Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

When an injured worker who is represented by counsel settles his workers' compensation claim for a lump sum, the JCC must review the attorney's fees charged to the claimant to ensure that they comply with the limited percentages for fees set forth in §440.34(1), Fla. Stat.  On the other hand, the JCC lacks the authority to deny an award of attorney's fees based upon the amount of costs the attorney elects to charge his client.  See Eshlibi v. Consolidated Box Mfg., a case which I discussed here. 

 

So can the attorney charge his client extra for the time his paralegal spent on the case by categorizing that time as a "cost"?  Nope.  Paralegal time is required to be included in attorney time.  Thus, it is included within the statutory fee which the lawyer can charge the client.  See Demedrano v. Labor Finders of Treasure Coast, decided on 1/12/2009.

 

The court was careful to point out that its decision was not affected by last October's Florida Supreme Court decision in Murray v. Mariner Health.  That case concerned a carrier-paid, not a claimant-paid, attorney's fee.

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Although the JCC has the authority to award costs against the E/C when the claimant prevails in a workers' compensation proceeding, he has no authority to award interest on those costs.  So said the First DCA in Torres v. Costco Wholesale Corp., decided on 9/26/2008. 

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The standard of review employed by the First DCA is often critical to the outcome of the case.  In Moore v. Hillsborough Co. School Bd., for example, the court noted that a JCC's decision denying costs and an upward departure from the statutory attorney's fee schedule (in a pre-2003 case) is reviewed for "abuse of discretion."  Under that standard of review, the court held that the JCC did not abuse his discretion in refusing to depart from the statutory fee schedule and in failing to award costs associated with legal assistants where the claimant did not satisfy her burden of proving that the time spent by the assistants was nonclerical.

 

On the other hand, the court held that the JCC erred "as a matter of law" in declining to award reimbursement for certain deposition costs if the testimony was used in any way to support the award of benefits.

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Under the 2003 amendment to §440.34, costs are awardable against the "nonprevailing party" in workers' compensation litigation.  Is the claimant  the "nonprevailing party" when he voluntarily dismisses his petition for benefits short of an order on the merits of the petition? Yes, said the First DCA in Palm Beach County School District v. Ferrer, decided on 8/4/2008.

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As I discussed here, one of the legislative changes enacted in 2003 concerns the issue of costs in workers' compensation litigation.  Formerly, §440.34(3) authorized an award of costs only in favor of a prevailing claimant in a workers' compensation proceeding.  The 2003 amendment to the statute, however, authorizes an award of costs in favor of the prevailing party.

 

Construing this amendment in Guckenberger v. Seminole County, decided on 4/23/2008, the First DCA held that the JCC could award costs in favor of the prevailing employer/servicing agent and against the non-prevailing claimant even though he had not reserved jurisdiction to do so in his final compensation order.  The claimant's challenge to the amendment on "public policy" grounds, said the court, was better addressed to the legislature.

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One of the many changes enacted by the 2003 legislature was an amendment to §440.34(3), Fla. Stat., which, for the first time, allowed an employer/carrier to recover its litigation costs from an unsuccessful claimant.  Must the employer/carrier specifically plead entitlement to costs in the pretrial stipulation in order to recover them? No, said the First DCA in F.A. Richard and Associates v. Fernandez, reversing the JCC's conclusion to the contrary.

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In 2001, the legislature amended s.440.20(11), Fla. Stat., to repeal the JCC's former duty to review a proposed lump-sum settlement of an injured worker's right to future benefits to ensure that it was in the best interests of the worker.  See Ch. 2001-91, s.17, Laws of Fla.  Under the revised statute, in cases where the injured worker is represented by counsel, the JCC has jurisdiction only to review the amount of attorney's fees paid by the claimant to his attorney for obtaining the settlement and to ensure that any child support arrearages owed by the worker are paid from the proceeds of the settlement. 

 

But what happens if the JCC approves the amount of attorney's fees but does not approve of the amount of costs being charged to the worker by his attorney?  Can the JCC refuse to approve both the attorney's fees and the costs?  That's what the JCC did in this order.

 

But the First District Court of Appeal has now said no.  In Eshlibi v. Consolidated Box Manufacturing, decided on 7/31/2001, the Court said that "a JCC lacks statutory authority to deny the attorney's fees based upon costs charged to the claimant" in lump-sum settlement cases.

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