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In Castellanos v. Next Door Company/Amerisure Insurance Company, 38 Fla. L. Weekly D2232a (Fla. 1st DCA October 23, 2013), the claimant argued that § 440.34, Fla. Stat., should be deemed in violation of several constitutional provisions. The Judge of Compensation Claims (JCC), pursuant to the statutory formula outlined in § 440.34, awarded claimant's counsel an attorney fee of only $164.54 for 107.2 hours of legal work reasonably necessary to secure the claimant's workers' compensation benefits. The appellate court, noting that the award may be inadequate from a practical standpoint, agreed that the statute required this result.

The 1st DCA held that the JCC does not have authority to address the constitutionality of the statute and that the proper jurisdiction to address this issue was with the reviewing court. The 1st DCA noted that it had previously addressed this question and found the statute to be constitutional in its prior decisions of Kauffman, Campbell, Lundy and Wood; therefore, it was "bound" by precedent. As a result, the 1st DCA concluded that § 440.34 is constitutional both on its face and as applied to this case.

However, the 1st DCA also noted that the Florida Supreme Court had addressed the attorney fee provisions in Murray v. Mariner Health, 994 So.2d 1051 (Fla. 2008). While noting that it disapproved of the 1st DCA's decisions in Lundy, Campbell, and Wood, the Florida Supreme Court did not address any constitutional issues in Murray and instead resolved the issue based on statutory construction. Therefore, the Supreme Court had not specifically addressed the 1st DCA's reasoning as to constitutionality in Lundy, Campbell, and Wood.

In response to the Murray decision, the Florida legislature amended § 440.34 in 2009 to eliminate the ambiguity that had been the basis of the Florida Supreme Court's decision. Therefore, in light of the current circumstances, the 1st DCA certified to the Florida Supreme Court the question of whether the award of attorney's fees in this case is adequate and consistent with the access to courts, due process, equal protection and other requirements of the Florida and federal constitutions.

Since Murray and the 2009 amendments to the statute, claimants have continued to challenge the attorney fee provisions of Chapter 440. The claimant's bar has focused on cases, like Castellanos, in which the statutory attorney fee formula resulted in a low hourly rate to the claimant's attorney. (In Castellanos, a fee of $164.54 for 107.2 hours suggests an hourly rate of $1.53 per hour). The hope of the claimants' bar is that the low hourly rate will appear inequitable to the appellate courts such that they will be forced to address the question of whether the statute is constitutional.

 

 

This summary was prepared by Elise Geibel of our firm.


Elise Geibel

 

 

38 Fla. L. Weekly D2232a

 

Workers' compensation -- Attorney's fees -- Statutory formula for attorney's fee awards set forth in section 440.34(1) is constitutional, both on its face and as applied in instant case in which claimant's counsel was awarded fee of less than $200 for over 100 hours of legal work reasonably necessary to secure claimant's workers' compensation benefits -- Question certified whether the award of attorney's fees in this case is adequate, and consistent with the access to courts, due process, equal protection, and other requirements of the Florida and federal constitutions

MARVIN CASTELLANOS, Appellant, v. NEXT DOOR COMPANY/AMERISURE INSURANCE CO., Appellees. 1st District. Case No. 1D12-3639. Opinion filed October 23, 2013. An appeal from an order of the Judge of Compensation Claims. Gerardo Castiello, Judge. Date of Accident: October 12, 2009. Counsel: Richard A. Sicking, Coral Gables, Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, and Mark A. Touby of Touby, Grindal & Chait, P.L., Coral Gables, for Appellant. Roberto Mendez of the Law Group of Mendez & Mendez, P.A., Hollywood, for Appellees. Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Richard W. Ervin of Fox & Loquasto, P.A., Tallahassee, for Florida Justice Association, Amicus Curiae. Geoffrey Bichler of Bichler, Kelley, Oliver & Longo, P.L.L.C., Maitland, for Fraternal Order of Police, Amicus Curiae. Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, and Kenneth B. Schwartz of Kenneth Schwartz, P.A., West Palm Beach, for Florida Workers' Advocates, Amicus Curiae. Christopher Smith, Tampa, for the Workers' Compensation Section of the Florida Bar, Amicus Curiae.

(BENTON, J.) Constrained by the statutory formula set forth in section 440.34(1), Florida Statutes (2009), the judge of compensation claims awarded claimant's counsel an attorney's fee of only $164.54 for 107.2 hours of legal work reasonably necessary to secure the claimant's workers' compensation benefits. We do not disagree with the learned judge of compensation claims that the statute required this result, and are ourselves bound by precedent to uphold the award, however inadequate it may be as a practical matter.

The judge of compensation claims, as an executive branch adjudicator, was without authority to declare section 440.34 unconstitutional. See Barr v. Watts, 70 So. 2d 347, 350-51 (Fla. 1953); State ex rel. Atl. Coast Line Ry. Co. v. State Bd. of Equalizers, 94 So. 681, 683 (Fla. 1922) (holding the "right to declare an act unconstitutional . . . cannot be exercised by the officers of the executive department under the guise of the observance of their oath of office to support the Constitution"); Ariston v. Allied Bldg. Crafts, 825 So. 2d 435, 438 (Fla. 1st DCA 2002) ("A JCC clearly does not have jurisdiction to declare a state statute unconstitutional or violative of federal law."); Hensley v. Punta Gorda, 686 So. 2d 724, 725 (Fla. 1st DCA 1997) ("As an administrative officer vested with only certain limited quasi-judicial powers, a judge of compensation claims does not have jurisdiction to declare a portion of the Florida Workers' Compensation Act unconstitutional or violative of a federal statute.").

The constitutional validity of a statute governing administrative proceedings is instead a question for the reviewing court. "Accordingly, this court has jurisdiction to consider such claims in the first instance." Id. (citing Sasso v. Ram Prop. Mgmt., 431 So. 2d 204, 207-08 (Fla. 1st DCA 1983), approved 452 So. 2d 932 (Fla. 1984)). See Anderson Columbia v. Brown, 902 So. 2d 838, 841 (Fla. 1st DCA 2005) ("The JCC and the parties recognized that the JCC does not have jurisdiction to address the constitutionality of a statutory provision. Thus, the claimant's opportunity to mount a constitutional challenge would be on direct appeal of the attorney's fee order." (citation omitted)); Grabau v. Dep't of Health, Bd. of Psychology, 816 So. 2d 701, 706-07 (Fla. 1st DCA 2002) ("The facial unconstitutionality of a statute may be raised in a district court of appeal on direct review under section 120.68, Florida Statutes, after an aggrieved party completes the administrative process. Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 2d 153, 157 (Fla. 1982)."). See also Café Erotica v. Fla. Dep't of Transp., 830 So. 2d 181, 183 (Fla. 1st DCA 2002) (holding party need not argue the facial unconstitutionality of a statute before an administrative tribunal for the issue to be cognizable on direct appeal); Lee Cnty. v. Zemel, 675 So. 2d 1378, 1381 (Fla. 2d DCA 1996) (holding that appellees should have raised their due process claims on direct appeal of the administrative order rather than filing a subsequent action in circuit court).

In reaching our decision today, we have therefore considered claimant's arguments that section 440.34 should be deemed in violation of several constitutional provisions. Based on our precedent, however, we are bound to conclude that the statute is constitutional, both on its face and as applied. See Kauffman v. Cmty. Inclusions, Inc./ Guarantee Ins. Co., 57 So. 3d 919, 920-21 (Fla. 1st DCA 2011); Campbell v. Aramark & Specialty Risk Servs., 933 So. 2d 1255, 1256 (Fla. 1st DCA 2006), disapproved on other grounds by Murray v. Mariner Health, 994 So. 2d 1051, 1062 (Fla. 2008); Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So. 2d 506, 509-10 (Fla. 1st DCA 2006), disapproved on other grounds by Murray, 994 So. 2d at 1062; Wood v. Fla. Rock Indus. & Crawford & Co., 929 So. 2d 542, 545 (Fla. 1st DCA 2006), disapproved on other grounds by Murray, 994 So. 2d at 1062. In Kauffman, we recognized that section 440.34 was amended in 2009 in response to the supreme court's decision in Murray and noted that although Murray disapproved of this court's decisions in Lundy, Campbell, and Wood, the supreme court did not address any constitutional issues in Murray and "did not cast any doubt on the reasoning used in Lundy, Campbell, and Wood, in rejecting constitutional claims like those made herein." 57 So. 3d at 921.

In the circumstances, we certify to the Florida Supreme Court the following as a question of great public importance:

WHETHER THE AWARD OF ATTORNEY'S FEES IN THIS CASE IS ADEQUATE, AND CONSISTENT WITH THE ACCESS TO COURTS, DUE PROCESS, EQUAL PROTECTION, AND OTHER REQUIREMENTS OF THE FLORIDA AND FEDERAL CONSTITUTIONS.

The fee award is affirmed, and the question of its constitutional adequacy is certified to the supreme court.

Affirmed and question certified. (VAN NORTWICK and PADOVANO, JJ., CONCUR.)






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