The claimant's bar tossed what it believed was a live 'attorneys fee' grenade to the first District -- but instead of holding it, the Court quickly tossed it over to the Supreme Court where it will either prove itself a dud, or explode: we're holding our breath!

Castellanos vs. Next Door Company

Case No. 1D12-3639

In a case decided (or not decided!) by the First District Court of Appeal 10/23/13, Claimant challenged the act as unconstitutional in its restriction, under the formula set forth in section 440.34 (1), Florida statutes (2009), to an attorney's fee of only $164.54 where the attorney had expended 107.2 hours on Claimant's behalf to obtain the benefit (which works out to a $1.53 an hour). The court noted and did the following:

• Even though the JCC described the statutory fee as inadequate, the District Court of course approved of the JCC's determination he had no jurisdiction to consider the constitutional question.
• Even though the constitutional question was properly before the 1st DCA, it determined -- based on (let's just say, everything that has happened thus far) --that it was "bound to conclude that the statute is constitutional, both on its face and as applied."
• The District Court noted in that in the landmark 'Murray' case, while the Supreme Court essentially dodged the constitutional question, the Supreme Court certainly seemed to indicate the statute was not unconstitutional.
• And without another word, the 1st DCA then certified the question of the constitutional adequacy of the fee to the Supreme Court!
• What?!?

What does it mean? Why no comment one way or the other? We can only guess.

Here is our guess. The District Court is tired. As in the movie Ground Hog Day, the same cases keep coming back, and despite the personal feelings of individual members of the Court there is not much the Court can do about them. The Court has tried this, and it has tried that - - and while the statute's inflexibility to even allow for the possibility of an alternate fee in a situation like this strikes it (and good many others) as unfair -- as we have seen in Westphal (so far), "counting" (weeks, dollars, percentage points of impairment, etc.) rarely results in unconstitutionality.

But: recall in Murray, the District Court concluded the statute was constitutional - - it was the Supreme Court that acted: but the Supreme Court did something unexpected: an ultra-technical reading of the statute that yielded a technical flaw which was used as the basis for kicking the statute out, a flaw which legislature quickly corrected in 2009. Now, here we are again, with that "perfect storm" of a fee we all knew would be presented one day. With Halloween just around the corner, we can say the legislature has enacted a statute that says in effect "no treat: do your worst trick," essentially defying the courts to do something about it. Well, now we will know for sure if anything can be done about it.

MKRS LAW PROJECTION:

We have seen the Supreme Court tackle 'unfairness,' as it did in a long-ago MKRS case wherein it said it's the legislature's business if it wants to compensate the loss of a violinist's finger the same as a jack hammer operator's finger (Mims &; Thomas Mfg. Co. v. Ferguson, 340 So. 2d 920 (Fla. 1976). But these are provocative facts -- and this time we also have that "other" storm coming from the other direction at the same time on the 'benefits' side of the equation, Westphal.

When will they decide? We really have no way of knowing -- it could anywhere from a few months to even a year.

Huge explosion or dud? We will all learn, but we hear ticking sounds.

Bottom Line: It is extremely difficult to shake all this up and pour out 'the' answer, but while the statute is clearly "unfair" in this application -- individual hard cases do not impugn the integrity of the system as a whole, and therefore MKRS Law projects the act should, and will be, upheld.

About the Author:

H. George Kagan was named among the "Top 100" Florida Super Lawyers for two years and included among Florida Super Lawyers for the last eight (including, as was recently announced, 2013). In 2012 he received Martindale-Hubbell's 30^th Anniversary “AV- Preeminent” rating (Highest Possible Peer Review Rating in Legal Ability & Ethical Standards), and has for seventeen years seen continuous inclusion in Best Lawyers in America. He is also immediate past chair of the national Workers' Compensation Committee of DRI: Voice of the Defense Bar, where he inaugurated the National Workers' Compensation Review, now in its 4^th year.

In 2010 George was inducted into the American Bar Association's College of Workers' Compensation Lawyers, and his firm, Miller Kagan Rodriguez & Silver was designated as one of the nation's ‘Best Law Firms' by US News and World Report from 2010 to 2012. In January 2012, he was inducted into the inaugural class of the Florida Workers' Compensation Hall of Fame. Also in 2012, George lectured on the foundational topic of ‘medical benefits' at ‘The Forum' –- the combined Florida Bar Board Certification Course tied to the WCCP Claims Professionals CWCL Certification course.

You can learn more about Mr. Kagan here.

His firms website is www.mkrs.com.

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