that the “reported for federal income tax purposes” requirement contained in the definition of “wages” [§ 440.02(28), Fla. Stat.] is met where an illegal alien files a tax return informing the IRS of the wages that he or she earned with the employer for whom the worker was working at the time of injury.  That the worker was illegally working, had no actual social security number, and did not know whether the employer had reported and withheld taxes from his income was not relevant to the issue of workers’ compensation benefits. [see Rene Stone Work Corp. v. Gonzalez, 2010 Fla. App. LEXIS 543, 35 Fla. L. Weekly D 230 (Fla. 1st DCA 2010)].

Burden is On Claimant to Show That Mandatory Informational Letter Regarding  Supplemental Income Benefits Rights Was Not Received. An employee challenged the JCC's order denying supplemental income benefits under § 440.15(3)(a)-(d), Fla. Stat. (2002) because of his failure to perform a required job search. The JCC had found that the claimant suffered a 24 percent impairment and sustained injuries which prevented the employee from performing his prior job, but supplemental benefits were denied because the claimant failed to demonstrate a good faith job search, as required by § 440.15(3)(b)(1)(c).  The employee contended that the JCC erred by concluding that the employee had the burden of proving that the employer failed to send an informative letter advising the employee of his obligation to perform a job search to establish entitlement to supplemental income benefits, and by not excusing the job search requirement.  Because the employee had the burden of establishing his entitlement to supplemental income benefits and because he failed to introduce into evidence that he had failed to receive the mandatory informational letter, the appellate court affirmed. The appellate court indicated that the statutory provision at issue, § 440.15(3)(b), Fla. Stat. (2002), contained no language to suggest that an e/c carried the burden of proving a claimant's knowledge of a job search requirement. Instead, it set forth three elements necessary to establish entitlement to the benefits: a permanent impairment rating of 20% or greater; the employee had not returned to work, or had returned to work but earned less than 80% of his average weekly wage; and the employee had in good faith attempted to obtain employment commensurate with his ability to work.  The court observed that as a rule, the burden of persuasion was with the party who initiated the proceeding, and remained with that party to establish the material elements of recovery.  This court observed that on numerous occasions it had held that a claimant had the burden of proving his entitlement to the benefits claimed.  According to the court, the appeal could have been avoided by a single question posed by the employee's counsel: Did you receive the letter?  Since the employee had failed to introduce such evidence, the judgment was affirmed. [see Meneses v. City Furniture, 2010 Fla. App. LEXIS 3857 (Fla. 1st DCA 2010)].

Claimant’s Failure to Look For Work Found Sufficient to Sever the Causal Connection between Wage Loss and Industrial Injury. Claimant sustained an injury on October 4, 2006, while working as a repairman for the employer (E/C). The E/C accepted the accident as compensable and referred Claimant to a physician for treatment. Claimant was eventually released to medium-duty work and, in December 2006, Claimant resumed working for the E/C in a modified medium-duty position. Subsequently, on February 16, 2007, the E/C terminated Claimant for economic reasons. Claimant did not work in any capacity after the termination.  Claimant sought TPD benefits and the E/C contended Claimant’s wage loss was not causally related to his workplace injury.  The JCC agreed, finding that Claimant had made no meaningful attempts to return to work and that his testimony was “evasive and devoid of credibility.”  The appellate court affirmed, noting that although a job search was not an absolute prerequisite for an award of workers' compensation benefits, it was still necessary for the claimant to show a causal connection between the industrial injury and a resulting loss of earnings, and an unsuccessful job search could be a relevant factor in determining whether the claimant had satisfied that burden.  Sufficient evidence supported the JCC’s conclusions. [see Pierre v. R & S Assembly Inc., 2010 Fla. App. LEXIS 3853 (Fla. 1st DCA 2010)].

Subjective Pain Complaints Do Not Defeat Referral to Specialist; Referral Decision Based on Medical Necessity. Claimant suffered a workplace injury that the employer and carrier accepted as compensable. The E/C authorized treatment at an occupational health clinic, where claimant was examined on several occasions, alternately by a doctor and a nurse. Unable to determine an objective basis for claimant's continued pain complaints, both health care providers recommended an orthopedic evaluation. Relying on the nurse's written statements that claimant's pain complaints were subjective, the E/C refused to authorize the orthopedic referral, contending there were no objective relevant medical findings justifying the evaluation as required by section 440.09, Florida Statutes (2007). The judge agreed with that argument and denied claimant's request for the evaluation.  The appellate court found error.  § 440.09 applied to compensability of pain or subjective complaint.  The statute was inapplicable in determining whether a claimant was entitled to a specialist evaluation recommended by his or her authorized treating physician.  Entitlement to such a referral was governed by § 440.13(2)(a), Fla. Stat., which required a showing of medical necessity.  The E/C had not contested the medical necessity of the referral. [see Morrow v. Sam’s Club, 17 So. 3d 763, 2009 Fla. App. LEXIS 10488 (Fla. 1st DCA 2009)].

Judge May Not Rewrite Essential Terms of Agreement Related to Medicare Set-Aside. Claimant sought review of an order of a judge of compensation claims which granted the employer/carrier's (E/C) motion to compel the claimant to repay seed money to a Medicare Set-Aside Account (MSA) established by the parties' earlier settlement agreement (agreement).  The agreement stated that the claimant, and not the E/C, was responsible for administering the MSA and provided that the sums allocated for the MSA (which included "seed money") were final, not subject to change, and not dependent on the approval of the Center for Medicare and Medicaid Services (CMS). The E/C alleged that the sums projected for deposits into the MSA were deficient, and sought to compel the claimant to reimburse the alleged "overpayment" of seed money, so that the E/C could buy an annuity it had promised to fund under the agreement. The appellate court found that the JCC improperly rendered essential terms of the agreement void and that the JCC's order constituted an impermissible rewrite of the agreement. Nothing in the agreement required the claimant to contribute to the E/C's primary responsibilities under the agreement. The agreement's unambiguous language provided that the annuity amounts were not subject to change and were not to be affected by actions of CMS. Under the agreement, the claimant was solely responsible for satisfying CMS' requirements for administration of the MSA, and she was free to resolve any existing dispute without the E/C's involvement.  The decision was reversed and the case was remanded for further proceedings. [see Ferreira v. Home Depot, 12 So. 3d 866, 2009 Fla. App. LEXIS 7201 (Fla. 1st DCA 2009)].

Interest and Penalties Allowed Where They Were Part of Original Agreement and Employer’s Payment of Attorney’s Fees Pursuant to Order Was Not Timely. Claimant, represented by counsel, entered into a washout settlement agreement (Agreement) which provided, in relevant part, for a settlement of the case in its entirety for the sum of $200,000.00, inclusive of attorney fees and costs.  The Agreement was contingent upon carrier approval and called for the execution, by Claimant, of a general release and waiver.  On Oct. 15, 2007, the JCC issued an order approving attorney’s fees.  The order provided that the entire settlement was subject to penalties and interest if payment was not rendered in a timely fashion.  On Nov. 20, 2007, the E/C moved to vacate the October 15 Order, arguing it was never forwarded to the E/C or its counsel, and that Claimant had not yet executed a release as required as a condition precedent to the settlement agreement.  On the same day, Claimant executed a release, which the E/C received on Dec. 5, 2007.  On Dec 5, 2007, the JCC summarily denied the E/C's motion to vacate and the E/C did not appeal. The settlement checks were sent on Dec. 4 and 5, 2007. Thereafter, Claimant filed a petition for benefits seeking penalties and interest for the late payment.  The JCC denied penalties and interest, finding in relevant part that Claimant’s execution of a release was a condition precedent to the Agreement, the payment was not late, and despite the Oct. 15 Order, penalties and interest were prohibited by § 440.20(11)(c). On appeal, Claimant argued: (1) the payment was late, penalties and interest were negotiated as part of the Agreement, the E/C did not argue the parties had not negotiated penalties and interest, and penalties and interest were awarded by the October 15, 2007, order. Second, Claimant argued his execution of a release was not a condition precedent. Third, Claimant argued the JCC's finding the E/C had no notice of the October 15, 2007 order was not supported by competent, substantial evidence. The appellate court reversed, holding that since the Oct. 15 Order was not vacated within 30 days, it became final and the term that required penalties and interest on late payment was, therefore, binding.  The court indicated that under § 440.20(11)(c), Fla. Stat. (2007), payment of the lump-sum settlement amount must be made within 14 days after the date the judge of compensation claims mails the order approving the attorney's fees.  Here, the Oct. 15 Order approving attorney's fees was mailed Oct. 17, 2007 and payment was not made until Dec. 4 and 5, 2007, more than 14 days later.  As to the release that was to be signed by Claimant, the appellate court held that the Agreement did not expressly condition formation of the Agreement on the execution of the release. In contrast, the parties used express language to make excess carrier approval a condition precedent. The JCC, therefore, erred in ruling that execution of the release was a condition precedent.  The court also indicated that E/C had notice as the certificate of service showed the order was mailed, and the E/C did not show that it was not received. Finally, res judicata barred any finding in that the E/C lacked notice of the attorney's fees order.  [see Raban v. Federal Express, 13 So. 3d 140, 2009 Fla. App. LEXIS 7200 (Fla. 1st DCA 2009)].

Judge of Compensation Claims Must Make Findings As to Willfulness of Failure to Submit to Discovery Before Striking Defenses. Claimant had sought benefits and the claim was denied by the employer, Lincoln Associates.  Claimant noticed the deposition of Lincoln Associates on a particular date, but its representative failed to appear.  Following a motion to compel, the JCC ordered Lincoln to submit to a deposition and reserved jurisdiction for the imposition of sanctions, including the possibility of striking defenses, should Lincoln fail to appear a second time.  When Lincoln again failed to appear for a scheduled deposition, claimant moved to strike Lincoln’s defenses and for sanctions. The JCC summarily struck Lincoln’s defenses and Lincoln appealed.  The appellate court reversed, finding that the JCC had failed to make any findings of willfulness on the part of Lincoln in failing to submit to discovery. [see Lincoln Assoc. & Constr., Inc. v. Wentworth Constr. Co., Inc., 2010 Fla. App. LEXIS 120, 35 Fla. L. Weekly D 149 (Fla. 1st DCA 2010)].

Employer Not Due Award of Costs Where It Showed Claimant Had Voluntarily Limited His Income For Five Days of Four Month Period. Claimant sought TPD benefits from December 17, 2008, through April 4, 2009. The judge of compensation claims granted the claim for all but five days of that period, because the evidence showed the Claimant voluntarily reduced his income during that short period of time. The employer/carrier argued that because it prevailed on its affirmative defense as to those five days, it was entitled to an award of costs under section 440.34(3), Florida Statutes. The appellate court affirmed.  The employer/carrier’s affirmative defenses were that during the entire three-and-a-half month period at issue, claimant had voluntarily limited his income by refusing light duty employment within his restrictions and that he had failed to look for other employment.  Except for the five-day period, the employer/carrier failed to meet its burden.  Under these circumstances the appellate court could not say that the JCC abused her discretion. [see Sandvik, Inc. v. Decoursey, 2010 Fla. App. LEXIS 4174 (Fla. 1st DCA 2010)].

Order Requiring Claimant to Appear at Exam by Expert Medical Advisor Did Not Constitute Irreparable Harm. A judge of compensation claims ordered the worker to attend an examination with an expert medical advisor (EMA) and the worker appealed, contending that the judge’s action represented a departure from the essential requirements of the law and would cause irreparable harm that could not adequately be remedied by appeal.  The appellate court held that the worker had failed to demonstrate that the order requiring attendance with an EMA would cause harm that couldn’t later be addressed on appeal.  The court noted that a prior decision had ruled that requiring a claimant to attend a functional capacity evaluation that did not meet the specifications set forth by the treating physician did not establish irreparable harm. [see Taylor v. TGI Friday’s, Inc., 16 So. 3d 312, 2009 Fla. App. LEXIS 13123 (Fla. 1st DCA 2009)].

Discharged Attorney Entitled to Some Sort of Quantum Meruit Share of Fee in Spite of Fact that Discharge Occurred Before Actual “Securing” of Benefits. An attorney sought review of a decision of the judge of compensation claims denying him the right to any attorney's fees out of his former client's recovery in a worker's compensation case. The attorney represented the client from September 2007 through May 16, 2008, by providing legal services with the aim of securing workers' compensation benefits. On Friday, May 16, 2008, the employer/workers' compensation carrier offered $ 7,500 to resolve the case. Before the offer was accepted, the client discharged the attorney and hired a new attorney. Three days later, the new attorney settled the case for $ 10,000. The original attorney filed a charging lien on the settlement proceeds for the value of services provided prior to discharge, and requested an evidentiary hearing. The JCC denied the attorney's entitlement to fees under a quantum meruit theory, concluding that because the attorney did not "secure" any benefits, no fees were due under § 440.34(4), Fla. Stat. (2003). The court held that although the new statute limited the amount of attorney's fees that could be paid based on the amount of benefits secured, it did not, either expressly or by implication, suggest that the Legislature intended to abolish a discharged attorney's right to obtain an equitable quantum meruit share of the recovery by way of a charging lien.  The court remanded the case to the JCC to make the appropriate determination as to whether the attorney was entitled to a quantum meruit charging lien and the appropriate amount.  [see Rosenthal, Levy & Simon, P.A. v. Scott, 17 So. 3d 872, 2009 Fla. App. LEXIS 13672 (Fla. 1st DCA 2009)].

Twelve-Year Delay In Filing Attorney’s Fee Petition Should Not Have Resulted in Dismissal With Prejudice for Failure to Prosecute. In 1996, an attorney represented a claimant at a mediation, which resulted in a joint stipulation. Pursuant to the stipulation, the employer agreed to pay certain benefits and jurisdiction was reserved "for any attorney's fee due and owing in conjunction with the claim." Twelve years later, the employer filed a motion to dismiss all pending claims for attorney's fees for failure to prosecute. Shortly thereafter, the attorney filed a verified fee petition and affidavit seeking fees pursuant to the 1996 stipulation.  The JCC determined that she had authority to dismiss the fee petition pursuant to § 440.25(4)(i), Fla. Stat., because the attorney had failed to prosecute his claim.  On appeal, the appellate court held that the one-year time period found within the statute was not a bar since less than one year had passed between the time the attorney filed his fee petition and the time a hearing was held to address it.  Moreover, the section did not allow for dismissal with prejudice.  Furthermore, the rule that supported the cases relied upon by the JCC had been repealed.  Finally, the court indicated that the doctrine of laches did not apply. [see Vassallo v. Goldwire, 18 So. 3d 670, 2009 Fla. App. LEXIS 13573 (Fla. 1st DCA 2009)].

Attorney’s Fee Motion Denied Where Attorney Failed to Provide Documentation to Support Claim That Benefits Were the Result of His Efforts. The attorney of a workers' compensation claimant sought to recover an attorney’s fee in the amount of $14,000, based on the statutory percentage of the benefits the claimant obtained.  The employer and carrier agreed to the fee, but the stipulation the parties submitted did not contain the information required for approval by the judge of compensation claims. The judge directed the attorney to submit further documentation in support of the motion or, in the alternative, to schedule the matter for hearing. The attorney did not provide the information requested nor did he respond to the memorandum. The JCC then denied the fee motion, finding that that there was no evidence that any of the benefits were obtained for the claimant through the efforts of counsel.  The attorney appealed, contending that the judge should not have denied the motion without setting a fixed time for providing the necessary documents.  The appellate court disagreed and affirmed.  Noting that the judge had asked for the documentation on three separate occasions, the court of appeal held that the judge had authority to require the attorney to submit evidence in support of the motion, and he correctly denied the motion on the ground that the evidence had not been presented. The attorney did not prove that the benefits the claimant obtained were secured as a result of the legal services he provided. It would have been clear to any lawyer that the requested documentation was to be presented immediately. The judge could not have complied with his obligations under § 440.34(2), Fla. Stat. (2002) without the documentation he repeatedly asked the attorney to provide. [see Richard E. Zaldivar, P.A. v. Shaboun, 19 So. 3d 397, 2009 Fla. App. LEXIS 13122 (Fla. 1st DCA 2009)].

Attorney’s Fee Award of $3,860 for Securing $201.44 in Medical Mileage Reimbursement is Affirmed. In a per curiam decision (two judges wrote concurring opinions; one dissented), the appellate court affirmed an award of attorney’s fees in the amount of $3,860 for securing reimbursement of medical mileage in the amount of $201.44.  The claimant argued that the award should have been larger and that the judge of compensation claims unilaterally reduced the hours expended based on non-record evidence.  The court indicated that the amount sought by claimant, $7,890, was “clearly excessive and unconscionable, that if the matter were to be remanded, the employer/carrier could easily introduce evidence that a reasonable fee would not exceed $3,860. [see Jackson v. Ryan’s Family Steak House, 2009 Fla. App. LEXIS 19986, 34 Fla. L. Weekly D 2615 (Fla. 1st DCA 2009)].

Attorney Fee Award Reversed as Inadequate Where JCC Placed Too Much Emphasis on Customary Hourly Rate in Locality. Claimant sought review of an order awarding attorney fees based on the customary hourly rate in the area, rather than the fee schedule set out in § 440.34(1), Fla. Stat.  The judge of compensation claims considered the factors listed in § 440.34(1), concluding that two of those factors--the amount involved and benefits obtained, and the contingent nature of the fee--were positive; that only one factor--the fee customarily charged in the area--was negative; and that the rest were neutral. She determined that a fee based on the statutory fee schedule would amount to $ 35,367.55, or roughly $ 643.00 per hour.  Indicating that such a fee would result in an hourly rate "higher than is typically awarded in the district," the judge concluded that the presumptive statutory fee would be inappropriate. Instead, she awarded $ 200.00 per hour for 35 hours, resulting in a fee of only $7,000.00.  The appellate court reversed, observing that the outcome in the case was controlled by Alderman v. Florida Plastering, 805 So. 2d 1097 (Fla. 1st DCA 2002).  The court indicated that the presumptive attorney's fee authorized by § 440.34(1) is a contingent fee based on the value of the benefits obtained; the JCC should not unduly rely on the customary hourly rate in departing from the statutory formula. The court concluded that while a judge might properly consider the fee customarily charged in the locality for similar legal work, it was unlikely that this factor could provide the sole basis for a departure, particularly if the customary fee was based on an hourly rate because a decision to displace the statutory calculation with a fee based on hourly rate would effectively defeat the contingent fee arrangement implemented by the statute. [see Smith v. Gulf Coast Hosp., 2010 Fla. App. LEXIS 4178 (Fla. 1st DCA 2010)].

Court Denies Attorney Fee Agreement as Unreasonable; Attorney Had Already Been Adequately Compensated. Claimant was severely burned and sustained multiple fractures to his lower extremities and vertebrae in a compensable accident.  The employer provided medical treatment, including multiple surgeries.  In addition to the medical treatment, Claimant sought attendant care by his spouse.  After two hearings, the judge of compensation claims awarded $558,828.64 in attendant care benefits.  Following an appeal and a remand, the parties agreed that the E/C would pay a total of $491,762.39 in attendant care benefits. The judge then ordered the E/C to pay the claimant's lawyer $187,515 for securing those attendant care benefits.  Subsequently, claimant and his lawyer sought approval of a "Stipulation on Employee-Paid  Attorney's Fees and Costs." The stipulation provided that claimant would pay his lawyer $ 62,749.27 in appellate attorney's fees, for 278.89 hours of appellate work at $ 225 per hour, and that this fee was reasonable because the lawyer had preserved $381,659.04 in benefits. Concluding that he lacked jurisdiction to approve the fee, and that section 440.34(5), Florida Statutes, granted authority to approve only an employer/carrier-paid appellate attorney's fee, not an appellate attorney's fee paid by a claimant, the judge of compensation claims denied the request. He also concluded, in the alternative, that the stipulated attorney's fee was unreasonable because claimant's lawyer had already been compensated for securing the attendant care benefits.  The appellate court found, inter alia, that its prior denial of the claimant's motion for an appellate attorney's fee under § 440.34(2), Fla. Stat. (1983) did not bar a separate attorney's fee agreement pursuant to subsection (1). Accordingly, the judge of compensation claims erroneously concluded that he lacked jurisdiction to consider the stipulation. Nevertheless, competent, substantial evidence supported the judge's conclusion that the stipulation was unreasonable because claimant's lawyer had already been fully compensated for all benefits actually secured for claimant under § 440.34(2).  The order was affirmed. [see Capps v. Industrial Blowpipe, 8 So. 3d 466, 2009 Fla. App. LEXIS 3379 (Fla. 1st DCA 2009)].

Employer Who Denied Entitlement to Further Benefits to Employee Based on Employee’s Use of Fake Social Security Card is Not Estopped in Tort Suit From Claiming Immunity. Marquez was injured in an accident while employed by Fly & Form (the employer).  He received some workers’ compensation benefits as well as temporary disability payments, medical bills and indemnity benefits.  The employer learned that Marquez had used a fake social security number on his employment application and W-4 form.  It then denied additional workers’ compensation benefits.  Marquez filed suit against the employer, who contended it was immune from tort liability pursuant to chapter 440 of the Florida Statutes.  Subsequently, the workers’ compensation benefits were resumed and the employer moved for summary judgment based on its immunity from suit as Marquez's employer.  The trial court entered summary judgment against the employer, finding that it was estopped from asserting the exclusivity defense.  The appellate court, citing Coca-Cola Enters., Inc. v. Montiel, 985 So. 2d 19 (Fla. 2d DCA 2008), reversed, holding that the employer was not estopped from utilizing the defense. [see Fly & Form, Inc. v. Marquez, 19 So. 3d 403, 2009 Fla. App. LEXIS 12827 (Fla. 3rd DCA 2009)].

Employer That Denied Injury Arose Out of and In the Course of Employment Is Equitably Estopped from Using Exclusivity Defense in Subsequent Tort Action. An employee sought workers' compensation benefits from the employer for injuries sustained while lifting concrete blocks. The employer denied the claim in its entirety, contending that the employee's condition was not the result of an injury by accident arising out of and in the course and scope of employment. Subsequently, the employee voluntarily dismissed his workers’ compensation petition and filed a negligence action against the employee. In his complaint, the employee alleged that the employer had denied his workers' compensation claim on the basis that the accident and injuries did not arise out of his employment and were not covered by workers' compensation. The employer moved for summary judgment on exclusivity grounds and the trial court denied its motion.  The appellate court affirmed, finding that an employer may be equitably estopped from raising the workers' compensation exclusivity defense if it has denied that the injury occurred in the course and scope of the employment.  Here the employer had asserted an inconsistent position and the employee had relied upon the employer's representation and dismissed the workers' compensation claim. [see Coastal Masonry, Inc. v. Gutierrez, 2010 Fla. App. LEXIS 1355, 35 Fla. L. Weekly D 342 (Fla. 3rd DCA 2010)].

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