FL Case Law Summaries – 5/2/16
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JCC ORDERS
Keith Switzer v. Vern’s Insulation/Zurich American
JCC Anderson; Daytona Beach District; Order Date: April 28, 2016
OJCC Case: 15-012721WWA; D/A: 1/12/2015
Claimant’s Counsel: Clint Lavender
Employer/Carrier’s Counsel: Jennifer Reimsnyder
Briefly: COMPENSABILITY – JCC Anderson denied compensability of the claimant’s back injury and found that, although the parties agree the claimant sustained a compensable knee injury, there was no mention of a back injury in the medical records for days or even weeks after the accident, despite the claimant’s testimony.
Summary: The JCC found there was a lack of any mention of a back injury to the initial medical providers and there was a lack of corroborative testimony from various supervisors and employees. The JCC accepted the testimony of the project safety director who testified the claimant never told him he had injured his back.
The JCC considered that injuries do not always manifest themselves immediately, but noted the medical records do not reflect mention of a back injury for days or even weeks after the accident.
Carlos Vargas v. Custom Fab, Inc./Sentry Insurance A Mutual Company
JCC Pitts; Orlando District; Order Date: April 28, 2016
OJCC Case: 15-022179NPP; D/A: 8/7/2015
Claimant’s Counsel: Chadwick Lawrence
Employer/Carrier’s Counsel: Sean L. Crosby
Briefly: COMPENSABILITY – JCC Pitts denied compensability of the alleged injury and found the claimant was not injured on the date of accident as alleged. The JCC declined the claimant’s suggestion to simply conform the claim to the evidence by finding a different accident date.
Summary: The claimant testified he was injured in August 2015 while working as a maintenance mechanic and that there was no supervisor around to report the accident. However, the JCC noted the human resources representative testified the claimant was on vacation on the date of accident. The JCC also noted a MRI report that reflected the claimant’s injuries related to a motor vehicle accident without mention of a work-related injury.
The JCC declined the claimant’s suggestion to simply conform the claim to the evidence by finding a different accident date. The JCC stated he could not do so without prejudicing the rights of the Employer/Carrier as the actual date of the alleged accident is material to the Employer/Carrier’s defense. The JCC found it was clear the Employer/Carrier defended the claim in part because the claimant could not have been injured on August 7, 2015, as a result of an unwitnessed accident because he was on scheduled vacation on that date.
Yousef Hammad v. Hamaore, LLC d/b/a Atlantic Crew Transportation/Bridgefield Employers Insurance Company
JCC Hogan; Ft. Lauderdale District; Order Date: April 28, 2016
OJCC Case: 15-020616GBH; D/A: 1/11/2015
Claimant’s Counsel: William Bassett
Employer/Carrier’s Counsel: Scott H. Silver
Briefly: AVERAGE WEEKLY WAGE – JCC Hogan denied the increase in the average weekly wage and found the claimant was a part-time employee and that using the average weekly wage of a similar employee was appropriate.
Summary: The JCC found the claimant was hired to work part-time and noted the claimant testified he was never guaranteed, verbally or in writing, that he would receive 40 hours a week. The carrier paid indemnity benefits pursuant to F.S. §440.14(1)(b) and (f) and argued that the claimant was hired to work part-time. The Employer/Carrier determined the claimant’s average weekly wage by the earnings of a similar employee.
The JCC noted that F.S. §440.14(1)(f) requires the actual finding that the claimant was a part-time worker at the time of his injury, that the claimant had adopted part-time employment as his customary practice, and that under normal working conditions, he probably would have remained part-time worker during the period of disability. The JCC made each of these findings under the facts of this case.
SUPREME COURT ORDERS
Marvin Castellanos v. Next Door Company, et al
Supreme Court Order dated April 28, 2016
Case: NO. SC 13-2082
Petitioner’s Counsel: Richard Sicking, Mark Touby, Richard Chait, Michael Winer,
Respondent’s Counsel: Raoul G. Cantero, various Amicus Curiae
Briefly: CONSTITUTIONALITY OF FEE STATUTE – The Supreme Court of Florida held that F.S. §440.34 as amended in 2009 is facially unconstitutional and creates an irrebuttable presumption in violation of due process of law.
Summary: As many of you know, the Supreme Court of Florida accepted jurisdiction to evaluate and determine the constitutionality of the mandatory fee schedule which eliminated the requirement of a “reasonable” attorney’s fee. The Supreme Court of Florida issued a 55-page opinion setting forth the history of attorney’s fees in Florida Workers’ Compensation Law, factual circumstances surrounding many relevant cases, and an in-depth analysis of constitutional law as applied to F.S. §440.34.
The Supreme Court made several important determinations, including that the Legislature created an irrebuttable presumption in 2009 when they removed any consideration of reasonableness from the statute and removed any discretion from the JCC, or judiciary on review, to alter the statutory fee amount. The Supreme Court described this as a complete elimination of any ability of either the JCC or the reviewing Court to deviate from the statutory formula. The Court held that the conclusive fee schedule prevents all injured workers, whether they have small-value or high-value claims, from presenting evidence to prove that the fee is inadequate in any given case and, therefore, is in violation of the state and federal constitutional guarantees of due process.
The Supreme Court identified a three-part test for determining the constitutionality of a conclusive statutory presumption and held the rebuttable presumption of the statutory guidelines under F.S. §440.34 failed the three-part test. First, the Supreme Court determined that the Legislature’s concern about the excessiveness of the attorney’s fee award is not a reasonable basis for the unyielding fee schedule. Next, the Supreme Court determined that there is no reasonable basis to assume the conclusive fee schedule actually serves the function of the statute to eliminate excessive fees and noted that excessive fees can still result under the fee schedule particularly if the time required to obtain significant benefits was relatively minor. Third, the Supreme Court determined that the elimination of any requirement that the fee be “reasonable” in 2009 completely eviscerated the purpose of the attorney’s fee provision and failed to provide any penalty to the Employer/Carrier for wrongfully denying or delaying benefits in contravention to the stated purpose of the statutory guideline scheme.
Following their conclusion that the Statute is unconstitutional, the Supreme Court explained the prior version of F.S. §440.34, the statute’s immediate predecessor to the 2009 amendment, is revived. The Court noted this is the statute that was addressed by the Supreme Court decision of Murray v. Mariner Health, 994 So. 2d 1051 (Fla. 2008).
The Supreme Court emphasized that the fee schedule remains the starting point for a determination of workers’ compensation attorney’s fees, and that the revival of the predecessor statute does not mean the claimant’s attorneys will receive a windfall. Only when the claimant can demonstrate, based on the standards articulated by the Florida Supreme Court in the 1968 decision of Lee Engineering and Construction Company v. Fellows, 209 So. 2d 454 (Fla. 1968), that the fee schedule results in an unreasonable fee, such as in the Castellanos case, will the claimant’s attorney be entitled to a fee that deviates from the fee schedule.
Throughout the opinion, the Supreme Court emphasized the right to a reasonable prevailing party attorney’s fee has been a key feature of the state’s workers’ compensation law since 1941. The Court specifically found that the 2009 enactment of a mandatory fee schedule created an irrebuttable presumption that every fee calculated in accordance with the fee schedule will be reasonable to compensate the attorney for his or her services and that this is clearly not true.
Daniel Stahl v. Hialeah Hospital/Sedgwick CMS
Supreme Court Order dated April 28, 2016
Case: SC15-725
Petitioner’s Counsel: Mark Zientz
Respondent’s Counsel: Kenneth Bell, various Amicus Curiae
Briefly: CONSTITUTIONALITY OF CHAPTER 440; EXCLUSIVE REMEDY – Following the Supreme Court of Florida’s acceptance of jurisdiction, consideration of the briefs, and the presentation of oral arguments, the Court discharged jurisdiction over this case involving constitutional challenges to various provisions of Chapter 440, including a challenge to the Statute’s exclusive remedy provision.
Cynthia Richardson v. Aramark/Sedgwick CMS
Supreme Court Order dated April 28, 2016
Case: SC14-738
Petitioner’s Counsel: Richard W. Ervin & Charles Leo
Respondent’s Counsel: James H. Wyman
Briefly: CONSTITUTIONALITY OF ATTORNEY’S FEE – The Supreme Court found that Castellanos resolved the pending issue regarding constitutionality of the fee award under F.S. §440.34 and remanded for further proceedings.
Louis P. Pfeffer, et al v. Labor Ready SE, Inc., et al
Supreme Court Order dated April 28, 2016
Case: SC14-1325
Petitioner’s Counsel: Michael J. Winer
Respondent’s Counsel: Ronald G. McCormick, various Amicus Curiae
Briefly: CONSTITUTIONALITY OF ATTORNEY’S FEE – The Supreme Court found that Castellanos resolved the pending issue regarding constitutionality of the fee award under F.S. §440.34 and remanded for further proceedings.
Henry Diaz v. Palmetto General Hospital, et al
Supreme Court Order dated April 28, 2016
Case: SC14-1916
Petitioner’s Counsel: Kimberly Hill
Respondent’s Counsel: Russell Young
Briefly: CONSTITUTIONALITY OF ATTORNEY’S FEE – The Supreme Court found that Castellanos resolved the pending issue regarding constitutionality of the fee award under F.S. §440.34 and remanded for further proceedings.