LARRY MCDERMOTT, APPELLANT,
v.
UNITED PARCEL SERVICE/LIBERTY MUTUAL, APPELLEES
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In this workers' compensation appeal, the Florida First District Court of Appeal affirmed the trial judge's denial of certain attorney's fees but reversed the determination that the customary hourly rate for workers' compensation attorneys in the locality was $200, finding that the judge improperly relied on unsworn argument rather than evidence.
The court affirmed the denial of employer/carrier-paid attorney's fees related to the morphine pump and the refusal to include paralegal time, but reversed the finding that $200 was the customary hourly rate. The court held that a JCC must rely on properly submitted evidence, not unsworn argument or the judge's subjective beliefs, when determining the customary fee under Florida Statutes § 440.34(1)(b).
[1] A Judge of Compensation Claims may reject testimony regarding attorney's fees based on the attorney's personal experience in other jurisdictions or venues.
[2] A Judge of Compensation Claims must determine the customary hourly rate for legal services based on properly submitted evidence, not subjective belief or personal experie…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is well-settled that a JCC may reject in whole or in part even uncontroverted testimony the JCC disbelieves.”
Establishes the standard for a JCC's authority to reject testimony, but only when properly relying on evidentiary standards
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Join FLexlaw to unlock all legal intelligenceClaimant's attorney sought an hourly fee of $300 to $400 based on testimony regarding his experience in other jurisdictions and venues. The employer/c…
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In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred on three counts. We affirm without comment the points challenging the JCC’s denial of an employer/camer-paid attorney’s fee as it relates to the morphine pump and the JCC’s refusal to include paralegal time when determining the reasonable time spent related to the successful prosecution of a claim for payment of disputed medical bills. We reverse, however, the JCC’s finding that the customary hourly rate in his district was $200.
Claimant’s attorney offered evidence in support of his contention that he should be awarded an hourly fee of $300 to $400. The JCC could properly reject this evidence as he found the testimony was based on Claimant’s attorney’s personal experience in jurisdictions other than workers’ compensation and in other venues. See Mitchell v. XO Commc’ns, 966 So.2d 489, 490 (Fla. 1st DCA 2007) (“It is well-settled that a JCC may reject in whole or in part even uncontroverted testimony the JCC disbelieves.” (citing Bass v. Gen. Motors Corp., 637 So.2d 304, 306 (Fla. 1st DCA 1994))). The JCC erred, however, in finding that the employer/carrier’s attorney testified that the customary hourly rate in the locality for similar services was $200. The employer/carrier’s attorney did not testify; he only offered argument to that effect.
Section 440.34(l)(b), Florida Statutes (Supp.1996), requires the JCC to determine, when awarding a fee based on an hourly rate, “[t]he fee customarily charged in the locality for similar legal services.” The JCC must rely on evidence properly submitted in arriving at the customary fee, not his “subjective belief and personal experience.” Sanchez v. Woerner Mgmt., Inc., 867 So.2d 1173, 1174 (Fla. 1st DCA 2004). “[UJnsworn responses and arguments of counsel are not evidence upon which a [JCC] may rely when determining the amount of a reasonable fee.” Hale v. Shear Express, Inc., 946 So.2d 94, 96 (Fla. 1st DCA 2006) (relying on Smyth v. K-Mart Corp., 905 So.2d 921, 921 (Fla. 1st DCA 2005)); Sanchez, 867 So.2d at *9351175. Accordingly, the JCC’s finding that $200 was the customary hourly rate is REVERSED, and this matter is REMANDED for further proceedings consistent with this opinion.
LEWIS, CLARK, and ROWE, JJ„ concur.
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Authorities Cited
- Mitchell v. XO Commc'ns & Wausau/Liberty Mut. Ins. Co. & XO Commc'ns & Travelers Ins. Co., 966 So. 2d 489 (Fla. 1st DCA 2007)
- Sanchez v. Woerner Mgmt., 867 So. 2d 1173 (Fla. 1st DCA 2004)
- Hale v. Shear Express, Inc., 946 So. 2d 94 (Fla. 1st DCA 2006)
- Bass v. Gen. Motors Corp., 637 So. 2d 304 (Fla. 1st DCA 1994)
- Smyth v. K-Mart Corp., 905 So. 2d 921 (Fla. 1st DCA 2005)