The First District Court of Appeal issued an opinion today which rejects a "test case" prosecuted by members of the claimant's bar and Florida Academy of Trial Lawyers designed to, in essence, get around attorneys' fee limitations of Chapter §440.34 by 'importing' fee sanctions from civil litigation found in chapter §57.105 into the workers compensation setting.

ANALYSIS:

MKRS was enlisted to defend at the appellate stage after the case was successfully defended by Mark Ingram at the trial level -- and briefs were filed -- however, the Court granted oral argument, something done in roughly only some 10% of appeals, signaling interest on the Court's part, given that it had in the past referenced§57.104 (as pertains to legal assistant fees) in workers compensation matters, and so it wanted to know: why not the companion measure, §57.105, regarding essentially punitive attorney's fees for frivolous claims and defenses.

In Oral Argument on October 14, MKRS argued successfully that the 'relief' sought by Claimant in order to enhance a fee in this case -- would destabilize the workers compensation system by imposing punitive fees not only on E/C and their attorneys (50-50 split, or 100% E/C paid fee if E/C directed the attorney to act), but it would also allow E/C to go after the Claimant and claimant's attorney for the same fees.

Moreover, the measure would not only be applicable at the 'end' of the proceedings but also to any petitions/pleadings/defenses or positions taken along the way.

Also, whether the Florida Supreme Court rejects ClaimantCastellano's constitutionality attack or reverses and imposes a "reasonable fee" standard back into the law - - these chapter 57.105 fees would still have been applicable -- if the 1st DCA allowed Claimant Lane to succeed here.

"Destabilization" is not an exaggeration of what would follow claimant's success in this case.

FINAL COMMENT:

This decision is not yet final: Claimant has 15 days within which to file for rehearing. It does not seem to qualify for Supreme Court review on its face, but that might change subject to possible rehearing.

The court also disposed of a video deposition cost issue not independently significant in the context of this MKRS Landmark Alert.

For now, this is the law, and the 'bullet' (more like mortar shell!) has been dodged!

Parenthetically, MKRS has defended several"test cases" in recent months which have not resulted in opinions, including;

• Keith Elms v. Castle Constructions, Inc., October 10, 2014, 1D14-2275, rejecting an effort by similar members of the claimant's bar to establish entitlement to fees 30 days after an 'informal' PFB is filed, i.e., one sent only to E/C and not simultaneously filed with the division;
• On behalf of our client NASCAR, MKRS successfully defended attorney Zientz' efforts to strike the 104 week limitation on temporary 'psychiatric' claim benefits, a statute which is the mirror image of the temporary benefits statute involved in the Westfall challenge. Davis v. Nascar, 139 So. 3d 303 (Fla. 1st DCA 2014)May 29, 2014, May 29, 2014,

Visit here to access the full opinion.

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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