FL Case Law Summaries – 4/21/16


Thomas G. Portuallo

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Martha Miles v. City of Edgewater Police Dept./Preferred Governmental Claims Solutions and State of Florida

Appeal of the Order from JCC Mark Massey

DCA Order Date: April 20, 2016                          

Case: 1D15-0165; D/A: 8/3/2011 & 11/29/2011

Appellant’s Counsel: Michael J. Winer, Geoffrey Bichler

Attorney General: Pamela Jo Bondi

Briefly: CLAIMANT-PAID ATTORNEY’S FEE; CONSTITUTIONALITY OF F.S. §440.34 & F.S. §440.105(3)(c); – The 1st DCA held that F.S. §440.105(3)(c) and F.S. §440.34, when applied to a claimant’s ability to retain counsel under a contract that calls for a payment of a fee by a claimant, are unconstitutional violations of the claimant’s rights to free speech, free association and petition.  Further, the DCA held those restrictions on claimant’s ability to retain counsel under a contract that calls for payment of a fee by a claimant represent unconstitutional violations of the claimant’s right to form contracts and are not permissible restrictions on those rights.  Additionally, the DCA held that the criminal penalties of F.S. §440.105(3)(c), are not unenforceable against an attorney representing a workers’ compensation client seeking to obtain benefits under Chapter 440.

Summary: The 1st DCA reversed the orders of the JCC denying compensability of the claimant’s alleged exposure injuries and denying claimant’s motion to approve two attorney fee retainer agreements.  One of those agreements provided for payment of a $1,500 retainer by claimant’s union, the Fraternal Order of Police, and a separate agreement provided that the claimant would pay the remaining attorney fee once the $1,500 was exhausted.

The 1st DCA issued a lengthy opinion covering various points of constitutional law as applicable to claimant-paid attorney fee restrictions contained within Chapter 440 including F.S. §440.34 and criminal penalties under F.S. §440.105(3)(c).  The First District once again pointed out that a Judge of Compensation Claims is not an Article V Judge, and cannot decide issues of constitutionality and, therefore, constitutional challenges to F.S. §440 can be raised by parties at the appellate level without necessarily preserving error in the proceedings before the JCC.

The 1st DCA addressed the First Amendment as far as it protects freedom of speech and association and determined that claimant’s “speech” in seeking workers’ compensation benefits through an attorney is protected and any restrictions on that speech are subject to “strict scrutiny”, unless the government can show that such restrictions or regulations promote a compelling government interest and reflect the least restrictive means to further those interests.

The claimant argued that restrictions on a claimant-paid attorney fee violate the right to free speech because the evidence presented to the JCC at the trial established that no attorney would take her case if counsel’s compensation was limited to a guideline fee. The 1st DCA agreed based upon six affidavits filed by claimant’s former counsel from attorneys attesting they would not take the claimant’s case because it would not be economically feasible for them to continue on a purely contingent basis with fee restrictions as contained in F.S. §440.34.

Further, the DCA concluded that F.S. §440.105(3)(c), which makes it a crime for an attorney to accept a fee that is not approved by a JCC, is an unconstitutional infringement on the claimant’s right to hire an attorney.

The DCA also determined that F.S. §440.34, insofar as it restricted claimant-paid attorney fees, violated the claimant’s right to contract for legal services as a protected right under the 5th and 14th Amendments.

Additionally, the 1st DCA held that F.S. §440.34, arbitrary and capricious because it restricts attorney’s fees paid to claimant’s attorneys, while Employer/Carriers are free to contract for legal services without similar limitations.

The 1st DCA explained this decision protects an individual’s right to personally weigh the benefits and risks of exercising his or her statutory right to obtain redress for an alleged workers’ compensation injury.  The 1st DCA held the legislature has no interest in attempting to protect someone from entering into a contract of his or her own choosing and that an individual can waive his or her own personal constitutional rights, including statutory rights such as limitations on claimant-paid attorney’s fees.

The 1st DCA identified the case of Lee Engineering and Construction Company v. Fellows, 209 So. 2d 454 (Fla. 1968), as governing attorney fee agreements as codified in the Rules Regulating the Florida Bar.



Oscar Maldonado v. Waste Management, Inc./Gallagher Bassett Services, Inc.

JCC Weiss; Ft. Myers District; Order Date: April 19, 2016

OJCC Case: 15-003246JAW; D/A: 1/26/2015

Claimant’s Counsel: Salvatore J. Sicuso

Employer/Carrier’s Counsel: Sean L. Crosby

Briefly: COMPENSABILITY: AUTHORIZED TREATMENT – JCC Weiss denied the claimant’s request for evaluation and treatment with a cardiologist based upon the presumed correct opinion of the Expert Medical Advisor, Dr. Perloff, that the claimant does not require evaluation and treatment with a cardiologist as a result of the industrial accident. However, the JCC granted the claimant’s request for evaluation and treatment with an orthopedist and neurologist and found the EMA’s opinion wavered on these issues.

Summary: The claimant alleged a work-related accident while lifting a sofa bed resulting in headache, hypertension, and injury to his neck and right arm. The EMA physician, Dr. Perloff, testified the claimant was not truthful and noted histrionic and subjective complaints without any objective signs of injury. 

The JCC accepted Dr. Perloff’s opinion as the EMA that the claimant does not require an evaluation and treatment with a cardiologist as a result of the industrial accident. The JCC noted Dr. Perloff’s strong testimony that it “makes absolutely no sense whatsoever, the hypothesis that somebody’s hypertension would be related to an orthopedic injury.  That doesn’t happen.  That’s just not what it is”. 

However, the JCC also found that Dr. Perloff wavered in his opinion on whether the claimant required an evaluation and treatment with an orthopedist and neurologist. The JCC found Dr. Perloff’s testimony on the issues of treatment with an orthopedist and neurologist changed from those opinions appearing in his report.  As a result, there was clear and convincing evidence to reject what the EMA wrote in his report and grant the claims for authorization and evaluation and treatment with an orthopedist and neurologist.

Lourdes Martinez v. Racetrac Petroleum, Inc./ARCH Insurance Company, Broadspire

JCC Weiss; Ft. Myers District; Order Date: April 19, 2016

OJCC Case: 15-001200JAW; D/A: 10/2/2014

Claimant’s Counsel: Carolyn Friedman Frank & Maria Isabel Burghardt

Employer/Carrier’s Counsel: Kevin Clarke

Briefly: COMPENSABILITY; IDIOPATHIC CONDITION – JCC Weiss denied compensability of the claimant’s right ankle fracture and found the claimant failed to meet her burden of proof to show that she fell because she was dizzy as a result of the medications she was taking due to the prior industrial accident.

Summary: The JCC found there was no credible evidence the medications the claimant was taking because of her prior industrial accident caused her to be dizzy and fall, fracturing her ankle. The JCC found there was no contemporaneous evidence other than the claimant’s own testimony that she fell because she was dizzy.  The JCC accepted the presumed correct opinion of the Expert Medical Advisor, Dr. Wachsman, that the claimant’s dizziness is subjective and noted Dr. Wachsman was unable to state that the major contributing cause of the claimant’s fall at home was the dizziness caused by medications prescribed due to the prior industrial accident.  Ultimately, the JCC found that claimant had an unexplained fall at home.

The JCC rejected the claimant’s self-serving, after-the-fact testimony that she was dizzy as the result of medications she was taking and noted the claimant gave a history immediately following the fall that she did not know why she fell. The JCC found that, even assuming the claimant was dizzy and that was why she fell, there is a lack of credible medical evidence proving that the dizziness was caused by medications. 

The JCC candidly said he did not believe the claimant and appointed an Expert Medical Advisor, at the insistence of the Employer/Carrier, to give the benefit of the doubt to the claimant.

Aladnie Wilson v. Horizon Coach Lines/Berkshire Hathaway Homestate Insurance Company

JCC Hill; Gainesville District; Order Date: April 19, 2016

OJCC Case: 13-028214MRH; D/A: 11/15/2013

Claimant’s Counsel: D. Robert Wells

Employer/Carrier’s Counsel: Carla Wester & David Sammons

Briefly: BREAK IN CAUSATION CHAIN; MAJOR CONTRIBUTING CAUSE – JCC Hill granted the claimant a return appointment with the authorized orthopedist and denied the Employer/Carrier’s defense that the claimant’s need for treatment is personal in nature. The JCC found the Employer/Carrier did not present any argument or evidence to establish a break in the causal connection between claimant’s injury and the treatment sought.

Summary: The JCC found the claimant met his burden to prove the causal relationship between the compensable injury and requested benefit, but noted the claimant must still establish that the treatment sought is medically necessary.

The JCC accepted the testimony of Dr. Langone, the claimant’s IME physician, over that of Dr. Badia, claimant’s authorized orthopedist, on the grounds that Dr. Badia’s testimony appeared argumentative and evasive, and that Dr. Badia was unwilling to see the claimant to determine if he continued to have hypersensitivity which might require treatment. Based upon Dr. Langone’s opinion, the JCC ordered a follow-up medical evaluation and additional treatment, if necessary, as a result of the work accident.