FL Case Law Summaries – 9/13/16
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UPDATE ON ATTORNEY’S FEES – HOW MUCH ARE THE COURTS AWARDING?
The following is an update on JCC and DCA attorney fee decisions published in August 2016, subsequent to the Florida Supreme Court’s opinion in Marvin Castellanos v. Next Door Company, et al, 192 So. 3d 431 (Fla. 2016).
Many of these decisions focus on the appropriate hourly rate for attorney fee time in a specific District or for a particular attorney.
1ST DCA ORDERS
Anthony Salzman v. Eli Reyes
Appeal of the Order from JCC Marjorie Hill
DCA Order Date: August 18, 2016
Case: 1D16-593; D/A: 10/27/2011, 1/6/2013
Appellant’s Counsel: Bill McCabe & Anthony Salzman
Appellee’s Counsel: Bryce A. Schmidt
Briefly: ATTORNEY’S FEES; CHARGING LIEN – The 1st DCA reversed Judge Hill’s denial of the former claimant’s attorney’s Verified Motion for Approval of a Stipulated Quantum Meruit Attorney’s Fee and found the JCC abused her discretion when she rejected the parties’ stipulation as to both the entitlement and amount of a quantum meruit fee.
Summary: The DCA reiterated that Florida has adopted the modified quantum meruit rule, “which limits recovery to the maximum amount of the contract fee in all premature discharged cases involving both fixed and contingency employment contracts,” and that quantum meruit liens apply to workers’ compensation settlements.
Here, former counsel for the claimant filed a verified motion to determine attorney’s charging lien and described services he performed for which he was seeking a fee. The claimant, through the successor attorney, agreed that the former attorney properly filed a lien, that quantum meruit is the proper method for determining a fee, and that the time expended for the fee amount was reasonable. The JCC entered an order following an evidentiary hearing denying the stipulated quantum meruit fee based upon a determination that former claimant’s counsel did not establish why he was discharged and did not show that he obtained any benefit for which he would be entitled to a claimant-paid attorney’s fee.
The DCA held that in order to reject the parties’ stipulation in this case the JCC was required to find some basis beyond the finding that the Appellant did not present sufficient evidence to establish a stipulated fact. The DCA found the Record contained no competent substantial evidence to refute the parties’ stipulation that the Appellant is entitled to a quantum meruit fee of $1,375.00.
JCC ORDERS
Robert Izzo v. Orange County Fire and Rescue/Johns Eastern Company, Inc.
JCC Sculco; Orlando District; Order Date: August 4, 2016
OJCC Case: 13-027375TWS; D/A: 2/23/2013, 2/25/2013
Claimant’s Counsel: Paolo Longo
Employer/Carrier’s Counsel: Karen J. Cullen
Briefly: ATTORNEY’S FEES – JCC Sculco found the statutory fee of $4,203.30 based on $34,532.97 of past and future benefits secured, to be manifestly unfair. The JCC ordered the Employer/Carrier to pay attorney Paolo Longo $17,940.50 based upon 67.7 hours of attorney time at $265 per hour. The JCC noted that Mr. Longo has significant experience and expertise in workers’ compensation and an excellent reputation, but is not currently board-certified and found the rate of $265 is reasonable and appropriate.
Tamara Barroso v. Wyndham Worldwide Corporation/Liberty Mutual Insurance
JCC Rosen; West Palm Beach District; Order Date: August 10, 2016
OJCC Case: 15-015516SLR; D/A: 6/14/2015
Claimant’s Counsel: David C. Wiitala
Employer/Carrier’s Counsel: Robert Swanson
Briefly: ATTORNEY’S FEES – JCC Rosen ordered the Employer/Carrier to pay attorney’s fees in the amount of $28,875 based upon an hourly rate of $350 for 82.5 hours.
Summary: The JCC noted that counsel secured a finding of compensability, an award of temporary partial disability benefits of $2,847 before offset for unemployment compensation, payment of $561 in emergency room bills and authorization of further medical treatment. The JCC found the application of the guideline fee to the benefits retained would result in a fee so low that the claimant could not be expected to retain competent counsel to represent her.
The JCC found that this was a complicated case which was totally controverted and but for the intervention of claimant’s counsel, claimant would have received no benefits. The JCC found the issues were unique, required exceptional representation by claimant’s counsel, and the attorney for claimant’s counsel’s expertise was necessary to secure the benefits awarded to the claimant.
Paula Bustamante v. CT Partners Executive Search, Inc./CHUBB Group of Insurance Companies
JCC Kerr; Miami District; Order Date: August 11, 2016
OJCC Case: 12-001533MGK; D/A: 6/2/2011
Claimant’s Counsel: Barry Pemsler
Employer/Carrier’s Counsel: Kip Lassner
Briefly: ATTORNEY’S FEES – JCC Kerr ordered the Employer/Carrier to pay $6,825.00 in attorney’s fees based upon a $325 per hour attorney fee rate and 21 hours of attorney time spent securing benefits for the claimant.
Summary: The JCC found that claimant’s counsel secured payment of impairment benefits in the amount of $12,692.88 resulting in a statutory fee of $96.15 which is unreasonable under the facts of this case.
The JCC reduced the claimed 21.5 hours by 0.5 hours and determined 21 hours of attorney time was spent securing benefits.
Claimant’s counsel argued that he is entitled to a rate between $300-$350 per hour and that $300 per hour would be appropriate. The JCC concluded that an hourly rate of $325 is reasonable under the facts of this case and found that while the issues were not complex, claimant’s counsel had no choice but to litigate the issue as the Employer/Carrier failed to provide benefits to the claimant despite having actual knowledge of entitlement to the same.
Justo Alberto Osorio (deceased) v. Colors Construction/Guarantee Insurance Company
JCC Rosen; West Palm Beach District; Order Date: August 12, 2016
OJCC Case: 12-021749TMB; D/A: 7/26/2012
Claimant’s Counsel: Mark D. Dickstein & Mark Touby
Employer/Carrier’s Counsel: Tara Schlairet
Briefly: ATTORNEY’S FEES – JCC Rosen ordered the Employer/Carrier to pay Mr. Dickstein an attorney’s fee of $133,893.75 for securing benefits based upon 357.05 hours of attorney time at a rate of $375 per hour.
Summary: JCC Rosen found that JCC Basquill previously presided over the final merits hearing and ordered the Employer/Carrier liable for payment of indemnity benefits using an average weekly wage of $560 and ordered the medical benefits. The JCC found that many of the claims that were the subject of a prior final hearing were intertwined with collateral issues concerning criminal fraud and contract law, as well as immigration and tax issues. The JCC found this was an extremely unusual case and required extensive litigation and discovery.
The JCC found Mr. Dickstein to be a superior attorney and noted affidavits submitted from several attorneys who practice on insurance matters not related to workers’ compensation claims asserting that the reasonable hourly rate in the South Florida community ranges from $375-550. The JCC found Mr. Dickstein had overcome strenuous defenses to his claim by several defense attorneys.
Elizabeth Hernandez v. Best Cleaning Specialist, Inc./Summit/Retail First Insurance Company
JCC Massey; Tampa District; Order Date: August 15, 2016
OJCC Case: 15-008938MAM; D/A: 8/15/2013 & 1/15/2014
Claimant’s Counsel: Pro Se
Employer/Carrier’s Counsel: Ivette Linares-Moreno
Claimant’s Former Counsel: Bradley Douglas
Briefly: ATTORNEY’S FEES; CHARGING LIEN – JCC Massey awarded former claimant’s counsel an attorney’s fee in the guideline amount of $2,250.00 payable by the claimant out of her settlement funds.
Summary: During the course of Mr. Douglas’ representation of the claimant, he secured a settlement offer of $15,000 inclusive of fees and costs. Ultimately, the case settled for $20,000. The JCC found that Mr. Douglas should be entitled to a statutory guideline fee on the $15,000 offer, but not on the remainder of the settlement.
The JCC could find no basis on which to award an hourly fee as suggested by claimant’s former counsel, at the rate of $350 per hour for 17 hours of attorney time. The JCC found that this fee would significantly deplete the settlement funds so that it would not be “equitable,” which is a governing standard for charging liens. In fact, the JCC found it would be excessive under the circumstances.
Eva Maria Cuba v. New Wave Surgical/Helmsman Management Services
JCC Almeyda; Miami District; Order Date: August 17, 2016
OJCC Case: 14-021147ERA; D/A: 10/28/2013
Claimant’s Counsel: Monica De Feria Cooper
Employer/Carrier’s Counsel: Sal Richardson
Briefly: ATTORNEY’S FEE – JCC Almeyda denied entitlement to an attorney’s fee for failure to comply with the statutory requirement of F.S. §440.192(4), where there was no good faith effort to resolve the issue prior to filing the Petitions.
Summary: Claimant’s counsel testified her notes and her emails did not reflect that a good faith effort to resolve the issues was made prior to the filing of the Petition for Benefits. Consistently, the adjuster’s affidavit reflected no notes concerning such efforts made by claimant’s counsel. The JCC found the statutory requirement was not complied with. The JCC noted the 1st DCA in Palm Beach County School District v. Blake-Watson, 91 So. 3d 176 (Fla 1st DCA 2016) held that a dismissal was not appropriate if a certification had been made in the Petition for Benefits as the JCC could not look beyond the certification. The appropriate remedy is through sanctions following such a motion.
However, the JCC also noted that Section §440.192(7) prohibits the award of a fee by a JCC against an Employer/Carrier for services extended or costs incurred prior to the filing of a Petition that meets the requirements of §440.192. The JCC found he is without authority to award the claimant’s attorney a fee for the three petitions which did not comply with the §440.192 requirements.
Crystal Brown v. Fidelitone, Inc./PMA Management Corporation
JCC Lorenzen; Tampa District; Order Date: August 17, 2016
OJCC Case: 16-011293EHL; D/A: 1/9/2016
Claimant’s Counsel: John F. Sharpless
Employer/Carrier’s Counsel: Keith M. Haneian
Briefly: ATTORNEY’S FEES – JCC Lorenzen denied the claimant’s motion seeking approval of a $7,000 attorney’s fee, in excess of the guideline, to be paid by the claimant out of the claimant’s $35,000 settlement. The JCC ordered claimant’s counsel to either submit a new motion seeking no more than a guideline fee, or if he chooses to seek an excess fee, submit a better affidavit describing his time involved in documentation of benefits he actually obtained for his client.
Summary: The JCC noted that claimant’s retainer did not provide for an hourly fee, it provided for a percentage fee. Nevertheless, claimant’s counsel had urged the JCC to approve the $7,000 fee on the grounds that it was reasonable to rely on hourly rates charged for appellate fees of personal injury protection (PIP) litigation. The JCC rejected this argument and determined PIP litigation to be “nothing akin to workers’ compensation litigation” and the $7,000 fee was not reasonable under these circumstances.
The JCC found that if she were to award claimant’s counsel a fee for his work in this case, she would award a fee of $225 per hour for 20.3 hours of work.
Juan Carlos Linero v. Broward College/Gallagher Bassett Services, Inc.
JCC Forte; Ft. Lauderdale District; Order Date: August 26, 2016
OJCC Case: 14-011520IF; D/A: 5/6/2014
Former Claimant’s Counsel: Mark A. Touby
Employer/Carrier’s Counsel: Jorge A. Pina
Briefly: ATTORNEY’S FEE – JCC Forte denied entitlement to an attorney’s fee and found the change in physicians as authorized by the Employer/Carrier, based upon a subsequent Petition for Benefits filed by another attorney, did not relate back to the initial claim for compensability filed and later dismissed.
Summary: Claimant’s initial attorney, Mr. Touby, filed a Petition for Benefits in May 2014 claiming compensability. The Employer/Carrier filed an immediate response reflecting that the claim had been accepted as compensable. The day prior to state mediation, Mr. Touby filed a Notice of Resolution of all pending issues except for attorney’s fees and costs. Subsequently, Mr. Touby withdrew as counsel of record and the claimant became represented by another attorney who filed a Petition for Benefits requesting a change of physician and the Employer/Carrier authorized Dr. Rosabal.
It is Mr. Touby’s contention that the payments made to Dr. Rosabel were benefits secured by him and stemmed from his initial claim for compensability.
The JCC agreed with the Employer/Carrier and found that when Mr. Touby filed the initial Petition for Benefits claiming compensability, the claim had been accepted as compensable and medical benefits were being provided. Further, the JCC found that a change in physicians was authorized by the Employer/Carrier based on a subsequent Petition for Benefits filed by another attorney and did not relate back to the initial claim for compensability.
JCC ORDERS
Michael Wright v. Walmart Stores/Sedgwick CMS
JCC Anderson; Daytona Beach District; Order Date: September 1, 2016
OJCC Case: 97-009085WWA; D/A: 4/18/1997, 5/24/1997, 7/11/1998
Claimant’s Counsel: Bradley G. Smith
Employer/Carrier’s Counsel: John E. McLain
Briefly: MEDICALLY NECESSARY; BACKYARD POOL – JCC Anderson denied the request for a new pool, but ordered the Employer/Carrier to repair the existing pool and maintain it in working order for so long as aquatic therapy is medically necessary, and ordered the claimant to pay for electricity for the pool as well as for replacement filters and chemicals.
Summary: The JCC explained this case came down to one essential question: “Is a new pool medically necessary?” The JCC noted previous efforts to repair the pool have been thwarted by the claimant and it was clear he will be satisfied with nothing less than a new pool. However, the JCC also noted that workers’ compensation law only requires the Employer/Carrier to provide “medically necessary” services and supplies and it is the claimant’s burden to prove a new pool, as opposed to repairs to the existing pool, is medically necessary.
The JCC found the claimant failed to prove that a new pool is medically necessary and accepted the testimony of the witnesses provided by the Employer/Carrier that the existing pool can be repaired to provide claimant with the medically necessary aquatic therapy required.
Misael Carcasses v. Avco Industries, Inc.
JCC Castiello; Miami District; Order Date: September 1, 2016
OJCC Case: 14-006389GCC; D/A: 1/2/2014
Claimant’s Counsel: Peter M. Hoogerwoerd
Employer’s Counsel: William A. Heller
Briefly: MISREPRESENTATION DEFENSE – JCC Castiello denied the misrepresentation defense and rejected the Employer’s assertion that the claimant made false statements in an effort to secure workers’ compensation benefits.
Summary: Although the JCC described several aspects of the testimony from each side to be lacking in credibility, the JCC found the claimant’s version of events was more credible. The JCC noted that an independent witness wholly supported the claimant’s version of events, including the claimant’s representations as to his subjective complaints and physical limitations as a result of the accident.
The JCC found that because no medical care at all was authorized, the claimant was justified in obtaining primary care from Dr. Rudolph Moise, whom the JCC deemed authorized by operation of law. The JCC accepted the opinion of Dr. Moise regarding the claimant’s inability to work and awarded temporary total disability benefits.