CARMEN PINEDA, APPELLANT,
v.
RIO PINAR HEALTH CARE CENTER AND ESIS SOUTHEAST WC CLAIMS, APPELLEES
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In this workers' compensation appeal, the court affirmed a Judge of Compensation Claims' award of a $25,000 employer/carrier-paid attorney's fee, rejecting the claimant's argument that the fee must be calculated using a statutory formula. The court held that specific provisions in Florida Statutes § 440.34(3) governing employer/carrier-paid fees control over the general formula in subsection (1), and that reasonable fees under subsection (3) are determined using the Lee Engineering factors from the Rules Regulating the Florida Bar.
When a claimant is entitled to recover attorney's fees from a carrier or employer under section 440.34(3), the specific provisions in subsection (3) control over the general formula in subsection (1). Reasonable attorney's fees under subsection (3) are determined using the Lee Engineering factors derived from rule 4-1.5(b) of the Rules Regulating the Florida Bar, not the subsection (1) formula.
[1] When a claimant is entitled to recover attorney fees from a carrier or employer under specific enumerated circumstances in section 440.34(3), Florida Statutes, the claima…
[2] In cases where the workers' compensation statute does not define "reasonable attorney's fee" for employer/carrier-paid fees, such fees are to be determined using the fact…
Previewing 2 of 3 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“when a claimant is entitled to recover attorney fees from a carrier or employer as provided by section 440.34(3)(a), (b), (c), or (d), the claimant is entitled to recover "a reasonable attorney's fee."”
Establishes that subsection (3) entitles claimants to reasonable fees without specifying a calculation method
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Join FLexlaw to unlock all legal intelligenceA claimant sought recovery of attorney's fees from an employer/carrier under workers' compensation law. The Judge of Compensation Claims awarded the c…
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In this workers’ compensation appeal, Claimant challenges the Judge of Compensation Claims’ (JCC’s) award of an employer/carrier-paid attorney’s fee without reference to the formula mandate set out in section 440.34(1), Florida Statutes (2007). Because the JCC correctly applied the Florida Supreme Court’s holding in Murray v. Mariner Health, 994 So.2d 1051 (Fla.2008), we affirm.
The relevant statutory provision was in effect between October 1, 2003, and June *26730, 2009. See Ch. 03-412, § 26, at 3943, Laws of Fla.; Ch. 09-94, § 1, at 1351, Laws of Fla. In Murray, the supreme court resolved the ambiguity between section 440.34(1) and section 440.34(3). See Murray, 994 So.2d at 1061-62. Relying on rules of statutory construction, the Murray court determined that, when assessing a reasonable attorney’s fee paid pursuant to subsection (3), the specific provisions pertaining to employer/carrier-paid attorney’s fees in the enumerated circumstances set forth in subsection (3) controlled over subsection (1), which “covers attorney fees generally but is silent as to the attorney fees to which a claimant is entitled from an employer/carrier under the circumstances set forth in subsection (3).” Id. at 1061. Accordingly, the supreme court held:
(B)ased upon the plain language of the statute, that when a claimant is entitled to recover attorney fees from a carrier or employer as provided by section 440.34(3)(a), (b), (c), or (d), the claimant is entitled to recover “a reasonable attorney’s fee.” See § 440.34(3), Fla. Stat. (2003). Section 440.34(3), does not define “reasonable attorney’s fee,” and an ambiguity results when subsection (1) and subsection (3) are read together. Accordingly, we have determined that reasonable attorney fees for claimants, when not otherwise defined in the workers’ compensation statute, are to be determined using the factors of rule 4-1.5(b) of the Rules Regulating the Florida Bar. See Lee Eng’g & Constr. Co. v. Fellows, 209 So.2d 454, 458 (Fla.1968) (applying Canon 12 of the Canons of Professional Ethics, the predecessor to rule 4-1.5(b)).
Id. at 1053. Thus, here, because the JCC relied on the Lee Engineering factors in arriving at a reasonable employer/carrier-paid attorney’s fee, the JCC did not err in awarding Claimant’s attorney a $25,000 attorney’s fee.
AFFIRMED.
DAVIS, VAN NORTWICK, and PADOVANO, JJ., concur.
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- Gray v. Attorney Gen., State of Fla. and/or State Attorney, Cir. Court, Volusia Cnty., Fla., 209 So. 2d 454 (Fla. 1968)
- Murray v. Mariner Health and ACE USA, 994 So. 2d 1051 (Fla. 2008)