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Employer/Carriers strive to resolve as many outstanding carrier-paid attorney fees as possible before the unknown future of statutory fees becomes reality.  The Worker’s Compensation Bar expects the  Florida Supreme Court to release its decision on the constitutionality of Florida’s statutory attorney fees any day.  As such, many carriers are working to resolve the fees within the parameters of the statute as it is currently written.

The Castellanos v. Next Door Co./Amerisure 124 So. 3d 392 (Fla. 1st DCA 2013), rev. pending, SC13-2082, case will decide the constitutionality of the strict interpretation of the statutory attorney fee statute. This case, heard before the Florida Supreme Court over one (1) year ago, involves a Claimant who was awarded $822.40 in benefits and his attorney who received $164.54 in attorney’s fees.  The Claimant’s attorney spent over 100 hours of time seeking the Claimant’s benefit; however, due to the statutory fee schedule, the Claimant’s counsel’s minimum fee equated to approximately $1.53/hour. After much appellate work, the First DCA certified the due process issue to the Florida Supreme Court as to the constitutionality of the statutory fee schedule.

 If the statutory fee schedule is overturned, Claimants’ attorneys will again have the ability of collecting fees on an hourly rate. Many Claimants’ attorneys are therefore sitting patiently on cases with outstanding attorney fees in hopes of shifting from the fee schedule to an hourly rate.

 Cases which have resolved all substantive issues, but which have outstanding claims for attorney fees remain within the jurisdiction of the Judge of Compensation Claims indefinitely. An outstanding attorney fee tolls the statute of limitations. However, through the use of Rule 60Q-6.124(5), Florida Administrative Code (2014), any party may motion for the Court to compel the filing of a verified motion for attorney’s fees and costs as to any petition for benefits which has no pending claims other than entitlement to attorney’s fees and costs.

 Upon receipt of the motion, Rule 60Q-6.124(5) Florida Administrative Code, provides that the JCC  “shall require the filing of a verified fee petition.” This allows the Employer/Carrier to expedite outstanding issues on attorney fee entitlement prior to the potential change in statute.                                           

Florida JCCs have varied in how they rule on the motion to compel a verified fee petition. While most Florida Compensation Courts compel the Claimant’s attorney to file the motion within thirty (30) days of the order, or face dismissal, some Judges have extended the time period to as long as 120 days. One Judge has ruled to “table” the motion until the pending Florida Supreme Court case. Castellanos, has been released.

   Caitlin Beyl, Associate
   cbeyl@mcconnaughhay.com
  (904) 363-1950