Jacobson v. Se. Pers. Leasing, Inc.

• Decision Date: 05 June 2013
• Docket Number: No. 1D12–1103.,1D12–1103.
• Citation: 113 So.3d 1042
• Parties: Eugene JACOBSON, Appellant, v. SOUTHEAST PERSONNEL LEASING, INC./Packard Claim Administration, Inc., Appellees.
• Court: Florida District Court of Appeals

113 So.3d 1042

Eugene JACOBSON, Appellant,

v.SOUTHEAST PERSONNEL LEASING, INC./Packard Claim Administration, Inc., Appellees.

No. 1D12–1103.

District Court of Appeal of Florida, First District.

June 5, 2013.

Held Unconstitutional

West's F.S.A. §§ 440.105(3)(c), 440.34Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, and Paul M. Hawkes, Tallahassee, for Appellant.

Jeffrey E. Appel of the Appel Law Group, Lakeland, for Florida Workers' Advocates, Amicus Curiae in support of Appellant.

Vanessa J. Johnson of Sponsler, Bennett, Jacobs & Adams, P.A., Tampa, for Appellees.

VAN NORTWICK, J.

In this workers' compensation appeal, Claimant Eugene Jacobson appeals orders of the Judge of Compensation Claims (JCC) that grant, in part, the Employer/Carrier's (E/C's) motion to tax costs against him under section 440.34(3), Florida Statutes (2007), and deny Claimant's motion to approve a retainer agreement between him and Michael J. Winer, under which Winer would have provided legal services to Claimant limited to representation in the defense to oppose the E/C's motion to tax costs. Claimant challenges the constitutionality of sections 440.105(3)(c) and 440.34 insofar as these sections preclude him from contracting for legal services to defend against the E/C's motion to tax costs. We conclude to the extent that sections 440.34 and 440.105(3)(c), Florida Statutes, prohibit Claimant from retaining counsel to defend a motion to tax costs against him, those statutes infringe upon Claimant's constitutional rights under the First Amendment of the Constitution. Accordingly, as applied here, sections 440.34 and 440.105(3)(c) are unconstitutional. For the reasons set forth herein, we reverse the orders of the JCC, and remand for a new hearing on the motion to tax costs and motion to approve a retainer. On remand, the JCC has the authority to determine whether the proposed fee is reasonable.

Legal Background

Under section 440.105(3)(c), Florida Statutes (2007), an attorney may be guilty of a first-degree misdemeanor if the attorney receives payment for work relating to a workers' compensation case, unless the payment is approved by a JCC. The statute provides: “It is unlawful for any attorneyor other person ... to receive any fee or other consideration or any gratuity from a person on account of services rendered for a person in connection with any proceedings arising under this chapter, unless such fee, consideration, or gratuity is approved by a[JCC]....” Even though the plain language of this subsection does not limit its application only to attorneys representing claimants, it has long been interpreted as such in practice. See Altstatt v. Fla. Dep't of Agric., 1 So.3d 1285, 1286 (Fla. 1st DCA 2009) (“We find it unnecessary to decide whether the legislature intended section 440.105(3)(c) to apply to requests for payments made by attorneys representing employers, carriers and servicing agents, as well as to those made by attorneys representing claimants.”).

Section 440.34, Florida Statutes (2007), generally governs attorney's fees and costs in the workers' compensation context. Notably, section 440.34(1) limits a JCC's ability to approve a fee, as follows:

A fee, gratuity, or other consideration may not be paid for a claimant in connection with any proceedings arising under this chapter, unless approved as reasonable by the [JCC] or court having jurisdiction over such proceedings. Any attorney's fee approved by a[JCC] for benefits secured on behalf of a claimant must equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. The [JCC] shall not approve a compensation order, a joint stipulation for lump-sum settlement, a stipulation or agreement between a claimant and his or her attorney, or any other agreement related to benefits under this chapter that provides for an attorney's fee in excess of the amount permitted by this section. The [JCC] is not required to approve any retainer agreement between the claimant and his or her attorney. The retainer agreement as to fees and costs may not be for compensation in excess of the amount allowed under this section.

Section 440.34(2) begins, “[i]n awarding a claimant's attorney's fee, the judge of compensation claims shall consider only those benefits secured by the attorney.” In Kauffman v. Community Inclusions, Inc., 57 So.3d 919 (Fla. 1st DCA 2011), this court held there is no significant difference between fees “awarded” and fees “approved.” Further, section 440.34(3), which once permitted only prevailing claimants (not E/Cs) to tax costs against the nonprevailing party, was amended as of October 1, 2003, to permit “any party” that had prevailed in a workers' compensation matter to tax costs against the nonprevailing party. Thus, for the first time in the history of the Workers' Compensation Law, chapter 440 exposes claimants to liability for prevailing-party costs for routine claims. See§ 440.34(3), Fla. Stat. (2007); Ch. 03–412, § 26, at 3944, Laws of Fla. In the case under review, the E/C was the prevailing party. The only issues pending are the E/C's motion to tax costs against Claimant and the Claimant's motion seeking approval of payment to counsel to defend the E/C's motion.

Factual and Procedural Background

Claimant suffered a compensable work accident on September 4, 2007, injuring his neck and back. As a result, he underwent surgery, a cervical spine fusion. Doctors recommended another surgery to repair a herniated cervical disk. In 2010, the JCC denied both continued compensability of Claimant's low back condition and permanent total disability (PTD) benefits, finding Claimant (i) did not prove the compensable accident remained the major contributing cause of his current back condition or need for treatment and (ii) did not prove he cannot perform at least sedentary employment within fifty miles of his home.

Subsequently, the E/C filed a motion to tax costs against Claimant pursuant to section 440.34(3), alleging it had prevailed on every issue addressed in the 2010 order denying benefits. Shortly thereafter, Claimant's counsel withdrew on the grounds that “it is no longer economically viable for the undersigned to continue representation of the claimant in this case.” Claimant then retained counsel Winer. On Claimant's behalf, Winer filed a response to the E/C's motion to tax costs. Claimant and Winer also sought approval of an hourly retainer agreement, “for services and advice solely on issues that arise as a result of the Verified Motion to Tax Costs against Claimant” at the rate of $175 per hour. In his motion, Claimant argued that there is a genuine question as to whether a reduction in costs and representation at a cost hearing is a “benefit secured” to Claimant under chapter 440; that such a fee would not violate section 440.34(1), Florida Statutes, because it is being paid “by the claimant and not for the claimant”; and that denying approval would violate Claimant's constitutional rights.

At the hearing on the motion for approval, Claimant testified he had no legal training, background or experience; a representative of Claimant's former counsel's firm testified that the firm withdrew from representation because of the inability to recover its costs for the time it had put in, and he knew of no other attorneys who could afford such a situation; and Winer testified his requested fee was below market value and no attorney would take Claimant's case without an hourly retainer. The JCC denied the motion to approve the retainer agreement, ruling that chapter 440 prohibited her from approving an hourly fee under such circumstances. Winer then withdrew as Claimant's counsel of record.

Claimant appeared at the cost hearing pro se and, after the hearing, the JCC awarded the E/C $17,145.76 in costs. On appeal, Claimant argues (1) there is reversible error in the cost award; (2) the JCC erred in reading section 440.34 to preclude, as a matter of law, approval of the retainer agreement at issue; (3) the JCC's ruling violates Claimant's First Amendment rights to free speech, freedom of association, and the right to petition the government for redress and, as a result, infringes on Claimant's right to contract for legal counsel; and (4) the JCC's ruling violates both the separation of powers doctrine and various personal rights under the Florida Constitution, including the rights to due process, equal protection, privacy, and access to courts.

The Cost Award

Claimant alleges errors regarding three line items in the award of costs to the E/C. Whether we agree with Claimant is not dispositive of the issue, because our constitutional analysis set forth below requires a new hearing on the E/C's motion to tax costs. We note, however, that, on remand, the JCC should consider Marton v. Florida Hospital Ormond Beach, 98 So.3d 754, 754 (Fla. 1st DCA 2012), published only after the JCC entered her final order on the motion to tax costs.

Statutory Interpretation

As an alternative to his constitutional argument, Claimant suggests that this court read section 440.34(1) in such a way as to avoid reaching constitutional questions. Such a goal is indeed desirable. Murray v. Mariner Health, 994 So.2d 1051, 1057 (Fla.2008) (“ ‘[W]herever possible, statutes should be construed in such a manner so as to avoid an unconstitutional result.’ ”) (quoting State v. Jefferson, 758 So.2d 661, 664 (Fla.2000)). We find, however, that no reading of the applicable statutes will satisfy this goal. Claimant suggests that we read the first sentence of section 440.34(1)—specifically the phrase indicating a fee may not be paid “for a claimant”—as applying only to E/C-paid claimant-attorney fees. We reject...