Binocular Man

There are 2 important workers’ compensation cases pending before the Florida Supreme Court that could significantly impact the entire system. In Castellanos v. Next Door Company/Amerisure Ins. Co., issued on October 23, 2013, the First DCA certified a question to the Florida Supreme Court as a question of great public importance. The First DCA very bluntly asked the Supreme Court to rule on constitutionality of the attorney’s fee provisions of sec. 440.34, Florida Statutes.

There is very little discussion of the facts of the claim. The Court explained only that the JCC awarded an attorney’s fee of $164.54 for 107.2 hours of attorney time required to secure the contested benefits. This resulted in a fee of $1.53 per hour.

The court’s analysis centers primarily on a Judge of Compensation Claim’s lack of authority to rule on constitutionality of a statute. After explaining that a JCC lacks jurisdiction to make a finding of constitutionality, the First DCA asked the Supreme Court to determine whether the attorney’s fee provisions in the Florida Workers’ Compensation Law offend constitutional rights of access to the courts, due process, equal protection, and other miscellaneous protections in the Florida Constitution and U. S. Constitution.

Another important case pending before the Florida Supreme Court is Westphal v. City of St. Petersburg. This case is centered primarily on the category or nature of benefits owed to an injured worker when he has exhausted 104 weeks of temporary disability benefits, but is not yet deemed at maximum medical improvement by his treating physician. After rendering its original opinion, the First DCA reconsidered the case en banc, meaning that all 12 Judges on the court participated in oral argument and the written opinion. The second Westphal opinion is substantially different from the first. The current Westphal opinion is over 70 pages long and contains multiple concurring and dissenting opinions. The breadth of disagreement among the judges is remarkable.

Kristen Johannessen has undertaken an exhaustive review of the Westphal opinion that has been appealed to the Florida Supreme Court. Ms. Johannessen has cited the relevant statutes and the decisions from the First DCA affected by Westphal. She concluded with an outline of the various options before the Florida Supreme Court in ruling on Westphal. Westphal is an important case that could substantially change the landscape of Florida workers’ compensation claims. Please find a link to the seminar outline below for which the firm has obtained approval for Continuing Education credits. Contact our office to schedule a seminar.

Kristen L. Johannessen