and PACKARD CLAIMS ADMINISTRATION, INC. ANSWER BRIEF
Transcript of and PACKARD CLAIMS ADMINISTRATION, INC. ANSWER BRIEF
DISTRICT COURT OF APPEALFIRST APPELLATE DISTRICTTALLAHASSEE, FLORIDA
EUGENE JACOBSON, Docket No.: 1D12-1103
Appellant, Lower TribunalCase No.: 08-028823DBB
vs.D/Accident: 09/04/2007
SOUTH EAST PERSONNEL LEASING, INC.,and PACKARD CLAIMS ADMINISTRATION, INC.
Appellees.
ANSWER BRIEF
Vanessa J. Johnson, Esquirevj ohnson@sponslerbennett . corn
Florida Bar No. 593311Sponsler, Bennett, Jacobs & Adams, P.A.Post Office Box 3300Tampa, FL 33601Telephone: 813-272-1400Facsimile: 813-272-1401Attorneys for Employer/Carrier/Appellees
This is an appeal from an Order on Claimant's Amended Motion forApproval of Hourly Retainer Agreement and Payment of $525 toClaimant's Counsel for Services Rendered to Date dated January24, 2012 and from a Final Order on Employer/Carrier's VerifiedMotion to Tax Costs Against Eugene Jacobson dated January 31,2012, both from the State of Florida, Division of AdministrativeHearings, Office of the JCC, Diane B. Beck, Sarasota District.
E-Copy Received Oct 25, 2012 4:55 PM
TABLE OF CONTENTS
TABLE OF CONTENTS ....................
TABLE OF AUTHORITIES
PRELIMINARY STATEMENT ..................
SUMMARY OF THE ARGUMENT .................
ARGUMENT
POINT 1 .......................THE '7CC DID NOT ABUSE HER DISCRETION BY AWARDINGCOSTS AGAINST APPELLANT AS THE APPLICATION OFSECTION 440.34(3), FLA. STAT. (2007) AND THEUNIFORM GUIDELINES FOR TAXATION OF COSTS IN THISMATTER WAS PROPER.
POINT II:
THE '7CC PROPERLY DENIED APPELLANT'S MOTION FORAPPROVAL OF RETAINER AGREEMENT AND PAYMENT OFSERVICES RENDERED TO DATE AS SECTION 440.34, FLA.STAT. (2007) DOES NOT PERMIT THE ATTORNEY'S FEEENDORSED BY APPELLANT.
POINT III .....................SECTIONS 440.105 AND 440.34, FLA. STAT. (2007) ARECONSTITUTIONAL AND DO NOT VIOLATE THE FIRSTAMENDMENT RIGHTS TO FREE SPEECH, FREEDOM OFASSOCIATION OR THE RIGHT TO PETITION FOR REDRESS,AS THERE IS NO FUNDAMENTAL RIGHT TO COUNSEL INTHIS MATTER AND THESE SECTIONS PASS THE RATIONALBASIS TEST.
ii
PAGE
11
iv
1
2
4
4
15
TABLE OF CONTENTS(Continued)
PAGE
POINT IV: 24
THE 2003 CHANGES TO THE WORKERS' COMPENSATION LAWWHICH ALLOW THE TAXATION OF COSTS AGAINST ANINJURED WORKER WHO DOES NOT PREVAIL ON HIS CLAIMDO NOT VIOLATE FLORIDA CONSTITUTION ARTICLE I,
SECTIONS 2, 21 & 23.
CONCLUSION ....................... 35
CERTIFICATE OF SERVICE ................. 36
CERTIFICATE OF TYPE FACE COMPLIANCE ........... 37
iii
TABLE OF AUTHORITIES
CASES: PAGE
Acton II v. Fort Lauderdale Hospital,440 So. 2d 1282 (Fla. 1983) ............. 32
Bend v. Shamrock Services,59 So. 3d 153 (Fla. 1st DCA 2011) .......... 10
Bradley v. Hurricane Restaurant,670 So. 2d 162 (Fla. 1st DCA 1996) .......... 21,22
Brascom v. Hillsborough County Sheriff's Office,65 So. 3d 619 (Fla. 1st DCA 2011) .......... 2,7,35
Broward v. Jacksonville Med. Ctr.,690 So.2d 589 (Fla. 1997) .............. 22
Carmack v. State, .Dep't of Agric.,31 So. 3d 798 (Fla. 1st DCA 2009) .......... 16
City of El Paso v. Simmons,379 U.S. 497 (1965) ................. 17
Crist v. Fla. Ass'n of Criminal Def. Lawyers, Inc.,978 So. 2d 134 (Fla. 2008) ............. 15
Crutcher v. Sch. Bd. Of Broward County,834 So. 2d 288 (Fla. 1st DCA 2002) ......... 11
Eccles v. Nelson,919 So. 2d 658 (Fla. 5th DCA 2006) .......... 19
Fasching v. Backes,452 N.W. 2d 324 (N.D. 1990) ............. 26
Fla. Dep't of Envtl. Prot.v. ContractPoint Fla. Parks, LLC,986 So. 2d 1260 (Fla. 2008) ............. 12
Fla. Dep't of State, Div. of Elections v. Martin,916 So. 2d 763 (Fla. 2005) .............. 12
Frederick v. Monroe County School Board,WL4746524 (decided October 5, 2012) .......... 29
iv
TABLE OF AUTHORITIES(Continued)
CASES:
Gideon v. Wainwright,
PAGE
372 U.S. 335 (1963) ................. 24,25,28
Golden v. McCarty,337 So. 2d 388 (Fla. 1976) .............. 17
HDV Construction Systems, Inc., v. Aragon,66 So. 3d 331 (Fla. 1st DCA 2011) .......... 22
Hensley v. Punta Gorda,686 So. 2d 724 (F1a. 1st DCA 1997) .......... 22
Humana of Florida, Inc. v. McKaughan,652 So. 2d 852 (Fla. 2nd DCA 1995) .......... 31
James W. Windham Builders, Inc., v. Overloop,951 So. 2d 1170 (Fla. 1998) .............. 11
Johns v. May,402 So. 2d 1166 (Fla. 1981) ............. 17Kaufman v. Community Inclusions, Inc.,57 So. 3d 919 (F1a. 1st DCA 2011) .......... 15,33
Khoury v. Carvel Homes South, Inc.,403 So 2d 1043 (Fla. 1st DCA 1981 ........... 15,30
Knight and Wall Co. v. Bryant,178 So. 2d 5 (Fla. 1965) ............... 17
Lucas v. Englewood Community Hospital,963 So. 2d 894 (Fla. 1st DCA 2007 ........... 21
Lundy v. Four Seasons Ocean Grand Palm Beach,932 So. 2d 506 (Fla. 1st DCA 2006) .......... 15,23,33
Maas v. Olive,992 So. 2d 196 (Fla. 2008) .............. 27
Makemson v. Martin County,491 So. 2d 1109 (Fla. 1986) ............. 24,27,28
V
TABLE OF AUTHORITIES(Continued)
CASES: PAGE
Martinez v. Scanlan,582 So. 2d 1167 (Fla. 1991) ............. 32,33
Matrix Employee Leasing, Inc. V. Hadley,78 So. 3d 621 (Fla. 1st DCA 2011) ........... 11
McDermott v. Miami-Dade County,753 So. 2d 729 (Fla. let DCA 2000) .......... 26
McArthur v. Mental Health Care, Inc.,35 So. 3d 105 (Fla. 1st DCA 2010) ........... 10
McElrath v. Burley,707 So. 2d 836 (Fla. 1st DCA 1998) .......... 23
McFadden v. Hardrives Construction, Inc.,573 So. 2d 1057 (Fla. 1st DCA 1991) .......... 10
McLean v, Mundy,81 So. 2d 501 (Fla. 1955) ............... 32
Medina v. Gulf Coast Linen Services,825 So. 2d 1018 (Fla. 1st DCA 2002) ........... 15,17,33
Mobile Elevator Co. v. White,39 So. 2d 799 (Fla. 1949) ............... 23
Morris v. Dollar Tree Store,869 So. 2d 704 (Fla. 1st DCA 2004) ........... 4
Mullins v. Department of Law Enforcement,942 So. 2d 998 (Fla. 5th DCA 2006) ........... 25
Remeta v. State, 559 So. 2d 1132 (Fla. 1990) ...... 24
Samaha v. State,389 S9. 2d 639 (Fla. 1980) ............... 16,30,31
Sasso v. Ram Property Management,431 So. 2d 204 (Fla. 1st DCA 1983) ........... 21
vi
TABLE OF AUTHORITIES(Continued)
CASES: PAGE
S..B. v. Department of Children and Families,851 So. 2d 689 (Fla. 2003) ............... 25
Sentry Ins. Co. v. Hamlin,69 So. 2d 3d 1065 (Fla. 1st DCA 2011) ......... 4,9
Srygley v. Capital Plaza, Inc.,82 So. 3d 1211 (Fla. 1st DCA 2012) ........... 16
Staffmark v. Merrell,43 So. 3d 792 (Fla. 1st DCA 2010) ........... 20
State v. Kinner,398 So. 2d 1360 (Fla. 1981) ............... 13,17
State v. Powell,497 So. 2d 1188 (Fla. 1986) .............. 17
Strickland v. Washington,466 U.S. 668 (1984) .................. 26
Styles v. Broward County School Board,831 So. 2d 212 (Fla. 1st DCA 2002) ........... 22
Sullivan v. Mayo,121 So. 2d 424 (Fla. 1960) ............... 31
The Amendments to Uniform Guidelinesfor Taxation of Costs,915 So. 2d 612 (Fla. 2005) ............... 7
Thompson v. W.T. Edwards Tuberculosis Hosp.,164 So. 2d 13 (Fla. 1964) ................ 31
Todd v. State,643 So. 3d 625 (Fla. 1st DCA 1994) ........... 17
United Auto. Ins. Co. v. Rodriguez,808 So. 2d 82 (Fla. 2010) ................ 17
Warren v. State Farm Mut. Auto Ins. Co.899 So. 2d 1090 (Fla. 2005) ............... 16
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TABLE OF AUTHORITIES(Continued)
CASES: PAGE
Wolf v. Progressive American Insurance Company,34 So. 3d 81 (F1a. 1st DCA 2010) ........... 16
Yeiser v. Dysart,267 U.S. 540 (1925) ................. 18
Section 440.13(10), Fla. Stat ............ 8
Section 440.15, Fla. Stat ............ 16Section 440.20(11) (c), Fla. Stat ............ 21Section 440.34, Fla. Stat ............ 2, 3,
9,10,11,12,13,14, 15, 18,
20, 21, 23,
24,29,30,32,34,35
Section 440.34(1), Fla. Stat ........... 11,15,18,30
Section 440.34(2), Fla. Stat .......... 12Section 440.34(3), Fla. Stat .......... 2,3,4,
6, 9, 23,
29, 35Section 440.34(5), Fla. Stat .......... 30Section 440.34(7), Fla. Stat .......... 11Section 440.105 Fla. Stat .......... 15, 18,
21, 23,29, 32, 34
Section 440.105 (3) (c) , Fla. Stat .......... 20Section 440.105(3), Fla. Stat .......... 30
FLORIDA CONSTITUTIONAL AMENDMENTS:
Article I, § 2, Fla. Const .............. 24Article I, § 21, Fla. Const .............. 24Article I, § 23, Fla. Const .............. 24
UNITED STATES CONSTITUTIONAL AMENDMENTS:
U.S. Const. Amend. VI ................. 24
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ii:::
PRELIMINARY STATEMENT
EUGENE JACOBSON shall be referenced as the "Claimant" and
the "Appellant." SOUTH EAST PERSONNEL LEASING, INC., and PACKARD
CLAIMS ADMINISTRATION, INC., shall be referenced herein as the
"Employer/Carrier" and "Appellees." The Judge of Compensation
Claims shall be referenced as "JCC." References to the record on
appeal shall be made with the volume listed first (abbreviated,
"Vol.") followed by the volume number in Roman numerals, a comma,
and the specific page number(s).
The Appellant's initial brief shall be referred to herein as
the "Initial Brief", followed by the applicable page number.
1
StTh1MRY OF THE ARGUMENT
POINT I
Appellant failed to demonstrate that the JCC erred when she
awarded costs taxed against Appellant pursuant to Section
440.34(3), Fla. Stat. (2007). The JCC properly awarded costs
against Appellant pursuant to Brascom v. Hillsborough County
Sheriff's Office, 65 So. 3d 619 (Fla. 1st DCA 2011) and The
Arnendrrzents to Uniform Guidelines for Taxation of Costs, 915 So.
2d 612 (Fla. 2005) . Appellant's challenges should be denied and
the JCC's Order affirmed.
POINT II
The JCC properly denied approval of Appellant's Retainer Fee
Agreement and did not err in her interpretation of Section 440.34
in such denial. Section 440.34, Fla. Stat. (2007) provides
attorney's fees payable to a claimant's attorney only when
benefits have been secured. A JCC does not have authority to
approve an Hourly Retainer Agreement that violates Section
440.34, Fla. Stat. (2007) . As such, the JCC's Order denying
Appellant's Request for Approval of an Hourly Retainer Agreement
and for Payment of Services to date was proper and should be
affirmed.
2
POINT III
This Honorable Court has addressed constitutional challenges
to Sections of the Florida Workers' Compensation Statutes,
specifically Section 440.34, Fla. Stat. and has repeatedly held
the same constitutional. Appellant alleges violations to his
freedom of speech, right to assemble and the right to petition
for redress but fails to provide the basis necessary for such
attacks. Under rational basis review, Appellant has not
satisfied his burden of showing that the State's interest in
enacting the Workers' Compensation Statutes is without any
rational basis. Appellant's arguments fail and should be
rejected.
POINT IV
Section 440.34(3), Fla. Stat. (2007) provides that an
employer/carrier may seek to tax costs against a claimant who has
not prevailed in a final hearing or has withdrawn claims. A
claimant in the Workers' Compensation system does not have a
fundamental right to an attorney. As such, a claimant does not
have a statutory or constitutional right to an attorney at a cost
hearing.
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POINT I
THE JCC DID NOT ABUSE HER DISCRETION BYAWARDING COSTS AGAINST APPELLANT AS THEAPPLICATION OF SECTION 440.34(3), FLA. STAT.(2007) AND THE UNIFORM GUIDELINES FORTAXATION OF COSTS IN THIS MATTER WAS PROPER.
A JCC's rulings relative to specific cost items are subject
to an abuse of discretion standard of review on appeal. Morris
v. Dollar Tree Store, 869 So. 2d 704, 707 (Fla. 1st DCA 2004)
Additionally, when an issue involves a JCC's interpretation and
application of a statute a de novo standard of review is applied.
Sentry Ins. Co. v. Hamlin, 69 So. 2d 3d 1065, 1069 (Fla. 1st DCA
2011)
Appellant was initially represented by Attorney Frank Clark
who petitioned for medical and indemnity benefits relative to a
date of accident of September 24, 2007. (Vol. I, p. 5) . A final
hearing was held on November 1, 2010, and the JCC entered an
Order on November 30, 2010, denying all benefits requested.
(Vol. I, p. 27),
Subsequently, Appellees filed a Verified Motion to Tax Costs
against Appellant pursuant to Section 440.34(3), Fla. Stat.
(2007) on October 10, 2011. (Vol. I, pgs. 29-63) . On October
28, 2011, Attorney Frank Clark withdrew as attorney of record
because it was no longer economically viable for him to continue
such representation. (Vol. I, pgs. 64-65)
On December 22, 2011, Attorney Michael Winer filed a
Response to the Verified Motion to Tax Costs on behalf of
Appellant. (Vol. I, pgs. 102-113)
On January 18, 2012, a hearing was held on Attorney Winer's
Motion for Approval of Retainer Agreement and Attorney's Fees for
Services Rendered to date and the JCC denied the same on January
24, 2012. (Vol. I, pgs. 133-137) . Attorney Winer withdrew from
representation of the Appellant on January 30, 2012, and again on
January 31, 2012. (Vol. I, pgs. 138-142).
On January 31, 2012, Appellant presented to the hearing on
the Verified Motion to Tax Costs. (Vol. p. 149) . An Order was
entered by the JCC on January 31, 2012, awarding costs against
Appellant. (Vol. I, pgs. 149-155) . Just two days later, on
February 2, 2012, Attorney Winer filed a Notice of Appearance on
behalf of Appellant solely for appellate purposes. (Vol. I, pgs.
156-157)
Appellant argues that he was unsuccessful at the cost
hearing because he was unrepresented which was due to the JCC's
failure to approve the retainer agreement. Appellant ignores the
fact that he was equally unsuccessful at the final merits hearing
while represented by counsel where he requested permanent total
disability benefits, continued compensability of his low back,
continued evaluation and treatment for his low back and
penalties, interest, costs, and attorney's fees. Additionally,
at the final merits hearing on November 1, 2012, while
5
H
represented by counsel, Appellant withdrew requests for payment
of temporary total disability benefits, temporary partial
disability benefits, authorization and payment of a lumbar MRI
and authorization and payment of cervical spine surgery per Dr.
Hershkowitz (Vol. I, p. 150), providing the basis for Appellees
to prevail on these issues as well.
At the start of the cost hearing, Appellant was asked if he
wished a continuance to obtain representation "but he declined on
the basis that he has no money to hire counsel .
" (Vol. I,
p. 149) (emphasis added). As such, the basis of this entire
appeal is disingenuous. There is no evidence in the record
establishing that the Appellant could not obtain an attorney_to
represent him at the cost hearing, only that he attempted to
retain Attorney Winer who would not represent him if Attorney
Winer could not be receive an hourly fee payable by the Appellant
which is a clear violation of the Florida Workers' Compensation
Statutes.
The JCC did not abuse her discretion as the application and
interpretation of Section 440.34(3), Fla. Stat. (2007) and the
Uniform Guidelines for Taxation of Costs were proper. Appellant
alleges that the charges of $690.00 for doctor conferences were
not reasonable or necessary and that the JCC abused her
discretion by granting this cost against Appellant. However,
Appellant's argument is without support.
Appellee's Verified Motion to Tax Costs established that
$200.00 was paid to Dr. Lance Krepl±ck for his attendance at a
telephone conference held on March 15, 2010. (Vol. I, p. 44)
$245.00 was paid to Dr. John Cassidy, Appellee's IME, for his
attendance at a conference prior to his deposition on August 30,
2010 (Vol. I, p. 45); and $245.00 was paid to Dr. Cassidy for a
second conference that occurred on October 1, 2010, which was
prior to a second deposition. (Vol. I, p. 45). The JCC found
that the $200.00 per hour charge for depositions does not apply
to conferences and such conferences may be taxed pursuant to
Brascorn V. Hilisborough County Sheriff's Office, 65 So. 3d 619
(Fla. 1st DCA 2011). In .Brascom, this Court held that the JCC
did not abuse her discretion in awarding the cost of a pre-
deposition conference between the employer/carrier's counsel and
their IME. It is within a JCC's discretion to award costs such
as conferences with an employer/carrier's IME and this Court
found "no basis to determine that the JCC abused her discretion
in doing so." Id. at 620. The Amendments to Uniform Guidelines
for Taxation of Costs, 915 So. 2d 612 (Fla. 2005) detail the type
of litigation costs that should not be taxed. A conference with
an authorized treating physician is not included on this list.
Id. at 617. Additionally, these guidelines are advisory only and
the taxation of costs in any particular proceeding is "within the
broad discretion of the trial court." Id at 614.
7
Appellant challenges the award of $445.00 which was paid to
Dr. Ca.ssidy for his attendance at a deposition as it should be
limited to $200.00 total. (Initial Brief, p. 14) . Appellant's
argument is based upon Section 440.13(10), Fla. Stat. (2007)
stating that a health care provider is allowed $200.00 per hour.
However, the deposition was scheduled f or longer than one hour.
(Vol. I, p. 325).
Appellant challenges the award of $10,000.00 in costs for
reimbursement of vocational services he alleged was a benefit
that was provided to claimant. The record is clear that the
services provided by the vocational experts related to the final
hearing and did not relate to services offered to the Appellant.
(Vol. I, p. 328-30). The JCC found that the charges for Re-
EmployAbility did not constitute services but rather were leads
developed by the provider done solely f or evidence for the
Employer/Carrier's vocational expert witness' testimony. (Vol.
I, p. 154) . The JCC did not find that the costs claimed were
excessive or frivolous. The JCC further found that the reduction
in costs was not a benefit that would entitle the Appellant to
fees and costs. (Vol. I, p. 154). As such, the JCC's Order
awarding these costs should be affirmed.
As indicated in the Appellee's Verified Motion to Tax Costs,
"all depositions . . . conferences . . . vocational evaluations
were necessary to . . . provide evidence that the Claimant was
not permanently and totally disabled and that his need for
further treatment of his lower back was not causally related to
the industrial accident of September 4, 2007, that the request
for surgery per Dr. Hershkowitz was not medically necessary or
causally related to the workplace accident, that the claimant was
not entitled to any further indemnity benefits, as the
Employer/carrier was forced to defend all outstanding Petitions
for Benefits." (Vol. I, p. 47)
The JCC did not abuse her discretion in applying Section
440.34(3), Fla. Stat. (2007) and the Uniform Guidelines for
Taxation of Costs in awarding costs against the Appellant. The
Jcc properly accepted the sworn statements contained in the
Verified Motion to Tax Costs and appropriately awarded costs
against the Appellant and her Order should be affirmed.
POINT II
THE JCC PROPERLY DENIED APPELLANT'S MOTION FORAPPROVAL OF RETAINER AGREEMENT AND PAYMENT OFSERVICES RENDERED TO DATE AS SECTION 440.34, FLA.STAT. (2007) DOES NOT PERMIT THE ATTORNEY'S FEEENDORSED BY APPELLANT.
To the extent the issue involves a JCC's interpretation and
application of a statute is a question of law and subject to a de
novo standard of review. Sentry Ins. Co. v. Hamlin, 69 So. 3d
1065, 1069 (Fla. 1st DCA 2011)
The JCC properly held that the attorney fee provision
contained in Section 440.34, Fla. Stat. (2007) must be read in
pan materia and that an attorney representing a injured worker
H in the Workers' Compensation system is only entitled to a an
attorney fee based upon benefits secured and approved by a JCC.
Therefore, the JCC's Order denying Appellant's Request for
Approval of Hourly Retainer and Payment for Services Rendered to
date should be affirmed.
A JCC has only those powers expressly provided by statute,
and, conversely, has no jurisdiction or authority beyond that
which is specifically conferred by statute. A court may not read
into Chapter 440 authority that is not granted to a JCC. See
Bend v. Shamrock Services, 59 So. 3d 153 (Fla. 1st DCA 2011);
McArthur v. Mental Health Care, Inc., 35 So. 3d 105, 107 (Fla.
1st DCA 2010); and McFadden v. Hardrives Construction, Inc., 573
So. 2d 1057, 1059 (Fla. 1st DCA 1991)
The JCC correctly found that the representation by an
attorney to defend a claimant in a cost hearing is not addressed
in Chapter 440 and "[e]ven if it were, the statute clearly limits
approval of any such fee to the statutory guideline amount."
(Vol. I, p. 136). The JCC held that pursuant to Section 440.34,
Fla. Stat. (2007) a JCC is "authorized to do whatever is
necessary to insure that a fee in excess of the fee schedule is
not approved when the claimant is paying the fee." (Vol. I, pgs.
136-37)
JCC5 are bound by the decisions of this Court relative to
the interpretation of Workers' Compensation Law unless and until
the decision is overruled by the Florida Supreme Court or this
10
Court recedes from the decision en banc. See Matrix Employee
Leasing, Inc. v. Hadley, 78 So. 3d 621, 623 (Fla. 1st DCA 2011)
The JCC appropriately interpreted Section 440.34, Fla. Stat.
(2007) to mean what it explicitly says; that fees payable by a
claimant cannot be in excess of the fee schedule and such fees
must be approved by the JCC and based upon benefits secured. See
section 440.34(1), Fla. Stat. (2007). Additionally Section
440.34(1), Fla. Stat. (2007) states in pertinent part "[t]he
judge of compensation claims is not required to approve any
retainer agreement between the claimant and his or her attorney."
Pursuant to the statutes, a retainer agreement may not be in
excess of what is allowed under Sections 440.34(3) and 440.34(7),
F Fla. Stat. (2007) (the allowance of a fee not to exceed
$1,500.00 relating to procuring a medical only benefit).
A court must interpret statutes by the well established
norms of statutory construction which require rendering the
statutory provision meaningful. Crutcher v. Sch. Bd. Of Broward
County, 834 So. 2d 288, 232 (Fla. 1st DCA 2002) . A statute must
be given its plain and obvious meaning. James W. Windham
Builders, Inc., v. Overloop, 951 So. 2d 1170, 1172 (Fla. 1998).
Appellant argues that because Section 440.34(1) provides in
relevant part "fee, gratuity, or other consideration may not be
paid for a claimant . . ." (emphasis added) that a fee may be
paid by a claimant and that the statutory guideline contained in
11
H Section 440.34, Fla. Stat. (2007) has no relevance to such an
instance. Appellant misinterprets the statute.
The doctrine of pan matenia requires that statutes relating
to the same subject or object be construed together to harmonize
the statutes and to give effect to the Legislature's intent.
H Fla. Dep't of State, Div. of Elections v. Martin, 916 So. 2d 763,
768 (Fla. 2005). See also Fla. Dep't of Envtl. Prot. v.
ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1265-66 (Fla.
2008) (statutes should be construed in pan materia to reconcile
inconsistency in related statutes) . The statute, when construed
together in harmony allows only for claimant paid attorney's fees
when benefits have been secured.
Section 440.34(2), Fla. Stat. (2007) provides in pertinent
part "[i]n awarding a claimant's attorney fee, the judge of
compensation claims shall consider only those benefits secured by
the attorney." Therefore, in an instance such as this, where no
benefits have been secured on behalf of the claimant, attorney's
fees are simply not awardable.
As pointed out in the Amicus Brief, the Legislature changed
the statute in 2003 so that the prevailing party could obtain
costs. This evidences the Legislature's intent that an
employer/carrier who prevails may seek to tax costs against a
non-prevailing claimant. If the Legislature intended that a cost
12
hearing against a claimant could not proceed unless a claimant
was represented, such language would have been added.
Appellant argues that it is absurd that a claimant can
contract with an attorney for an hourly fee to defend him in the
enforcement of the cost proceedings in circuit court but due to
the prohibition in section 440.34, Fla. Stat. (2007) cannot
contract with an attorney for an hourly fee to defend him in the
proceeding to determine the entitlement to and amount of costs.
It is even more absurd that Employer/Carriers' are burdened with
seeking to enforce such Orders in circuit court when costs are
awarded and claimants disregard the JCC's mandate.
Appellant's argument that the only way that 440.34, Fla.
Stat. (2007) can withstand constitutional scrutiny is to
interpret the plain language of the statute as permitting a
claimant to freely negotiate with his attorney for the payment of
a fee by him is flawed. Case law supports that courts have an
obligation to construe statutes in a manner that avoids holding a
statute unconstitutional. See State v. Kinner, 398 So, 2d 1360,
1363 (Fla. 1981) (all doubt will be resolved in favor of the
constitutionality of a statute)
Appellant argues that the Legislature removed the language
prohibiting that a fee be paid "for services rendered" suggest
intent to allow a fee to be paid "by" the claimant. Again, the
plain meaning of the statutes when read in pan matenia makes it
clear that a claimant's attorney is awarded fees in workers'
13
compensation for benefits secured on behalf of the injured worker
and at no other time.
Appellant's argument in regard to the fee paid "for" a
claimant rather than "by" a claimant is illogical. The
attorney's fee scheme endorsed by Appellant would be difficult,
if not impossible, to monitor. Appellant asserts that the
Legislature is only concerned with attorney's fee paid for a
claimant by a carrier, employer, servicing agent to be within
guidelines but that the Legislature has no interest in monitoring
attorney's fees paid by a claimant to his attorney with no
oversight by a JCC. Such a scheme completely ignores the intent
of the Legislature. One of the reasons for the workers'
compensation system and current structure providing for
attorney's fees payable to claimant's attorneys is to protect
injured workers, in their time of need and desperation, from
being taken advantage of by unscrupulous attorneys seeking to
benefit from their unfortunate circumstance for their own gain.
This is precisely the judicial oversight and protection that the
Legislature intends for the JCC to retain.
The JCC properly denied Appellant's Motion for Approval of
Hourly Retainer Agreement and Payment of Services to Date.
Therefore, the JCC's Order does not violate Section 440.34, Fla.
Stat. (2007) and should be affirmed.
14
POINT III
SECTIONS 440.105 AND 440.34, FLA. STAT. (2007) ARECONSTITUTIONAL AND DO NOT VIOLATE THE FIRSTAMENDMENT RIGHTS TO FREE SPEECH, FREEDOM OFASSOCIATION OR THE RIGHT TO PETITION FOR REDRESS,AS THERE IS NO FUNDAMENTAL RIGHT TO COUNSEL INTHIS MATTER AND THESE SECTIONS PASS THE TIONAL
H BASIS TEST.
Issues that involve a determination of a statute's
constitutionality are a question of law subject to de novo
review. Grist v. Fla. Ass'n of Criminal Def. Lawyers, Inc., 978
So. 2d 134, 139 (Fla. 2008)
This Court has addressed challenges to the constitutionality
of chapter 440 and has repeatedly rejected such arguments. See
Lundy V. Four Seasons Ocean Grand Palm Beach, 932 So. 2d 505
(Fla. 1st DCA 2006) (held that section 440.34(1) does not violate
the separation of powers doctrine, the due process clause, the
equal protection clause, the right to counsel and the right to
freely contract per the Florida Constitution); Kaufman v.
Community Inclusions, Inc., 57 So. 3d 919 (Fla. 1st DCA
2011) (this Court rejected equal protection, due process,
separation of powers and access to courts challenges made to
amended section 440.34); Khoury v. Carvel Homes South, Inc., 403
So 2d 1043 (Fla. 1st DCA 1981) (this Court upheld
constitutionality of section 440.34(1) against challenges that it
violates equal protection, due process and the contract clause)
Medina v. Gulf Coast Linen Services, 825 So. 2d 1018 (Fla. 1st
15
DCA 2002) (this Court held that section 440.15 does not violate
due process, access to courts, separation of powers and right to
jury trial).
The Florida Supreme Court in Samaha v. State, 389 S9. 2d
639, 641 (Fla. 1980), held that the statute which makes it a
misdemeanor for an attorney to receive fees from a workers'
compensation claimant without prior approval by the JCC does not
violate due process, does not improperly delegate authority to
the JCC, does not violate the equal protection clause and does
not discriminate between contracts that lawyers make with
different clients.
"When a statute is clear and unambiguous, courts have no
need to look behind the plain language or resort to rules of
statutory construction to find legislative intent." Wolf v.
Progressive American Insurance Company, 34 So. 3d 81, 82 (Fla.
1st DCA 2010); Warren v. State Farm Mut. Auto Ins. Co., 899 So.
2d 1090, 1095 (Fla. 2005)
"Established rules of statutory construction demand that
when interpreting a statute, courts should give terms their plain
meaning." Srygley v. Capital Plaza, Inc., 82 So. 3d 1211, 1212
(Fla. 1st DCA 2012) (citing Carmack v. State, Dep't of Agric., 31
So. 3d 798, 800 (Fla. 1st DCA 2009)) . "Where the wording of the
law is clear and amenable to a logical and reasonable
interpretation, a court is without power to diverge from the
intent of the Legislature as expressed in the plain language of
the law." United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 85
(Fla. 2010)
There is a strong presumption that a statute is
constitutionally valid and "an act will not be declared
unconstitutional unless it is determined to be invalid beyond a
reasonable doubt " Medina v Gulf Coast Linen Services, 825 So
2d 1018, 2010 (Fla. 1st DCA 2002) (citing Todd v. State, 643 So.
3d 625 (Fla. 1st DCA 1994), review denied, 651 So. 2d 1197 (Fla.
1995), cert. denied)); State v. Kinner, 398 So. 2d 1360, 1363
(Fla. 1981) (citing Knight and Wall Co. v. Bryant, 178 So. 2d 5
(Fla. 1965), cert. denied 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.
301 (1966)
The Florida Supreme Court held in State v. Powell, 497 So.
2d 1188, 1190 (Fla. 1986) that "a legislative act carries with it
the presumption of validity and the party challenging a statute's
constitutionality must carry the burden of establishing that the
statute bears no reasonable relation to a permissible legislative
objective." See Johns v. May, 402 So. 2d 1166 (Fla. 1981)
"Merely because legislation places some restriction on the
right to freely contract will not invalidate the legislation if
the restriction was intended to protect the public's health,
safety or welfare." City of El Paso v. Simmons, 379 U.S. 497,
508-09, 85 S.C.T. 577, 583-84, 13 L.Ed.2d 466 (1965); Golden v.
McCarty, 337 So. 2d 388 (Fla. 1976)
17
In the case of Yei.ser v. .DysarL, 267 U.S. 540, 45 S.Ct. 399,
69 L.Ed. 755 (1925), a challenge was made to a statute that
regulated attorneys fees which was similar to Section 440.34(1),
Fla. Stat. (2007). This statute provided that only such sum
could be demanded for services in bringing a suit under the
workers' compensation act as the court should allow, and a
contract for other and further pay was void. (emphasis added)
In Yeiser, the appellant argued, similar to the instant
case, that the statute unreasonably restricted the liberty of
contract and deprived him of liberty and property without due
process. The court in Yeiser denied the challenges made stating
that a large portion of those covered by the act need protection
against improvident contracts and their protection is the
public's and their own self-interest and an attorney is licensed
by the State and workers' compensation is created by the State;
therefore, with regard to workers' compensation, the state may
attach such contentions on the license to practice law as it
deems necessary for the public good. Here, the state has an
interest in protecting against improvident contracts and the
interest is to protect the public such as injured workers.
Next, Appellant argues that the First Amendment prohibits
government from interfering with the consultation or retention of
legal counsel. Specifically, that Sections 440.105 and 440.34,
Fla. Stat. (2007) infringe upon an individual's right to freedom
of speech, freedom of association and the right to petition
relative to consulting with or retaining an attorney in Workers'
Compensation matters.
Freedom of speech and press as provided in Art. I § 4 of the
Florida Constitution indicates that "every person may speak,
write and publish sentiments on all subjects but shall be
responsible for the abuse of that right. No law shall be passed
to restrain or abridge the liberty of speech or of the press
1I Appellant has not identified any speech that has allegedly
been infringed upon in violation of the First Amendment.
Appellant has not identified how this purported speech infringed
upon is in violation of the First Amendment. Additionally,
Appellant has not identified which government entity is
infringing upon his speech in violation of the First Amendment.
Freedom of assembly or association pursuant to Art. I § 5
provide that people have the right to come together and
collectively express, promote, pursue and defend common
interests. The freedom of association is not specifically
mentioned in the First Amendment of the United States
Constitution. It appears to have grown out of the guarantee of
the right to peaceably assemble and out of the free of speech.
See Eccles v. Nelson, 919 So. 2d 658, 661 (Fla. 5th DCA 2006)
Appellant has not identified how he was allegedly prohibited from
assembling, who he was prohibited from assembling with nor has he
19
identified the government entity allegedly prohibiting such
assembly.
The right to petition for redress pursuant to Art. I § 5
prohibits Congress from abridging an individual's right to
petition the Government for a redress of grievances. Appellant
has not identified how he has allegedly been prohibited from
petitioning for redress. In fact, at the underlying hearing,
Appellant had the ability to speak and to be heard by the JCC as
evidenced in the record. (Vol. I, pgs. 239-338)
The right to freedom of speech, association and to petition
for redress is not infringed upon because an individual is not
represented by counsel in an administrative hearing. Sections
440.105(3) (c) and 440.34, Fla. Stat. (2007) do not prohibit
claimants from consulting with or retaining an attorney of their
choice. The underlying problem intimated by Appellant is that
the Workers' Compensation Statutory scheme does not provide for
attorney's fees payable to a claimant's attorney at a cost
hearing. As such, Appellant would like for this Honorable Court
to declare sections of the Workers' Compensation Law
unconstitutional. However, this is an issue that should be taken
up with the Legislature rather than this Court. See Staffrnark v.
Merrell, 43 So. 3d 792 (Fla. 1st ]JCA 2010) (this Court held upheld
the clear and unambiguous language allowing for the apportionment
of all workers' compensation benefits and rejected the claimant's
contention that policy considerations concerning the harmful
20
consequences may result. This Court held that such arguments
should be directed to the Legislature rather than this Court).
The rational basis test is the proper basis by which to
review Appellant's claims. See Bradley v. Hurricane Restaurant,
670 So. 2d 162 (Fla. 1st DCA 1996). In Lucas v. Englewood
Community Hospital, 963 So. 2d 894, 895 (Fla. 1st DCA 2007) , this
Court held that "[b]ecause section 440.20(ll)(c) do not
negatively impact a suspect class or result in the deprivation of
a fundamental right, the appellant's challenge is subject to a
rational basis review." Similarly, Sections 440.105 and 440.34
doe not negatively impact a suspect class and do not deprive one
of a fundamental right. As such, the rational basis standard is
appropriate here.
This Court previously held in Sasso v. Ram Property
Management, 431 So. 2d 204 (Fla. 1st DCA 1983), aff'd 452 So. 2d
932 (Fla. 1984), appeal dismissed, 469 U.S. 1030, 105 S.Ct. 498,
83 L.E.2d 391 (1984), that the rational basis analysis is highly
deferential toward action taken by the state and is virtually
insurmountable because of the burden in showing that the state
action is without any rational basis which is placed on the
challenging party. Appellant has not shown that the state action
of limiting attorney's fees to when benefits are secured on
behalf of an injured worker is without any rational basis.
21
The purpose of the Workers' Compensation Act was to see that
workers were rewarded for their industry by not being deprived of
reasonably adequate and certain payments for workplace accidents
and to replace an unwieldy tort system that made it virtually
impossible for businesses to predict or insure for the cost of
industrial accidents. Bradley v. Hurricane Restaurant, 670 So.
2d 162 (Fla. 1st DCA 1996) . Another purpose is to "assure the
quick and efficient delivery of disability and medical benefits
to an injured worker and to facilitate the workers' return to
gainful reemployment at a reasonable cost to the employer."
Hensley v. Punta Gorda, 686 So. 2d 724, 727 (Fla. 1st DCA 1997)
Another purpose of Workers' Compensation law is to protect
employees and their dependents from financial disaster. Styles
v. Broward County School Board, 831 So. 2d 212, 213 (Fla. 1st DCA
2002) citing Broward v. Jacksonville Med. Ctr., 690 So.2d 589,
591 (Fla. 1997) . Additionally, the Workers' Compensation law
places on industry rather than the general taxpaying public the
expense incident to the hazards created by industry. HDV
Construction Systems, Inc., v. Aragon, 66 So. 3d 331 (Fla. 1st
DCA 2011)
The Florida Supreme Court has held that because an employer
stands to benefit and profit from their employment of labor and
is in the best position to avoid the risk of loss, "the courts
have recognized the impropriety of imposing on society the costs
22
of a broken body and diminished income created by the industry."
Mobile Elevator Co. v. White, 39 So. 2d 799, 800 (Fla. 1949)
"The party challenging a statute has the burden to
demonstrate the unconstitutionality of the statute by negating
every conceivable basis for upholding the law." Lundy v. Four
Seasons Ocean Grand Palm Beach, 932 So. 2d 506, 509 (Fla. 1st DCA
2006); McElrath v. Burley, 707 So. 2d 836, 839 (Fla. 1st DCA
1998).
Appellant argues that no compelling state interest is
constitutionally advanced by the preclusion of retaining an
attorney at the claimant's own expense for legal services
rendered that do not involve securing a benefit. Under rational
basis review Sections 440.105 and 440.34 bear a rational
relationship to a legitimate legislative objective. The
Legislative intent is to protect industry from "an unwieldy tort
system" and protect "employees and their dependents from
financial disaster" by guaranteeing attorneys are only paid for
securing benefits on behalf of their clients. Appellant cannot
demonstrate that Sections 440.105 and 440.34, Florida Statutes
are unconstitutional. Appellant cannot demonstrate by negating
every conceivable basis for upholding the law. Rather, the
attack is centered on an inability to procure attorney's fees in
a specific scenario; when a claimant is faced with a Verified
Petition to Tax Costs pursuant to Section 440.34(3), Fla. Stat.
23
Appellant's Initial Brief and the Amicus Curiae Brief in
Support of the Appellant should be rejected as Appellant has not
established that the Florida Workers' Compensation statutes are
unconstitutional and has not shown that the statutes do not bear
a rational relationship to legitimate state objectives.
POINT IV
THE 2003 CHANGES TO THE WORKERS' COMPENSATION LAWWHICH ALLOW THE TAXATION OF COSTS AGAINST ANINJURED WORKER WHO DOES NOT PREVAIL ON HIS CLAIMDO NOT VIOLATE FLORIDA CONSTITUTION ARTICLE I,
SECTIONS 2, 21 & 23.
Appellant argues that the changes made to Section 440.34 in
2003 are unconstitutional as they deny him the right to retain
counsel to defend himself in a cost hearing and violate Article
I, sections 2, 21 and 23 of the Florida Constitution.
The Sixth Amendment to the United States Constitution
provides that "[un all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
defense." U.S. Const. Amend. VI. (emphasis added). An injured
worker under the Workers' Compensation Act does not have a
fundamental right to an attorney. Claimants do not enjoy the
same Sixth Amendment right to counsel as a criminal defendant.
See Remeta v. State, 559 So. 2d 1132 (Fla. 1990) ; Makemson v.
Martin County, 491 So. 2d 1109 (Fla. 1986); Gideon v. Wainwright,
372 U.S. 335 (1963)
24
The landmark case of Gideon v. Wainwright, 372 U.S. 335
(1963), established that a criminal defendant shall enjoy the
right to the assistance of counsel pursuant to the Fourteenth
Amendment. There is no such holding by this Honorable Court or
the Florida Supreme Court declaring that an injured worker has a
Fourteenth Amendment right to the assistance of counsel in
proceedings relating to workers' compensation.
In a civil dependency proceeding where a child was
adjudicated dependent, a mother alleged that her appointed
counsel was ineffective. S.B. v. Department of Children and
Families, 851 So. 2d 689 (Fla. 2003). The Florida Supreme Court
rejected the holdings of the state circuit court and the United
States District Court that all indigent participants in juvenile
dependency proceedings "are entitled, as a fundamental right, to
have counsel supplied to them by the state." Id. at 692. The
Florida Supreme Court found that the constitutional right to
counsel was not implicated in that case and would arise when the
proceedings could result in a permanent loss of parental custody.
A police officer appealed an order from an administrative
law judge claiming that he was denied the assistance of competent
counsel. Mullins v. Department of Law Enforcement, 942 So. 2d
998 (Fla. 5th DCA 2006). Mullins was found to have committed
conduct that violated the police officer standards of conduct
defined by statute and rule. Mullins was denied certification as
25
a law enforcement officer after the administrative hearing. The
Fifth District Court of Appeal held that "[am ineffective
assistance of counsel claim is premised on a violation of an
individual's Sixth Amendment right to counsel." Id. at 1000. See
also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984)
A woman charged with operating a motor vehicle with a blood-
alcohol level that was in excess of state statute requested an
administrative hearing in regard to her license suspension as a
result of the criminal charge. Fasching v. .Backes, 452 N.W. 2d
324 (N.D. 1990) . The court in Fasching held that constitutional
protections afforded in criminal proceedings were not applicable
in administrative license-suspension proceedings.
In McDermott v. Miami-Dade County, 753 So. 2d 729 (Fla. 1st
DCA 2000), this Honorable Court reviewed a writ of certiorari
relative to an order by a judge of compensation claims
prohibiting a claimant's attorney from discussing circumstances
of her accident until she appeared for the continuation of her
deposition. This Court found that the judge of compensation
claims did not depart from the essential requirements of the law
because "McDermott Ehad] no constitutional right to counsel in
this proceeding." Id. at 732. (emphasis added).
Here, Appellant has not established a fundamental right to
an attorney pursuant to the Fourteenth Amendment. It simply does
26
not exist. Appellant does not have the right to an attorney
appointed by the Judge of Compensation Claims. Appellant's
attorney has not served the public by representing an indigent
criminal defendant. Appellant's attorney has not been appointed
by the JCC to represent Appellant. The JCC has no authority to
appoint an attorney for a claimant The JCC is not charged with
"an essential function" of "ensuring adequate representation by
competent counsel." Appellant can hardly be compared to an
indigent criminal defendant.
The Amicus Curiae Brief submitted in support of the
Appellant's position also discusses challenges to statutory
attorney fee schemes in areas of law other than Workers'
Compensation. The Florida Workers' Advocates argue that the
holdings in Makemson v. Martin County, 491 So. 2d 1109 (Fla.
1986) and subsequent cases such as Maas v. Olive, 992 So. 2d 196
(Fla. 2008) should apply here. The cases cited by The Florida
Workers' Advocates are criminal cases that involve a circuit
court judge's performance of "an essential judicial function of
ensuring adequate representation by competent counsel." Makemson
at 1113. In both Makemson and Maas the Florida Supreme Court was
faced with constitutional challenges to the statutory fee
limitation; that it was unconstitutional relative to the
representation of indigent defendants in criminal matters. The
27
holdings of these cases have no relevance or application to a
statutory fee limitation in a workers' compensation case.
In Makemson, the statute that provided the fee limitation
for appointed attorneys representing indigent defendants was
found to be unconstitutional. The Florida Supreme Court held
that Florida trial courts have the inherent power to allow, in
extraordinary and unusual cases, departure from the statute's fee
guidelines in criminal cases when necessary in order to ensure
that an attorney who has served the public by defending the
accused is not compensated in an amount which is confiscatory of
his or her time, energy or talents. Id. at 1114. (emphasis
added).
The Florida Supreme Court in Makemson addressed the
challenge to the cap to the statutory fee for attorneys who
defend indigent defendants in criminal courts and reiterated that
Gideon establishes "fundamental the right to effective counsel
and established the state's duty to provide representation to the
indigent." Id. (emphasis added).
Appellant argues that because costs were assessed against
him after all claims were denied by the JCC, such cost award
should be rendered unconstitutional because he was prevented from
retaining an attorney. Appellant's claim alleges that he was
willing to pay the $175.00 per hour to his attorney to represent
him at the cost hearing. Yet, the Appellant stated at the
28
beginning of the cost hearing that he did not have any money to
hire an attorney. Appellees respectfully request that this
Honorable Court take judicial notice of the fact that the
Appellant was deemed insolvent by the JCC, as such, the cost of
preparing the record for this appeal was ordered to be paid for
by the Workers' Compensation Administrative Trust Fund. This
coupled with the fact that Appellant stated, on the record, that
he did not have money to retain counsel suggests that this appeal
has nothing to do with a violation of a right to contract freely
and to pay an attorney fee "by" a claimant.
This Honorable Court has recently reviewed a challenge to
access to courts in an instance where a claimant was taxed costs
after withdrawing a petition for benefits. See Frederick v.
Monroe County School Board, WL4746524 decided October 5, 2012
(however, this opinion has not been released for publication as
of this date). This Court indicated that this is a policy
question that the Legislature may want to address. However, the
law currently in effect permits an employer/carrier to tax costs
against the claimant when the claimant does not prevail pursuant
to 440.34(3), Fla. Stat. (2007).
Appellant argues that Sections 440.105 and 440.34, Fla.
Stat. (2007) infringe on his right to privacy by impeding his
right to contract freely, denies due process because Sections
440.34 and 440.105, Fla. Stat. (2007) restrict his ability to
secure representation and denies equal protection because the
29
statutes make it a criminal act for an attorney to accept fees
payable by a claimant. This Court in Khoury v. Carvel Homes
South, Inc., 403 So. 2d 1043 (Fla. 1st DCA 1981) upheld the
constitutionality of Section 440.34(1), Fla. Stat. against a
challenge that Section 440.34, Fla. Stat. violated the contract
clause. Additionally, the Florida Supreme Court rejected such
challenge in Sarnaha. Also in Samaha, a challenge was made
relative to the statute that made it a misdemeanor to receive any
fees or other consideration or gratuity unless approved by the
judge of industrial claims. See Section 440.34(5), Fla. Stat.
(1979). Section 440.105(3), Fla. Stat. (2007) is the current
version which makes it unlawful for any attorney to receive a fee
or other consideration or any gratuity that is not approved by a
judge of compensation claims.
Appellant's argument is that "no employee will EVER be able
to get an attorney to be able to represent him in a cost
proceeding." (Initial Brief, p. 32). As stated above, and
recently held by this Court, this policy argument should be
addressed with the Legislature. Injured workers are free to
retain attorneys, but are free to present to proceedings before
the judge of compensation claims without counsel and many times
do. In fact claimants have the right to represent themselves in
lieu of representation by an attorney at any stage of litigation.
The Florida Supreme Court held in Samaha that the "basis for
Samaha's arguments is nebulous, but he claims that the statute
violates due process, improperly delegates authority to the judge
of industrial claims, and violates the equal protection clause of
the constitution in that it discriminate between contracts that
lawyers make with different clients." Id. at 640. The Florida
Supreme Court held the statute contained no discernible ambiguity
and that it was lear that the Legislature "is telling all that
one doesn't charge or receive a fee from a workman's compensation
beneficiary unless such action and the fee are approved by the
proper representative of the state in the proceeding." Id.
Appellant makes essentially the same arguments here as in Sarnaha
and such arguments have previously been rejected.
Appellant argues that strict scrutiny applies; however,
there is no fundamental right to an attorney in Workers'
Compensation cases. As indicated above, the rational basis of
review applies and the state has legitimate interests. "One of
the fundamental purposes of workers' compensation is to relieve
society of the burden of caring for an injured person by placed
the burden on the industry involved." Humana of Florida, Inc. v.
McKaughan, 652 So. 2d 852, 857 (Fla. 2nd IJCA 1995) (citing
Sullivan v. Mayo, 121 So. 2d 424 (Fla. 1960)). Another
fundamental interest is to provide a system in which liability is
limited and determinative and the remedy is expeditious and
independent of proof of fault. McKaughan at 857. (citing
Thompson v. W.T. Edwards Tuberculosis Hosp., 164 So. 2d 13 (Fla.
31
1964)) ; McLean v. Mundy, 81 So. 2d 501 (Fla. 1955) . Sections
440.105 and 440.34 rationally relate to a legitimate state
interest to see that injured workers are not paying out of their
own funds for legal representation. The Legislature has enacted
section 440 34 to ensure that attorney fees in workers'
compensation are regulated. Additionally, the fact that Section
440.105, Fla. Stat. (2007) makes it a misdemeanor for an attorney
to receive compensation from a claimant shows that the
Legislature is serious about the state interest in protecting
injured workers.
Lastly, Appellant argues that the Workers' Compensation Laws
are an unreasonable alternative to tort litigation. Appellant
argues that the tort system offers "a plethora of advantages
compared to the Act." This idea completely ignores the state's
interest in adopting the Act in the first place. According to
the Florida Supreme Court in Martinez v. Scanlan, 582 So. 2d 1167
(Fla. 1991) , the Workers' Compensation law remains a reasonable
alternative to tort litigation. See also Acton II v. Fort
Lauderdale Hospital, 440 So. 2d 1282 (Fla. 1983)
The Florida Workers' Compensation system replaced the
unwieldy tort system with a no-fault insurance program. See
Medina at 1020. The Florida Supreme Court held that Workers'
Compensation law remains a reasonable alternative to tort
litigation. Martinez v. Scanlan, 582 2d 1167, 1172 (Fla. 1991)
32
Furthermore, the Florida Supreme Court rejected claims that
workers' compensation laws violate access to courts by failing to
provide a reasonable alternative to common-law tort remedies.
Martinez at 1171. See also Sasso.
Appellant also argues that the Florida Workers' Compensation
Act violates separation of powers. Such charges have been before
this Court and the same have been rejected. See Medina v. Gulf
Coast Linen Services, 825 So. 2d 1018 (Fla. 1st ]JCA 2002); Lundy
v. Four Seasons Ocean Grand Palm Beach, 932 So. 2d 506 (Fla. 1st
DCA 2006); Kaufman v. Community Inclusions, Inc., 57 So. 3d 919
(Fla. 1st DCA 2011)
Appellant argues that the "coup de grace" is the Legislature
delivering the imposition of costs against an unsuccessful
claimant and removing his right to contract with an attorney. As
indicated above, the state interest is rationally related to the
statute. The Legislature may limit the amount a claimant's
attorney may charge because the state has a legitimate interest
in regulating attorney's fees. Lundy at 510. Here, the
Legislature intended the receipt of attorney's fees for benefits
secured only. Had they intended something else, they would have
included language in the statute that articulates that intent.
Appellant's argument that the current Worker's Compensation
system is expensive has no bearing on the constitutionality of
the Workers' Compensation Statutes. The underlying case involved
extensive litigation due to the issues and defenses. Whether
33
.-...
litigation is expensive or inexpensive has absolutely no bearing
on the issues before this Court.
Appellant has not met his burden by showing that his rights
pursuant to the Florida Constitution have been infringed upon by
application of the Florida Workers' Compensation Statutes. The
State of Florida has a legitimate interest in the enactment of
the Workers' Compensation Statutes. Appellant does not have a
fundamental right to an attorney in a Workers' Compensation
proceeding.
For all the reasons outlined in this Answer Brief, the
Appellees ask this Honorable Court to reject the Appellant's
challenges to the constitutionality of Sections 440.34 and
440.105, Fla. Stat. (2007) and affirm the holding of the Judge of
Compensation Claims.
34
CONCLUS ION:
The JCC properly awarded costs against Appellant under
Section 440.34(3), Fla. Stat. (2007) pursuant to Brascom v.
Hilisborough County Sheriff's Office, 65 So 3d 619 (Fla 1st DCA
2011) and Uniform Guidelines for Taxation of Costs, 915 So. 2d
612 (Fla. 2005). Appellant's challenges should be denied and the
JCC's Order affirmed.
The JCC properly denied Appellant's Retainer Fee Agreement
and did not err in her interpretation of Section 440.34. A JCC
does not have authority to approve an Hourly Retainer Agreement
that violates Section 440.34, Fla. Stat. (2007) . As such, the
JCC's Order denying Appellant's Request for Approval of an Hourly
Retainer Agreement and for Payment of Services to date was proper
and should be affirmed.
This Honorable Court has addressed constitutional challenges
to Section 440.34, Fla. Stat. and has repeatedly held the same
constitutional. Under rational basis review, Appellant has not
satisfied his burden of showing that the State's interest in
enacting the Workers' Compensation Statutes is without any
rational basis. Appellant's arguments fail and should be
rejected.
A claimant in the Workers' Compensation system does not have
a fundamental right to an attorney. As such, a claimant does not
have a statutory or constitutional right to an attorney at a cost
hearing.
35
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the original of the foregoing has been
furnished via eDCA on October 25, 2012 to First District Court of
Appeal, 2000 Drayton Drive, Tallahassee, FL 32399-0950; and a
copy via U.S. Mail and e-mail to Jeffrey E. Appel, Esquire, 625
Commerce Drive, Suite 103, Lakeland, FL 33813; and Michael J.
Winer, Esquire, Law Office of Michael J. Winer, 110 North 11th1
Street, 2nd Floor, Tampa, FL 33602-4202.
/s/ Vanessa J. JohnsonVanessa J. Johnson, [email protected] Ear No. 593311Sponsler, Bennett, Jacobs & Adams, P.A.Post Office Box 3300Tampa, FL 33601Telephone: 813-272-1400Facsimile: 813-272-1401Attorneys for Employer/Carrier/Appellees
36
CERTIFICATE OF TYPE FACE COMPLIANCE
I HEREBY CERTIFY that this Answer Brief was computer
generated using Courier New 12 point font using Microsoft Word,
and hereby complies with the font standards as required for
computer-generated briefs
/s/ Vanessa J. JohnsonVanessa L Johnson, [email protected] Bar No. 593311Sponsler, Bennett, Jacobs & Adams, P.A.Post Office Box 3300Tampa, FL 33601Telephone: 813-272-1400Facsimile: 813-272-1401Attorneys for Employer/Carrier/Appellees
37