FL Case Law Summaries – 5/13/16
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JCC ORDERS
Tiffany Pratt v. Miami-Dade County School Board/Gallagher Bassett Services, Inc.
JCC Spangler; Miami District; Order Date: May 10, 2016
OJCC Case: 14-028824EDS; D/A: 9/27/2013
Claimant’s Counsel: Pro se
Alleged Former Counsel for Claimant: James A. Walker
Employer/Carrier’s Counsel: Michael J. Ring
Briefly: CLAIMANT-PAID ATTORNEY’S FEES – JCC Spangler denied the Verified Motion for claimant-paid attorney’s fees and found there was no signed contract for representation between the claimant and Attorney Walker, and that Mr. Walker did not secure benefits or perform any service that contributed to the actual value of benefits secured or the settlement reached.
Summary: The JCC found there was no written agreement between the claimant and Mr. Walker regarding representation. The JCC cited Rule 4-1.5(f)(2), Rules Regulating the Florida Bar, requiring that even in the case of an implied agreement, as contended by Mr. Walker, that a lawyer may not participate in a fee generated by contingency unless the agreement to do so is reduced to a written agreement signed by the client. The JCC found there was no such written agreement and that, as a matter of law, a lien for fees does not exist until it is determined by a judge of competent jurisdiction that a claimant is responsible for attorney’s fees incurred in obtaining compensation benefits for a claimant.
The JCC also found that Attorney Walker never actually participated in the development or prosecution of the case and, at best, only consulted with the claimant on one occasion. The JCC found that since Mr. Walker never performed any services regarding the presentation of the claim, it would be virtually impossible for Mr. Walker to conclude that a discussion alone contributed to the actual settlement. The claimant denied ever entering into a contract of representation, written or otherwise, with Attorney Walker and insisted that Mr. Walker played no role in the settlement negotiations, and there was no testimony provided as to the discussion between the Employer and the claimant which eventually led to the settlement reached.
The JCC denied the claimant-paid fee and found Mr. Walker did not represent the claimant and was never part of the claim until after it was settled. The JCC also noted that Mr. Walker never appeared as an attorney of record in the matter, and filed no pleadings on the claimant’s behalf .
Drew Broussard v. Southeast Lawn & Garden/CNA Insurance
JCC Hogan; Ft. Lauderdale District; Order Date: May 11, 2016
OJCC Case: 88-002086GBH; D/A: 9/23/1988
Claimant’s Counsel: Gloria M. Garcia
Employer/Carrier’s Counsel: Michelle Cabrera-Leon
Briefly: GOOD FAITH EFFORT TO RESOLVE ISSUES – JCC Hogan denied the Employer/Carrier’s Motion to Dismiss Petition for Benefits and found the Judge of Compensation Claims did not have the authority to “go behind” a counsel’s representation of good faith effort to resolve the dispute in a Petition for Benefits. The Employer/Carrier did not request sanctions under 60Q-6.125(4).
Summary: The Employer/Carrier filed a Motion to Dismiss and asserted that claimant’s counsel did not contact the Employer in an effort to resolve the dispute prior to filing a Petition for Benefits. The Petition included a certification by claimant’s counsel that a good faith effort was made to resolve the dispute prior to the filing of the Petition.
The JCC cited the case of Palm Beach County School District v. Blake, 91 So. 3rd 176, 178 (Fla. 1st DCA 2012) as holding that F.S. §440.192 does not independently give the JCC authority to “go behind” a counsel’s representations of good faith effort to resolve the dispute in a Petition for Benefits.
The JCC also explained that Administrative Code Rule 60Q6.125 would arguably permit the Employer/Carrier to seek sanctions for failure to comply with F.S. §440.192, but no such request was made in this case.
Jonathan Joseph v. Yve Hotel/Federal Insurance Company
JCC Medina-Shore; Miami District; Order Date: May 11, 2016
OJCC Case: 15-020207SMS; D/A: 8/22/2015
Claimant’s Counsel: Bobby Wells
Employer/Carrier’s Counsel: Allison Hartnett
Briefly: AGGRESSOR DOCTRINE – Following her review of the surveillance video, JCC Medina-Shore denied compensability of the incident and injuries and found the claimant lunged and ran toward a trespasser with the clear intent to injure the trespasser in an altercation. The JCC found the claimant’s injuries are not compensable under F.S. §440.09(3) which states that “compensation is not payable if the injury was occasioned primarily by the… willful intention of the employee to injury or kill himself, herself, or another.”
Summary: The JCC found it was undisputed that the trespasser never touched the claimant’s person prior to the claimant attacking him. The JCC rejected the claimant’s testimony that the trespasser jumped and lunged at him as there was no evidence of that in the video recording. Rather, the JCC found it was the claimant who lunged and ran toward the trespasser to injure him.
The JCC found the surveillance video showed the claimant running towards the trespasser with his fists reached out to the face of the trespasser. The video showed the claimant striking the trespasser repeatedly, placing him in a chokehold, and dragging him to the elevators.