IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
LEONARDO ERNESTO NOT FINAL UNTIL TIME EXPIRES TO
GOMEZ, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D17-1173
v.
FRANK CRUM, INC., and CORRECTED PAGES: pg 3
CORRECTION IS UNDERLINED IN
BROADSPIRE, RED
MAILED: November 6, 2017
Appellees. BY: KMS
_____________________________/
Opinion filed November 6, 2017.
An appeal from an order of the Judge of Compensation Claims.
John J. Lazzara, Judge.
Date of Accident: June 29, 2012.
Kevin R. Gallagher of Gallagher Law Group, P.A., Fort Lauderdale, for Appellant.
William H. Rogner and Paul L. Luger, Winter Park, for Appellees.
PER CURIAM.
In this workers’ compensation appeal, Claimant, through his counsel,
challenges the Judge of Compensation Claims’ (JCC’s) order rejecting a jointly
agreed upon Employer/Carrier-paid attorney’s fee, awarding instead a fee based on
the statutory fee schedule as set out in subsection 440.34(1), Florida Statutes (2012),
and requiring the excess amount be remitted to Claimant personally. We reverse
and remand for proceedings consistent with this opinion.
We review for competent, substantial evidence the issue of the reasonableness
of an attorney’s fee. See Sanchez v. Woerner Mgmt., Inc., 867 So. 2d 1173 (Fla. 1st
DCA 2004. As we recently explained in Banegas v. ACR Environmental, Inc., No.
1D17-1251 (Fla. 1st DCA Nov. 6, 2017), “[n]either argument of counsel nor ‘the
JCC’s reductions and deletions . . . based solely on the JCC’s own subjective and
personal experience of what he deemed reasonable’ are sufficient to rebut a
claimant’s counsel’s sworn affidavit. See Minerd v. Walgreens, 962 So. 2d 955, 957
(Fla. 1st DCA 2007).” Because the record before us contains no evidence rebutting
Claimant’s counsel’s sworn affidavit or the representations of the
Employer/Carrier’s counsel, the JCC erred in deleting the time entries contained
within the affidavit.
As for the redirection of the monies in excess of the statutory fee schedule to
Claimant, a JCC is “without authority to redirect the attorney’s fee from counsel to
claimant as an exercise of plenary equitable jurisdiction.” Luces v. Red Ventures,
140 So. 3d 999, 1000 (Fla. 1st DCA 2014) (explaining that “chapter 440 limits the
authority of JCCs and does not authorize them to reform the agreements of the
parties on their own motion”). Thus, the JCC erred in doing so.
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Accordingly, we REVERSE the portion of the order rejecting the agreed upon
Employer/Carrier-paid attorney’s fee as well as the portion of the order reforming
the stipulation, and REMAND for further proceedings consistent with this opinion.
LEWIS, MAKAR, and OSTERHAUS, JJ., CONCUR.
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