VICTORIA MOORE, APPELLANT,
v.
HILLSBOROUGH COUNTY SCHOOL BOARD AND BROADSPIRE, APPELLEES
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Victoria Moore appealed a workers' compensation decision challenging the Judge of Compensation Claims' restriction of her attorney fee to the statutory schedule and denial of full costs. The appellate court affirmed the attorney fee award but reversed and remanded the denial of witness costs for expert testimony that was admitted into evidence, finding error as a matter of law.
The court affirmed the attorney fee award under the statutory schedule as supported by competent, substantial evidence. The court reversed the denial of witness costs for the six experts, finding that if testimony was used in any way to support an award of benefits, witness fees must be taxed to the employer/carrier. The court affirmed the denial of legal assistant costs because the claimant failed to establish that the time spent was nonclerical rather than clerical work.
[1] A Judge of Compensation Claims' analysis of factors justifying a departure from the statutory attorney fee schedule is reviewed for abuse of discretion and will not be di…
[2] Witness fees should be taxed to the employer/carrier if the testimony was used in any way to support an award of benefits, even if the judge did not specifically rely on…
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Join FLexlaw to unlock all legal intelligence“If the testimony was used in any way to support an award of benefits, the witness fees should be taxed to the E/C.”
Establishes the legal standard that expert witness costs must be awarded if the testimony was used in any way to support the benefits award, not merely if it was the primary basis for the award.
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Join FLexlaw to unlock all legal intelligenceVictoria Moore was a claimant in a workers' compensation case against Hillsborough County School Board and Broadspire. The JCC awarded attorney fees b…
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PER CURIAM.
In this workers’ compensation case, claimant, Victoria Moore, argues that the Judge of Compensation Claims (JCC) incorrectly (1) restricted her attorney fee to the statutory schedule and (2) denied her a full award of costs.
As to the first issue, claimant argues the JCC’s award of a fee based upon the fee schedule was manifestly unfair. Our standard of review when deciding whether the factors listed in section 440.34(1), Florida Statutes (1994), were sufficient to justify a departure from the statutory fee is abuse of discretion. See Alderman v. Fla. Plastering, 805 So. 2d 1097, 1100 (Fla. 1st DCA 2002). Here, the JCC’s analysis of those factors is supported by competent, substantial evidence. Those findings will not be disturbed on appeal. See Frederick v. United Airlines, 688 So. 2d 412, 413 (Fla. 1st DCA 1997). The award of the attorney fee is affirmed.
Claimant next argues that the denial of costs related to (1) testimony admitted into evidence but not relied upon to award benefits and (2) costs associated with legal assistants was error. A denial of costs is subject to review under an abuse of discretion standard. See Morris v. Dollar Tree Store, 869 So. 2d 704, 707 (Fla. 1st DCA 2004).
The JCC denied costs related to the opinions of Barclay, Baker, Martinez, Gonzalez, Finley, and Hoffman because she did not rely upon these individuals in awarding benefits. In this regard the JCC erred as a matter of law. If the testimony was used in any way to support an award of benefits, the witness fees should be taxed to the E/C. See Raska v. Glasgow Contracting Co., 588 So. 2d 307, 308 (Fla. 1st DCA 1991); Christopher v. Dobbs Houses, Inc., 411 So. 2d 267, 267-268 (Fla. 1st DCA 1982); Stich v. Indep. Life & Accident Ins. Co., 139 So. 2d 398, 400 (Fla.1962).
Finally, claimant challenges the denial of costs associated with legal assistants. Claimant had the burden to establish that time spent by these legal assistants was nonclerical. She failed to do so. The denial of these costs was not an abuse of discretion. See Dayco Prods, v. McLane, 690 So. 2d 654, 655 (Fla. 1st DCA 1997).
The order is affirmed in all matters with the exception of the denial of costs related to the opinion testimony of Barclay, Baker, Martinez, Gonzalez, Finley, and Hoffman. On remand, the JCC shall determine whether each opinion was relevant to an issue.
AFFIRMED in part, REVERSED in part, and REMANDED, with directions.
BARFIELD, ALLEN, and THOMAS, JJ., concur.
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Benicia Demedrano v. Labor Finders OF the Treasure Coast & Amisure Ins. Co., 8 So. 3d 498 (Fla. 1st DCA 2009)…g a carrier paid fee, to affirm the JCC’s "denial of costs associated with legal assistants,” because the claimant’s attorney failed "to establish that time spent by these legal assistants was nonclerical.” See Moore v. Hillsborough County Sch. Bd., 987 So. 2d 1288, 1289 (Fla. 1st DCA 2008).…
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Hillsborough Cnty. Sheriff's Off. & N. Am. Risk Servs. v. Roseanne Hilsman, 23 So. 3d 743 (Fla. 1st DCA 2009)…vidence upon which a JCC may rely). The JCC also correctly rejected Claimant’s argument regarding the costs associated with Dr. Inga because the doctor’s testimony was taken in support of the E/C’s defense. Cf. Moore v. Hillsborough County Sch. Bd., 987 So. 2d 1288, 1289 (Fla. 1st DCA 2008) (holding testimony used in any way to support an award of benefits, whether or not expressly relied upon by a JCC, is a taxable cost). Moreover, the record supports the JCC’s finding that Claimant conceded to numerous charg…
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Hernandez v. Manatee Cnty. Government/Commercial Risk Mgmt., Inc., 50 So. 3d 57 (Fla. 1st DCA 2010)…ular point in time. Here, E/C’s entitlement to the costs at issue did not arise until the JCC ruled on the 2008 PFB. Accordingly, res judicata does not bar the award of costs for that proceeding. See generally Moore v. Hillsborough County Sch. Bd., 987 So. 2d 1288, 1289 (Fla. 1st DCA 2008) (holding witness fees taxable against nonprevailing E/C if testimony was used in any way to support award); see also Boynton Landscape v. Dickinson, 752 So. 2d 1236, 1237 (Fla. 1st DCA 2000) (holding mature claims not litig…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Morris v. Dollar Tree Store & Specialty Risk Servs., 869 So. 2d 704 (Fla. 1st DCA 2004)
- Frederick v. United Airlines & Alexsis, Inc., 688 So. 2d 412 (Fla. 1st DCA 1997)
- Alderman v. Fla. Plastering & Associated Indus. Ins. Co., 805 So. 2d 1097 (Fla. 1st DCA 2002)
- Sealy v. Fla. Parole Comm'n, 690 So. 2d 654 (Fla. 1st DCA 1997)
- Ruth M. Stich (Rogers) v. Indep. Life & Accident Ins. Co., 139 So. 2d 398 (Fla. 1962)
- Raska v. Glasgow Contracting Co. & Feisco, 588 So. 2d 307 (Fla. 1st DCA 1991)
- Tilus Christopher v. Dobbs Houses, Inc., 411 So. 2d 267 (Fla. 1st DCA 1982)