Florida 1st DCA Approves Tilted Playing Field in Workers’ Compensation Cases

Not surprisingly, in Jennifer Kauffman v. Community Inclusions, Inc./Guarantee Insurance Company, filed on March 23, 2011, the Florida First District Court of Appeal issued an opinion finding constitutional a Florida law, Statute 440.34, that is designed to limit the ability of injured workers to obtain workers’ compensation benefits.

The Jennifer Kauffman appeal arose out of a lower court order awarding Ms. Kauffman’s attorney a fee in the amount of $648.41. The employer/carrier were ordered to pay the fee because they had lost at the trial level in their effort to deny workers’ compensation benefits to Ms. Kauffman, who was injured on the job. Her attorney spent 100.3 hours in the successful prosecution of the claim, meaning that he was awarded $6.48 per hour. (Although JCC E. Douglas Spangler, Jr. concluded in his appealed court order that the fee was patently unreasonable, he felt constrained by the statute to award the amount he did. In his opinion, based on evidence presented at the fee hearing, a reasonable fee would have been $25,075. Judge Spangler was also dismayed that the employer/carrier were able to pay their own defense attorney $14,720 in a losing effort.)

The 1st DCA’s ruling was not a surprise. In Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So. 2d 506 (Fla. 1st DCA 2006), the court reached the same conclusions with regard to the same constitutional isues. Accordingly, for the court to have reached any other conclusion in Kauffman, would have required a complete about-face on its part.

The Florida Supreme Court is not so constrained. It has yet to rule on the constitutional issues decided in Lundy and now in Kauffman. Injured workers must hope that the Supreme Court disagrees with the 1st DCA.

NOTE: To the great surprise of many, the Florida Supreme court refused to accept certiorari appeal of the Kauffman case. For now, this appears to be a dead issue.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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