DISTRICT COURT OF APPEALFIRST APPELLATE DISTRICTTALLAHASSEE, FLORIDA

EUGENE JACOBSON, Docket No.: 1D12-1103

Appellant, Lower TribunalCase No.: 08-028823DBB

vs.D/Accident: 09/04/2007

SOUTH EAST PERSONNEL LEASING, INC.,and PACKARD CLAIMS ADMINISTRATION, INC.

Appellees.

ANSWER BRIEF

Vanessa J. Johnson, Esquirevj ohnson@sponslerbennett . corn

Florida Bar No. 593311Sponsler, Bennett, Jacobs & Adams, P.A.Post Office Box 3300Tampa, FL 33601Telephone: 813-272-1400Facsimile: 813-272-1401Attorneys for Employer/Carrier/Appellees

This is an appeal from an Order on Claimant's Amended Motion forApproval of Hourly Retainer Agreement and Payment of $525 toClaimant's Counsel for Services Rendered to Date dated January24, 2012 and from a Final Order on Employer/Carrier's VerifiedMotion to Tax Costs Against Eugene Jacobson dated January 31,2012, both from the State of Florida, Division of AdministrativeHearings, Office of the JCC, Diane B. Beck, Sarasota District.

E-Copy Received Oct 25, 2012 4:55 PM

TABLE OF CONTENTS

TABLE OF CONTENTS ....................

TABLE OF AUTHORITIES

PRELIMINARY STATEMENT ..................

SUMMARY OF THE ARGUMENT .................

ARGUMENT

POINT 1 .......................THE '7CC DID NOT ABUSE HER DISCRETION BY AWARDINGCOSTS AGAINST APPELLANT AS THE APPLICATION OFSECTION 440.34(3), FLA. STAT. (2007) AND THEUNIFORM GUIDELINES FOR TAXATION OF COSTS IN THISMATTER WAS PROPER.

POINT II:

THE '7CC PROPERLY DENIED APPELLANT'S MOTION FORAPPROVAL OF RETAINER AGREEMENT AND PAYMENT OFSERVICES RENDERED TO DATE AS SECTION 440.34, FLA.STAT. (2007) DOES NOT PERMIT THE ATTORNEY'S FEEENDORSED BY APPELLANT.

POINT III .....................SECTIONS 440.105 AND 440.34, FLA. STAT. (2007) ARECONSTITUTIONAL AND DO NOT VIOLATE THE FIRSTAMENDMENT RIGHTS TO FREE SPEECH, FREEDOM OFASSOCIATION OR THE RIGHT TO PETITION FOR REDRESS,AS THERE IS NO FUNDAMENTAL RIGHT TO COUNSEL INTHIS MATTER AND THESE SECTIONS PASS THE RATIONALBASIS TEST.

ii

PAGE

11

iv

1

2

4

4

15

TABLE OF CONTENTS(Continued)

PAGE

POINT IV: 24

THE 2003 CHANGES TO THE WORKERS' COMPENSATION LAWWHICH ALLOW THE TAXATION OF COSTS AGAINST ANINJURED WORKER WHO DOES NOT PREVAIL ON HIS CLAIMDO NOT VIOLATE FLORIDA CONSTITUTION ARTICLE I,

SECTIONS 2, 21 & 23.

CONCLUSION ....................... 35

CERTIFICATE OF SERVICE ................. 36

CERTIFICATE OF TYPE FACE COMPLIANCE ........... 37

iii

TABLE OF AUTHORITIES

CASES: PAGE

Acton II v. Fort Lauderdale Hospital,440 So. 2d 1282 (Fla. 1983) ............. 32

Bend v. Shamrock Services,59 So. 3d 153 (Fla. 1st DCA 2011) .......... 10

Bradley v. Hurricane Restaurant,670 So. 2d 162 (Fla. 1st DCA 1996) .......... 21,22

Brascom v. Hillsborough County Sheriff's Office,65 So. 3d 619 (Fla. 1st DCA 2011) .......... 2,7,35

Broward v. Jacksonville Med. Ctr.,690 So.2d 589 (Fla. 1997) .............. 22

Carmack v. State, .Dep't of Agric.,31 So. 3d 798 (Fla. 1st DCA 2009) .......... 16

City of El Paso v. Simmons,379 U.S. 497 (1965) ................. 17

Crist v. Fla. Ass'n of Criminal Def. Lawyers, Inc.,978 So. 2d 134 (Fla. 2008) ............. 15

Crutcher v. Sch. Bd. Of Broward County,834 So. 2d 288 (Fla. 1st DCA 2002) ......... 11

Eccles v. Nelson,919 So. 2d 658 (Fla. 5th DCA 2006) .......... 19

Fasching v. Backes,452 N.W. 2d 324 (N.D. 1990) ............. 26

Fla. Dep't of Envtl. Prot.v. ContractPoint Fla. Parks, LLC,986 So. 2d 1260 (Fla. 2008) ............. 12

Fla. Dep't of State, Div. of Elections v. Martin,916 So. 2d 763 (Fla. 2005) .............. 12

Frederick v. Monroe County School Board,WL4746524 (decided October 5, 2012) .......... 29

iv

TABLE OF AUTHORITIES(Continued)

CASES:

Gideon v. Wainwright,

PAGE

372 U.S. 335 (1963) ................. 24,25,28

Golden v. McCarty,337 So. 2d 388 (Fla. 1976) .............. 17

HDV Construction Systems, Inc., v. Aragon,66 So. 3d 331 (Fla. 1st DCA 2011) .......... 22

Hensley v. Punta Gorda,686 So. 2d 724 (F1a. 1st DCA 1997) .......... 22

Humana of Florida, Inc. v. McKaughan,652 So. 2d 852 (Fla. 2nd DCA 1995) .......... 31

James W. Windham Builders, Inc., v. Overloop,951 So. 2d 1170 (Fla. 1998) .............. 11

Johns v. May,402 So. 2d 1166 (Fla. 1981) ............. 17Kaufman v. Community Inclusions, Inc.,57 So. 3d 919 (F1a. 1st DCA 2011) .......... 15,33

Khoury v. Carvel Homes South, Inc.,403 So 2d 1043 (Fla. 1st DCA 1981 ........... 15,30

Knight and Wall Co. v. Bryant,178 So. 2d 5 (Fla. 1965) ............... 17

Lucas v. Englewood Community Hospital,963 So. 2d 894 (Fla. 1st DCA 2007 ........... 21

Lundy v. Four Seasons Ocean Grand Palm Beach,932 So. 2d 506 (Fla. 1st DCA 2006) .......... 15,23,33

Maas v. Olive,992 So. 2d 196 (Fla. 2008) .............. 27

Makemson v. Martin County,491 So. 2d 1109 (Fla. 1986) ............. 24,27,28

V

TABLE OF AUTHORITIES(Continued)

CASES: PAGE

Martinez v. Scanlan,582 So. 2d 1167 (Fla. 1991) ............. 32,33

Matrix Employee Leasing, Inc. V. Hadley,78 So. 3d 621 (Fla. 1st DCA 2011) ........... 11

McDermott v. Miami-Dade County,753 So. 2d 729 (Fla. let DCA 2000) .......... 26

McArthur v. Mental Health Care, Inc.,35 So. 3d 105 (Fla. 1st DCA 2010) ........... 10

McElrath v. Burley,707 So. 2d 836 (Fla. 1st DCA 1998) .......... 23

McFadden v. Hardrives Construction, Inc.,573 So. 2d 1057 (Fla. 1st DCA 1991) .......... 10

McLean v, Mundy,81 So. 2d 501 (Fla. 1955) ............... 32

Medina v. Gulf Coast Linen Services,825 So. 2d 1018 (Fla. 1st DCA 2002) ........... 15,17,33

Mobile Elevator Co. v. White,39 So. 2d 799 (Fla. 1949) ............... 23

Morris v. Dollar Tree Store,869 So. 2d 704 (Fla. 1st DCA 2004) ........... 4

Mullins v. Department of Law Enforcement,942 So. 2d 998 (Fla. 5th DCA 2006) ........... 25

Remeta v. State, 559 So. 2d 1132 (Fla. 1990) ...... 24

Samaha v. State,389 S9. 2d 639 (Fla. 1980) ............... 16,30,31

Sasso v. Ram Property Management,431 So. 2d 204 (Fla. 1st DCA 1983) ........... 21

vi

TABLE OF AUTHORITIES(Continued)

CASES: PAGE

S..B. v. Department of Children and Families,851 So. 2d 689 (Fla. 2003) ............... 25

Sentry Ins. Co. v. Hamlin,69 So. 2d 3d 1065 (Fla. 1st DCA 2011) ......... 4,9

Srygley v. Capital Plaza, Inc.,82 So. 3d 1211 (Fla. 1st DCA 2012) ........... 16

Staffmark v. Merrell,43 So. 3d 792 (Fla. 1st DCA 2010) ........... 20

State v. Kinner,398 So. 2d 1360 (Fla. 1981) ............... 13,17

State v. Powell,497 So. 2d 1188 (Fla. 1986) .............. 17

Strickland v. Washington,466 U.S. 668 (1984) .................. 26

Styles v. Broward County School Board,831 So. 2d 212 (Fla. 1st DCA 2002) ........... 22

Sullivan v. Mayo,121 So. 2d 424 (Fla. 1960) ............... 31

The Amendments to Uniform Guidelinesfor Taxation of Costs,915 So. 2d 612 (Fla. 2005) ............... 7

Thompson v. W.T. Edwards Tuberculosis Hosp.,164 So. 2d 13 (Fla. 1964) ................ 31

Todd v. State,643 So. 3d 625 (Fla. 1st DCA 1994) ........... 17

United Auto. Ins. Co. v. Rodriguez,808 So. 2d 82 (Fla. 2010) ................ 17

Warren v. State Farm Mut. Auto Ins. Co.899 So. 2d 1090 (Fla. 2005) ............... 16

vii

TABLE OF AUTHORITIES(Continued)

CASES: PAGE

Wolf v. Progressive American Insurance Company,34 So. 3d 81 (F1a. 1st DCA 2010) ........... 16

Yeiser v. Dysart,267 U.S. 540 (1925) ................. 18

Section 440.13(10), Fla. Stat ............ 8

Section 440.15, Fla. Stat ............ 16Section 440.20(11) (c), Fla. Stat ............ 21Section 440.34, Fla. Stat ............ 2, 3,

9,10,11,12,13,14, 15, 18,

20, 21, 23,

24,29,30,32,34,35

Section 440.34(1), Fla. Stat ........... 11,15,18,30

Section 440.34(2), Fla. Stat .......... 12Section 440.34(3), Fla. Stat .......... 2,3,4,

6, 9, 23,

29, 35Section 440.34(5), Fla. Stat .......... 30Section 440.34(7), Fla. Stat .......... 11Section 440.105 Fla. Stat .......... 15, 18,

21, 23,29, 32, 34

Section 440.105 (3) (c) , Fla. Stat .......... 20Section 440.105(3), Fla. Stat .......... 30

FLORIDA CONSTITUTIONAL AMENDMENTS:

Article I, § 2, Fla. Const .............. 24Article I, § 21, Fla. Const .............. 24Article I, § 23, Fla. Const .............. 24

UNITED STATES CONSTITUTIONAL AMENDMENTS:

U.S. Const. Amend. VI ................. 24

viii

ii:::

PRELIMINARY STATEMENT

EUGENE JACOBSON shall be referenced as the "Claimant" and

the "Appellant." SOUTH EAST PERSONNEL LEASING, INC., and PACKARD

CLAIMS ADMINISTRATION, INC., shall be referenced herein as the

"Employer/Carrier" and "Appellees." The Judge of Compensation

Claims shall be referenced as "JCC." References to the record on

appeal shall be made with the volume listed first (abbreviated,

"Vol.") followed by the volume number in Roman numerals, a comma,

and the specific page number(s).

The Appellant's initial brief shall be referred to herein as

the "Initial Brief", followed by the applicable page number.

1

StTh1MRY OF THE ARGUMENT

POINT I

Appellant failed to demonstrate that the JCC erred when she

awarded costs taxed against Appellant pursuant to Section

440.34(3), Fla. Stat. (2007). The JCC properly awarded costs

against Appellant pursuant to Brascom v. Hillsborough County

Sheriff's Office, 65 So. 3d 619 (Fla. 1st DCA 2011) and The

Arnendrrzents to Uniform Guidelines for Taxation of Costs, 915 So.

2d 612 (Fla. 2005) . Appellant's challenges should be denied and

the JCC's Order affirmed.

POINT II

The JCC properly denied approval of Appellant's Retainer Fee

Agreement and did not err in her interpretation of Section 440.34

in such denial. Section 440.34, Fla. Stat. (2007) provides

attorney's fees payable to a claimant's attorney only when

benefits have been secured. A JCC does not have authority to

approve an Hourly Retainer Agreement that violates Section

440.34, Fla. Stat. (2007) . As such, the JCC's Order denying

Appellant's Request for Approval of an Hourly Retainer Agreement

and for Payment of Services to date was proper and should be

affirmed.

2

POINT III

This Honorable Court has addressed constitutional challenges

to Sections of the Florida Workers' Compensation Statutes,

specifically Section 440.34, Fla. Stat. and has repeatedly held

the same constitutional. Appellant alleges violations to his

freedom of speech, right to assemble and the right to petition

for redress but fails to provide the basis necessary for such

attacks. Under rational basis review, Appellant has not

satisfied his burden of showing that the State's interest in

enacting the Workers' Compensation Statutes is without any

rational basis. Appellant's arguments fail and should be

rejected.

POINT IV

Section 440.34(3), Fla. Stat. (2007) provides that an

employer/carrier may seek to tax costs against a claimant who has

not prevailed in a final hearing or has withdrawn claims. A

claimant in the Workers' Compensation system does not have a

fundamental right to an attorney. As such, a claimant does not

have a statutory or constitutional right to an attorney at a cost

hearing.

3

POINT I

THE JCC DID NOT ABUSE HER DISCRETION BYAWARDING COSTS AGAINST APPELLANT AS THEAPPLICATION OF SECTION 440.34(3), FLA. STAT.(2007) AND THE UNIFORM GUIDELINES FORTAXATION OF COSTS IN THIS MATTER WAS PROPER.

A JCC's rulings relative to specific cost items are subject

to an abuse of discretion standard of review on appeal. Morris

v. Dollar Tree Store, 869 So. 2d 704, 707 (Fla. 1st DCA 2004)

Additionally, when an issue involves a JCC's interpretation and

application of a statute a de novo standard of review is applied.

Sentry Ins. Co. v. Hamlin, 69 So. 2d 3d 1065, 1069 (Fla. 1st DCA

2011)

Appellant was initially represented by Attorney Frank Clark

who petitioned for medical and indemnity benefits relative to a

date of accident of September 24, 2007. (Vol. I, p. 5) . A final

hearing was held on November 1, 2010, and the JCC entered an

Order on November 30, 2010, denying all benefits requested.

(Vol. I, p. 27),

Subsequently, Appellees filed a Verified Motion to Tax Costs

against Appellant pursuant to Section 440.34(3), Fla. Stat.

(2007) on October 10, 2011. (Vol. I, pgs. 29-63) . On October

28, 2011, Attorney Frank Clark withdrew as attorney of record

because it was no longer economically viable for him to continue

such representation. (Vol. I, pgs. 64-65)

On December 22, 2011, Attorney Michael Winer filed a

Response to the Verified Motion to Tax Costs on behalf of

Appellant. (Vol. I, pgs. 102-113)

On January 18, 2012, a hearing was held on Attorney Winer's

Motion for Approval of Retainer Agreement and Attorney's Fees for

Services Rendered to date and the JCC denied the same on January

24, 2012. (Vol. I, pgs. 133-137) . Attorney Winer withdrew from

representation of the Appellant on January 30, 2012, and again on

January 31, 2012. (Vol. I, pgs. 138-142).

On January 31, 2012, Appellant presented to the hearing on

the Verified Motion to Tax Costs. (Vol. p. 149) . An Order was

entered by the JCC on January 31, 2012, awarding costs against

Appellant. (Vol. I, pgs. 149-155) . Just two days later, on

February 2, 2012, Attorney Winer filed a Notice of Appearance on

behalf of Appellant solely for appellate purposes. (Vol. I, pgs.

156-157)

Appellant argues that he was unsuccessful at the cost

hearing because he was unrepresented which was due to the JCC's

failure to approve the retainer agreement. Appellant ignores the

fact that he was equally unsuccessful at the final merits hearing

while represented by counsel where he requested permanent total

disability benefits, continued compensability of his low back,

continued evaluation and treatment for his low back and

penalties, interest, costs, and attorney's fees. Additionally,

at the final merits hearing on November 1, 2012, while

5

H

represented by counsel, Appellant withdrew requests for payment

of temporary total disability benefits, temporary partial

disability benefits, authorization and payment of a lumbar MRI

and authorization and payment of cervical spine surgery per Dr.

Hershkowitz (Vol. I, p. 150), providing the basis for Appellees

to prevail on these issues as well.

At the start of the cost hearing, Appellant was asked if he

wished a continuance to obtain representation "but he declined on

the basis that he has no money to hire counsel .

" (Vol. I,

p. 149) (emphasis added). As such, the basis of this entire

appeal is disingenuous. There is no evidence in the record

establishing that the Appellant could not obtain an attorney_to

represent him at the cost hearing, only that he attempted to

retain Attorney Winer who would not represent him if Attorney

Winer could not be receive an hourly fee payable by the Appellant

which is a clear violation of the Florida Workers' Compensation

Statutes.

The JCC did not abuse her discretion as the application and

interpretation of Section 440.34(3), Fla. Stat. (2007) and the

Uniform Guidelines for Taxation of Costs were proper. Appellant

alleges that the charges of $690.00 for doctor conferences were

not reasonable or necessary and that the JCC abused her

discretion by granting this cost against Appellant. However,

Appellant's argument is without support.

Appellee's Verified Motion to Tax Costs established that

$200.00 was paid to Dr. Lance Krepl±ck for his attendance at a

telephone conference held on March 15, 2010. (Vol. I, p. 44)

$245.00 was paid to Dr. John Cassidy, Appellee's IME, for his

attendance at a conference prior to his deposition on August 30,

2010 (Vol. I, p. 45); and $245.00 was paid to Dr. Cassidy for a

second conference that occurred on October 1, 2010, which was

prior to a second deposition. (Vol. I, p. 45). The JCC found

that the $200.00 per hour charge for depositions does not apply

to conferences and such conferences may be taxed pursuant to

Brascorn V. Hilisborough County Sheriff's Office, 65 So. 3d 619

(Fla. 1st DCA 2011). In .Brascom, this Court held that the JCC

did not abuse her discretion in awarding the cost of a pre-

deposition conference between the employer/carrier's counsel and

their IME. It is within a JCC's discretion to award costs such

as conferences with an employer/carrier's IME and this Court

found "no basis to determine that the JCC abused her discretion

in doing so." Id. at 620. The Amendments to Uniform Guidelines

for Taxation of Costs, 915 So. 2d 612 (Fla. 2005) detail the type

of litigation costs that should not be taxed. A conference with

an authorized treating physician is not included on this list.

Id. at 617. Additionally, these guidelines are advisory only and

the taxation of costs in any particular proceeding is "within the

broad discretion of the trial court." Id at 614.

7

Appellant challenges the award of $445.00 which was paid to

Dr. Ca.ssidy for his attendance at a deposition as it should be

limited to $200.00 total. (Initial Brief, p. 14) . Appellant's

argument is based upon Section 440.13(10), Fla. Stat. (2007)

stating that a health care provider is allowed $200.00 per hour.

However, the deposition was scheduled f or longer than one hour.

(Vol. I, p. 325).

Appellant challenges the award of $10,000.00 in costs for

reimbursement of vocational services he alleged was a benefit

that was provided to claimant. The record is clear that the

services provided by the vocational experts related to the final

hearing and did not relate to services offered to the Appellant.

(Vol. I, p. 328-30). The JCC found that the charges for Re-

EmployAbility did not constitute services but rather were leads

developed by the provider done solely f or evidence for the

Employer/Carrier's vocational expert witness' testimony. (Vol.

I, p. 154) . The JCC did not find that the costs claimed were

excessive or frivolous. The JCC further found that the reduction

in costs was not a benefit that would entitle the Appellant to

fees and costs. (Vol. I, p. 154). As such, the JCC's Order

awarding these costs should be affirmed.

As indicated in the Appellee's Verified Motion to Tax Costs,

"all depositions . . . conferences . . . vocational evaluations

were necessary to . . . provide evidence that the Claimant was

not permanently and totally disabled and that his need for

further treatment of his lower back was not causally related to

the industrial accident of September 4, 2007, that the request

for surgery per Dr. Hershkowitz was not medically necessary or

causally related to the workplace accident, that the claimant was

not entitled to any further indemnity benefits, as the

Employer/carrier was forced to defend all outstanding Petitions

for Benefits." (Vol. I, p. 47)

The JCC did not abuse her discretion in applying Section

440.34(3), Fla. Stat. (2007) and the Uniform Guidelines for

Taxation of Costs in awarding costs against the Appellant. The

Jcc properly accepted the sworn statements contained in the

Verified Motion to Tax Costs and appropriately awarded costs

against the Appellant and her Order should be affirmed.

POINT II

THE JCC PROPERLY DENIED APPELLANT'S MOTION FORAPPROVAL OF RETAINER AGREEMENT AND PAYMENT OFSERVICES RENDERED TO DATE AS SECTION 440.34, FLA.STAT. (2007) DOES NOT PERMIT THE ATTORNEY'S FEEENDORSED BY APPELLANT.

To the extent the issue involves a JCC's interpretation and

application of a statute is a question of law and subject to a de

novo standard of review. Sentry Ins. Co. v. Hamlin, 69 So. 3d

1065, 1069 (Fla. 1st DCA 2011)

The JCC properly held that the attorney fee provision

contained in Section 440.34, Fla. Stat. (2007) must be read in

pan materia and that an attorney representing a injured worker

H in the Workers' Compensation system is only entitled to a an

attorney fee based upon benefits secured and approved by a JCC.

Therefore, the JCC's Order denying Appellant's Request for

Approval of Hourly Retainer and Payment for Services Rendered to

date should be affirmed.

A JCC has only those powers expressly provided by statute,

and, conversely, has no jurisdiction or authority beyond that

which is specifically conferred by statute. A court may not read

into Chapter 440 authority that is not granted to a JCC. See

Bend v. Shamrock Services, 59 So. 3d 153 (Fla. 1st DCA 2011);

McArthur v. Mental Health Care, Inc., 35 So. 3d 105, 107 (Fla.

1st DCA 2010); and McFadden v. Hardrives Construction, Inc., 573

So. 2d 1057, 1059 (Fla. 1st DCA 1991)

The JCC correctly found that the representation by an

attorney to defend a claimant in a cost hearing is not addressed

in Chapter 440 and "[e]ven if it were, the statute clearly limits

approval of any such fee to the statutory guideline amount."

(Vol. I, p. 136). The JCC held that pursuant to Section 440.34,

Fla. Stat. (2007) a JCC is "authorized to do whatever is

necessary to insure that a fee in excess of the fee schedule is

not approved when the claimant is paying the fee." (Vol. I, pgs.

136-37)

JCC5 are bound by the decisions of this Court relative to

the interpretation of Workers' Compensation Law unless and until

the decision is overruled by the Florida Supreme Court or this

10

Court recedes from the decision en banc. See Matrix Employee

Leasing, Inc. v. Hadley, 78 So. 3d 621, 623 (Fla. 1st DCA 2011)

The JCC appropriately interpreted Section 440.34, Fla. Stat.

(2007) to mean what it explicitly says; that fees payable by a

claimant cannot be in excess of the fee schedule and such fees

must be approved by the JCC and based upon benefits secured. See

section 440.34(1), Fla. Stat. (2007). Additionally Section

440.34(1), Fla. Stat. (2007) states in pertinent part "[t]he

judge of compensation claims is not required to approve any

retainer agreement between the claimant and his or her attorney."

Pursuant to the statutes, a retainer agreement may not be in

excess of what is allowed under Sections 440.34(3) and 440.34(7),

F Fla. Stat. (2007) (the allowance of a fee not to exceed

$1,500.00 relating to procuring a medical only benefit).

A court must interpret statutes by the well established

norms of statutory construction which require rendering the

statutory provision meaningful. Crutcher v. Sch. Bd. Of Broward

County, 834 So. 2d 288, 232 (Fla. 1st DCA 2002) . A statute must

be given its plain and obvious meaning. James W. Windham

Builders, Inc., v. Overloop, 951 So. 2d 1170, 1172 (Fla. 1998).

Appellant argues that because Section 440.34(1) provides in

relevant part "fee, gratuity, or other consideration may not be

paid for a claimant . . ." (emphasis added) that a fee may be

paid by a claimant and that the statutory guideline contained in

11

H Section 440.34, Fla. Stat. (2007) has no relevance to such an

instance. Appellant misinterprets the statute.

The doctrine of pan matenia requires that statutes relating

to the same subject or object be construed together to harmonize

the statutes and to give effect to the Legislature's intent.

H Fla. Dep't of State, Div. of Elections v. Martin, 916 So. 2d 763,

768 (Fla. 2005). See also Fla. Dep't of Envtl. Prot. v.

ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1265-66 (Fla.

2008) (statutes should be construed in pan materia to reconcile

inconsistency in related statutes) . The statute, when construed

together in harmony allows only for claimant paid attorney's fees

when benefits have been secured.

Section 440.34(2), Fla. Stat. (2007) provides in pertinent

part "[i]n awarding a claimant's attorney fee, the judge of

compensation claims shall consider only those benefits secured by

the attorney." Therefore, in an instance such as this, where no

benefits have been secured on behalf of the claimant, attorney's

fees are simply not awardable.

As pointed out in the Amicus Brief, the Legislature changed

the statute in 2003 so that the prevailing party could obtain

costs. This evidences the Legislature's intent that an

employer/carrier who prevails may seek to tax costs against a

non-prevailing claimant. If the Legislature intended that a cost

12

hearing against a claimant could not proceed unless a claimant

was represented, such language would have been added.

Appellant argues that it is absurd that a claimant can

contract with an attorney for an hourly fee to defend him in the

enforcement of the cost proceedings in circuit court but due to

the prohibition in section 440.34, Fla. Stat. (2007) cannot

contract with an attorney for an hourly fee to defend him in the

proceeding to determine the entitlement to and amount of costs.

It is even more absurd that Employer/Carriers' are burdened with

seeking to enforce such Orders in circuit court when costs are

awarded and claimants disregard the JCC's mandate.

Appellant's argument that the only way that 440.34, Fla.

Stat. (2007) can withstand constitutional scrutiny is to

interpret the plain language of the statute as permitting a

claimant to freely negotiate with his attorney for the payment of

a fee by him is flawed. Case law supports that courts have an

obligation to construe statutes in a manner that avoids holding a

statute unconstitutional. See State v. Kinner, 398 So, 2d 1360,

1363 (Fla. 1981) (all doubt will be resolved in favor of the

constitutionality of a statute)

Appellant argues that the Legislature removed the language

prohibiting that a fee be paid "for services rendered" suggest

intent to allow a fee to be paid "by" the claimant. Again, the

plain meaning of the statutes when read in pan matenia makes it

clear that a claimant's attorney is awarded fees in workers'

13

compensation for benefits secured on behalf of the injured worker

and at no other time.

Appellant's argument in regard to the fee paid "for" a

claimant rather than "by" a claimant is illogical. The

attorney's fee scheme endorsed by Appellant would be difficult,

if not impossible, to monitor. Appellant asserts that the

Legislature is only concerned with attorney's fee paid for a

claimant by a carrier, employer, servicing agent to be within

guidelines but that the Legislature has no interest in monitoring

attorney's fees paid by a claimant to his attorney with no

oversight by a JCC. Such a scheme completely ignores the intent

of the Legislature. One of the reasons for the workers'

compensation system and current structure providing for

attorney's fees payable to claimant's attorneys is to protect

injured workers, in their time of need and desperation, from

being taken advantage of by unscrupulous attorneys seeking to

benefit from their unfortunate circumstance for their own gain.

This is precisely the judicial oversight and protection that the

Legislature intends for the JCC to retain.

The JCC properly denied Appellant's Motion for Approval of

Hourly Retainer Agreement and Payment of Services to Date.

Therefore, the JCC's Order does not violate Section 440.34, Fla.

Stat. (2007) and should be affirmed.

14

POINT III

SECTIONS 440.105 AND 440.34, FLA. STAT. (2007) ARECONSTITUTIONAL AND DO NOT VIOLATE THE FIRSTAMENDMENT RIGHTS TO FREE SPEECH, FREEDOM OFASSOCIATION OR THE RIGHT TO PETITION FOR REDRESS,AS THERE IS NO FUNDAMENTAL RIGHT TO COUNSEL INTHIS MATTER AND THESE SECTIONS PASS THE TIONAL

H BASIS TEST.

Issues that involve a determination of a statute's

constitutionality are a question of law subject to de novo

review. Grist v. Fla. Ass'n of Criminal Def. Lawyers, Inc., 978

So. 2d 134, 139 (Fla. 2008)

This Court has addressed challenges to the constitutionality

of chapter 440 and has repeatedly rejected such arguments. See

Lundy V. Four Seasons Ocean Grand Palm Beach, 932 So. 2d 505

(Fla. 1st DCA 2006) (held that section 440.34(1) does not violate

the separation of powers doctrine, the due process clause, the

equal protection clause, the right to counsel and the right to

freely contract per the Florida Constitution); Kaufman v.

Community Inclusions, Inc., 57 So. 3d 919 (Fla. 1st DCA

2011) (this Court rejected equal protection, due process,

separation of powers and access to courts challenges made to

amended section 440.34); Khoury v. Carvel Homes South, Inc., 403

So 2d 1043 (Fla. 1st DCA 1981) (this Court upheld

constitutionality of section 440.34(1) against challenges that it

violates equal protection, due process and the contract clause)

Medina v. Gulf Coast Linen Services, 825 So. 2d 1018 (Fla. 1st

15

DCA 2002) (this Court held that section 440.15 does not violate

due process, access to courts, separation of powers and right to

jury trial).

The Florida Supreme Court in Samaha v. State, 389 S9. 2d

639, 641 (Fla. 1980), held that the statute which makes it a

misdemeanor for an attorney to receive fees from a workers'

compensation claimant without prior approval by the JCC does not

violate due process, does not improperly delegate authority to

the JCC, does not violate the equal protection clause and does

not discriminate between contracts that lawyers make with

different clients.

"When a statute is clear and unambiguous, courts have no

need to look behind the plain language or resort to rules of

statutory construction to find legislative intent." Wolf v.

Progressive American Insurance Company, 34 So. 3d 81, 82 (Fla.

1st DCA 2010); Warren v. State Farm Mut. Auto Ins. Co., 899 So.

2d 1090, 1095 (Fla. 2005)

"Established rules of statutory construction demand that

when interpreting a statute, courts should give terms their plain

meaning." Srygley v. Capital Plaza, Inc., 82 So. 3d 1211, 1212

(Fla. 1st DCA 2012) (citing Carmack v. State, Dep't of Agric., 31

So. 3d 798, 800 (Fla. 1st DCA 2009)) . "Where the wording of the

law is clear and amenable to a logical and reasonable

interpretation, a court is without power to diverge from the

intent of the Legislature as expressed in the plain language of

the law." United Auto. Ins. Co. v. Rodriguez, 808 So. 2d 82, 85

(Fla. 2010)

There is a strong presumption that a statute is

constitutionally valid and "an act will not be declared

unconstitutional unless it is determined to be invalid beyond a

reasonable doubt " Medina v Gulf Coast Linen Services, 825 So

2d 1018, 2010 (Fla. 1st DCA 2002) (citing Todd v. State, 643 So.

3d 625 (Fla. 1st DCA 1994), review denied, 651 So. 2d 1197 (Fla.

1995), cert. denied)); State v. Kinner, 398 So. 2d 1360, 1363

(Fla. 1981) (citing Knight and Wall Co. v. Bryant, 178 So. 2d 5

(Fla. 1965), cert. denied 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.

301 (1966)

The Florida Supreme Court held in State v. Powell, 497 So.

2d 1188, 1190 (Fla. 1986) that "a legislative act carries with it

the presumption of validity and the party challenging a statute's

constitutionality must carry the burden of establishing that the

statute bears no reasonable relation to a permissible legislative

objective." See Johns v. May, 402 So. 2d 1166 (Fla. 1981)

"Merely because legislation places some restriction on the

right to freely contract will not invalidate the legislation if

the restriction was intended to protect the public's health,

safety or welfare." City of El Paso v. Simmons, 379 U.S. 497,

508-09, 85 S.C.T. 577, 583-84, 13 L.Ed.2d 466 (1965); Golden v.

McCarty, 337 So. 2d 388 (Fla. 1976)

17

In the case of Yei.ser v. .DysarL, 267 U.S. 540, 45 S.Ct. 399,

69 L.Ed. 755 (1925), a challenge was made to a statute that

regulated attorneys fees which was similar to Section 440.34(1),

Fla. Stat. (2007). This statute provided that only such sum

could be demanded for services in bringing a suit under the

workers' compensation act as the court should allow, and a

contract for other and further pay was void. (emphasis added)

In Yeiser, the appellant argued, similar to the instant

case, that the statute unreasonably restricted the liberty of

contract and deprived him of liberty and property without due

process. The court in Yeiser denied the challenges made stating

that a large portion of those covered by the act need protection

against improvident contracts and their protection is the

public's and their own self-interest and an attorney is licensed

by the State and workers' compensation is created by the State;

therefore, with regard to workers' compensation, the state may

attach such contentions on the license to practice law as it

deems necessary for the public good. Here, the state has an

interest in protecting against improvident contracts and the

interest is to protect the public such as injured workers.

Next, Appellant argues that the First Amendment prohibits

government from interfering with the consultation or retention of

legal counsel. Specifically, that Sections 440.105 and 440.34,

Fla. Stat. (2007) infringe upon an individual's right to freedom

of speech, freedom of association and the right to petition

relative to consulting with or retaining an attorney in Workers'

Compensation matters.

Freedom of speech and press as provided in Art. I § 4 of the

Florida Constitution indicates that "every person may speak,

write and publish sentiments on all subjects but shall be

responsible for the abuse of that right. No law shall be passed

to restrain or abridge the liberty of speech or of the press

1I Appellant has not identified any speech that has allegedly

been infringed upon in violation of the First Amendment.

Appellant has not identified how this purported speech infringed

upon is in violation of the First Amendment. Additionally,

Appellant has not identified which government entity is

infringing upon his speech in violation of the First Amendment.

Freedom of assembly or association pursuant to Art. I § 5

provide that people have the right to come together and

collectively express, promote, pursue and defend common

interests. The freedom of association is not specifically

mentioned in the First Amendment of the United States

Constitution. It appears to have grown out of the guarantee of

the right to peaceably assemble and out of the free of speech.

See Eccles v. Nelson, 919 So. 2d 658, 661 (Fla. 5th DCA 2006)

Appellant has not identified how he was allegedly prohibited from

assembling, who he was prohibited from assembling with nor has he

19

identified the government entity allegedly prohibiting such

assembly.

The right to petition for redress pursuant to Art. I § 5

prohibits Congress from abridging an individual's right to

petition the Government for a redress of grievances. Appellant

has not identified how he has allegedly been prohibited from

petitioning for redress. In fact, at the underlying hearing,

Appellant had the ability to speak and to be heard by the JCC as

evidenced in the record. (Vol. I, pgs. 239-338)

The right to freedom of speech, association and to petition

for redress is not infringed upon because an individual is not

represented by counsel in an administrative hearing. Sections

440.105(3) (c) and 440.34, Fla. Stat. (2007) do not prohibit

claimants from consulting with or retaining an attorney of their

choice. The underlying problem intimated by Appellant is that

the Workers' Compensation Statutory scheme does not provide for

attorney's fees payable to a claimant's attorney at a cost

hearing. As such, Appellant would like for this Honorable Court

to declare sections of the Workers' Compensation Law

unconstitutional. However, this is an issue that should be taken

up with the Legislature rather than this Court. See Staffrnark v.

Merrell, 43 So. 3d 792 (Fla. 1st ]JCA 2010) (this Court held upheld

the clear and unambiguous language allowing for the apportionment

of all workers' compensation benefits and rejected the claimant's

contention that policy considerations concerning the harmful

20

consequences may result. This Court held that such arguments

should be directed to the Legislature rather than this Court).

The rational basis test is the proper basis by which to

review Appellant's claims. See Bradley v. Hurricane Restaurant,

670 So. 2d 162 (Fla. 1st DCA 1996). In Lucas v. Englewood

Community Hospital, 963 So. 2d 894, 895 (Fla. 1st DCA 2007) , this

Court held that "[b]ecause section 440.20(ll)(c) do not

negatively impact a suspect class or result in the deprivation of

a fundamental right, the appellant's challenge is subject to a

rational basis review." Similarly, Sections 440.105 and 440.34

doe not negatively impact a suspect class and do not deprive one

of a fundamental right. As such, the rational basis standard is

appropriate here.

This Court previously held in Sasso v. Ram Property

Management, 431 So. 2d 204 (Fla. 1st DCA 1983), aff'd 452 So. 2d

932 (Fla. 1984), appeal dismissed, 469 U.S. 1030, 105 S.Ct. 498,

83 L.E.2d 391 (1984), that the rational basis analysis is highly

deferential toward action taken by the state and is virtually

insurmountable because of the burden in showing that the state

action is without any rational basis which is placed on the

challenging party. Appellant has not shown that the state action

of limiting attorney's fees to when benefits are secured on

behalf of an injured worker is without any rational basis.

21

The purpose of the Workers' Compensation Act was to see that

workers were rewarded for their industry by not being deprived of

reasonably adequate and certain payments for workplace accidents

and to replace an unwieldy tort system that made it virtually

impossible for businesses to predict or insure for the cost of

industrial accidents. Bradley v. Hurricane Restaurant, 670 So.

2d 162 (Fla. 1st DCA 1996) . Another purpose is to "assure the

quick and efficient delivery of disability and medical benefits

to an injured worker and to facilitate the workers' return to

gainful reemployment at a reasonable cost to the employer."

Hensley v. Punta Gorda, 686 So. 2d 724, 727 (Fla. 1st DCA 1997)

Another purpose of Workers' Compensation law is to protect

employees and their dependents from financial disaster. Styles

v. Broward County School Board, 831 So. 2d 212, 213 (Fla. 1st DCA

2002) citing Broward v. Jacksonville Med. Ctr., 690 So.2d 589,

591 (Fla. 1997) . Additionally, the Workers' Compensation law

places on industry rather than the general taxpaying public the

expense incident to the hazards created by industry. HDV

Construction Systems, Inc., v. Aragon, 66 So. 3d 331 (Fla. 1st

DCA 2011)

The Florida Supreme Court has held that because an employer

stands to benefit and profit from their employment of labor and

is in the best position to avoid the risk of loss, "the courts

have recognized the impropriety of imposing on society the costs

22

of a broken body and diminished income created by the industry."

Mobile Elevator Co. v. White, 39 So. 2d 799, 800 (Fla. 1949)

"The party challenging a statute has the burden to

demonstrate the unconstitutionality of the statute by negating

every conceivable basis for upholding the law." Lundy v. Four

Seasons Ocean Grand Palm Beach, 932 So. 2d 506, 509 (Fla. 1st DCA

2006); McElrath v. Burley, 707 So. 2d 836, 839 (Fla. 1st DCA

1998).

Appellant argues that no compelling state interest is

constitutionally advanced by the preclusion of retaining an

attorney at the claimant's own expense for legal services

rendered that do not involve securing a benefit. Under rational

basis review Sections 440.105 and 440.34 bear a rational

relationship to a legitimate legislative objective. The

Legislative intent is to protect industry from "an unwieldy tort

system" and protect "employees and their dependents from

financial disaster" by guaranteeing attorneys are only paid for

securing benefits on behalf of their clients. Appellant cannot

demonstrate that Sections 440.105 and 440.34, Florida Statutes

are unconstitutional. Appellant cannot demonstrate by negating

every conceivable basis for upholding the law. Rather, the

attack is centered on an inability to procure attorney's fees in

a specific scenario; when a claimant is faced with a Verified

Petition to Tax Costs pursuant to Section 440.34(3), Fla. Stat.

23

Appellant's Initial Brief and the Amicus Curiae Brief in

Support of the Appellant should be rejected as Appellant has not

established that the Florida Workers' Compensation statutes are

unconstitutional and has not shown that the statutes do not bear

a rational relationship to legitimate state objectives.

POINT IV

THE 2003 CHANGES TO THE WORKERS' COMPENSATION LAWWHICH ALLOW THE TAXATION OF COSTS AGAINST ANINJURED WORKER WHO DOES NOT PREVAIL ON HIS CLAIMDO NOT VIOLATE FLORIDA CONSTITUTION ARTICLE I,

SECTIONS 2, 21 & 23.

Appellant argues that the changes made to Section 440.34 in

2003 are unconstitutional as they deny him the right to retain

counsel to defend himself in a cost hearing and violate Article

I, sections 2, 21 and 23 of the Florida Constitution.

The Sixth Amendment to the United States Constitution

provides that "[un all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for his

defense." U.S. Const. Amend. VI. (emphasis added). An injured

worker under the Workers' Compensation Act does not have a

fundamental right to an attorney. Claimants do not enjoy the

same Sixth Amendment right to counsel as a criminal defendant.

See Remeta v. State, 559 So. 2d 1132 (Fla. 1990) ; Makemson v.

Martin County, 491 So. 2d 1109 (Fla. 1986); Gideon v. Wainwright,

372 U.S. 335 (1963)

24

The landmark case of Gideon v. Wainwright, 372 U.S. 335

(1963), established that a criminal defendant shall enjoy the

right to the assistance of counsel pursuant to the Fourteenth

Amendment. There is no such holding by this Honorable Court or

the Florida Supreme Court declaring that an injured worker has a

Fourteenth Amendment right to the assistance of counsel in

proceedings relating to workers' compensation.

In a civil dependency proceeding where a child was

adjudicated dependent, a mother alleged that her appointed

counsel was ineffective. S.B. v. Department of Children and

Families, 851 So. 2d 689 (Fla. 2003). The Florida Supreme Court

rejected the holdings of the state circuit court and the United

States District Court that all indigent participants in juvenile

dependency proceedings "are entitled, as a fundamental right, to

have counsel supplied to them by the state." Id. at 692. The

Florida Supreme Court found that the constitutional right to

counsel was not implicated in that case and would arise when the

proceedings could result in a permanent loss of parental custody.

A police officer appealed an order from an administrative

law judge claiming that he was denied the assistance of competent

counsel. Mullins v. Department of Law Enforcement, 942 So. 2d

998 (Fla. 5th DCA 2006). Mullins was found to have committed

conduct that violated the police officer standards of conduct

defined by statute and rule. Mullins was denied certification as

25

a law enforcement officer after the administrative hearing. The

Fifth District Court of Appeal held that "[am ineffective

assistance of counsel claim is premised on a violation of an

individual's Sixth Amendment right to counsel." Id. at 1000. See

also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984)

A woman charged with operating a motor vehicle with a blood-

alcohol level that was in excess of state statute requested an

administrative hearing in regard to her license suspension as a

result of the criminal charge. Fasching v. .Backes, 452 N.W. 2d

324 (N.D. 1990) . The court in Fasching held that constitutional

protections afforded in criminal proceedings were not applicable

in administrative license-suspension proceedings.

In McDermott v. Miami-Dade County, 753 So. 2d 729 (Fla. 1st

DCA 2000), this Honorable Court reviewed a writ of certiorari

relative to an order by a judge of compensation claims

prohibiting a claimant's attorney from discussing circumstances

of her accident until she appeared for the continuation of her

deposition. This Court found that the judge of compensation

claims did not depart from the essential requirements of the law

because "McDermott Ehad] no constitutional right to counsel in

this proceeding." Id. at 732. (emphasis added).

Here, Appellant has not established a fundamental right to

an attorney pursuant to the Fourteenth Amendment. It simply does

26

not exist. Appellant does not have the right to an attorney

appointed by the Judge of Compensation Claims. Appellant's

attorney has not served the public by representing an indigent

criminal defendant. Appellant's attorney has not been appointed

by the JCC to represent Appellant. The JCC has no authority to

appoint an attorney for a claimant The JCC is not charged with

"an essential function" of "ensuring adequate representation by

competent counsel." Appellant can hardly be compared to an

indigent criminal defendant.

The Amicus Curiae Brief submitted in support of the

Appellant's position also discusses challenges to statutory

attorney fee schemes in areas of law other than Workers'

Compensation. The Florida Workers' Advocates argue that the

holdings in Makemson v. Martin County, 491 So. 2d 1109 (Fla.

1986) and subsequent cases such as Maas v. Olive, 992 So. 2d 196

(Fla. 2008) should apply here. The cases cited by The Florida

Workers' Advocates are criminal cases that involve a circuit

court judge's performance of "an essential judicial function of

ensuring adequate representation by competent counsel." Makemson

at 1113. In both Makemson and Maas the Florida Supreme Court was

faced with constitutional challenges to the statutory fee

limitation; that it was unconstitutional relative to the

representation of indigent defendants in criminal matters. The

27

holdings of these cases have no relevance or application to a

statutory fee limitation in a workers' compensation case.

In Makemson, the statute that provided the fee limitation

for appointed attorneys representing indigent defendants was

found to be unconstitutional. The Florida Supreme Court held

that Florida trial courts have the inherent power to allow, in

extraordinary and unusual cases, departure from the statute's fee

guidelines in criminal cases when necessary in order to ensure

that an attorney who has served the public by defending the

accused is not compensated in an amount which is confiscatory of

his or her time, energy or talents. Id. at 1114. (emphasis

added).

The Florida Supreme Court in Makemson addressed the

challenge to the cap to the statutory fee for attorneys who

defend indigent defendants in criminal courts and reiterated that

Gideon establishes "fundamental the right to effective counsel

and established the state's duty to provide representation to the

indigent." Id. (emphasis added).

Appellant argues that because costs were assessed against

him after all claims were denied by the JCC, such cost award

should be rendered unconstitutional because he was prevented from

retaining an attorney. Appellant's claim alleges that he was

willing to pay the $175.00 per hour to his attorney to represent

him at the cost hearing. Yet, the Appellant stated at the

28

beginning of the cost hearing that he did not have any money to

hire an attorney. Appellees respectfully request that this

Honorable Court take judicial notice of the fact that the

Appellant was deemed insolvent by the JCC, as such, the cost of

preparing the record for this appeal was ordered to be paid for

by the Workers' Compensation Administrative Trust Fund. This

coupled with the fact that Appellant stated, on the record, that

he did not have money to retain counsel suggests that this appeal

has nothing to do with a violation of a right to contract freely

and to pay an attorney fee "by" a claimant.

This Honorable Court has recently reviewed a challenge to

access to courts in an instance where a claimant was taxed costs

after withdrawing a petition for benefits. See Frederick v.

Monroe County School Board, WL4746524 decided October 5, 2012

(however, this opinion has not been released for publication as

of this date). This Court indicated that this is a policy

question that the Legislature may want to address. However, the

law currently in effect permits an employer/carrier to tax costs

against the claimant when the claimant does not prevail pursuant

to 440.34(3), Fla. Stat. (2007).

Appellant argues that Sections 440.105 and 440.34, Fla.

Stat. (2007) infringe on his right to privacy by impeding his

right to contract freely, denies due process because Sections

440.34 and 440.105, Fla. Stat. (2007) restrict his ability to

secure representation and denies equal protection because the

29

statutes make it a criminal act for an attorney to accept fees

payable by a claimant. This Court in Khoury v. Carvel Homes

South, Inc., 403 So. 2d 1043 (Fla. 1st DCA 1981) upheld the

constitutionality of Section 440.34(1), Fla. Stat. against a

challenge that Section 440.34, Fla. Stat. violated the contract

clause. Additionally, the Florida Supreme Court rejected such

challenge in Sarnaha. Also in Samaha, a challenge was made

relative to the statute that made it a misdemeanor to receive any

fees or other consideration or gratuity unless approved by the

judge of industrial claims. See Section 440.34(5), Fla. Stat.

(1979). Section 440.105(3), Fla. Stat. (2007) is the current

version which makes it unlawful for any attorney to receive a fee

or other consideration or any gratuity that is not approved by a

judge of compensation claims.

Appellant's argument is that "no employee will EVER be able

to get an attorney to be able to represent him in a cost

proceeding." (Initial Brief, p. 32). As stated above, and

recently held by this Court, this policy argument should be

addressed with the Legislature. Injured workers are free to

retain attorneys, but are free to present to proceedings before

the judge of compensation claims without counsel and many times

do. In fact claimants have the right to represent themselves in

lieu of representation by an attorney at any stage of litigation.

The Florida Supreme Court held in Samaha that the "basis for

Samaha's arguments is nebulous, but he claims that the statute

violates due process, improperly delegates authority to the judge

of industrial claims, and violates the equal protection clause of

the constitution in that it discriminate between contracts that

lawyers make with different clients." Id. at 640. The Florida

Supreme Court held the statute contained no discernible ambiguity

and that it was lear that the Legislature "is telling all that

one doesn't charge or receive a fee from a workman's compensation

beneficiary unless such action and the fee are approved by the

proper representative of the state in the proceeding." Id.

Appellant makes essentially the same arguments here as in Sarnaha

and such arguments have previously been rejected.

Appellant argues that strict scrutiny applies; however,

there is no fundamental right to an attorney in Workers'

Compensation cases. As indicated above, the rational basis of

review applies and the state has legitimate interests. "One of

the fundamental purposes of workers' compensation is to relieve

society of the burden of caring for an injured person by placed

the burden on the industry involved." Humana of Florida, Inc. v.

McKaughan, 652 So. 2d 852, 857 (Fla. 2nd IJCA 1995) (citing

Sullivan v. Mayo, 121 So. 2d 424 (Fla. 1960)). Another

fundamental interest is to provide a system in which liability is

limited and determinative and the remedy is expeditious and

independent of proof of fault. McKaughan at 857. (citing

Thompson v. W.T. Edwards Tuberculosis Hosp., 164 So. 2d 13 (Fla.

31

1964)) ; McLean v. Mundy, 81 So. 2d 501 (Fla. 1955) . Sections

440.105 and 440.34 rationally relate to a legitimate state

interest to see that injured workers are not paying out of their

own funds for legal representation. The Legislature has enacted

section 440 34 to ensure that attorney fees in workers'

compensation are regulated. Additionally, the fact that Section

440.105, Fla. Stat. (2007) makes it a misdemeanor for an attorney

to receive compensation from a claimant shows that the

Legislature is serious about the state interest in protecting

injured workers.

Lastly, Appellant argues that the Workers' Compensation Laws

are an unreasonable alternative to tort litigation. Appellant

argues that the tort system offers "a plethora of advantages

compared to the Act." This idea completely ignores the state's

interest in adopting the Act in the first place. According to

the Florida Supreme Court in Martinez v. Scanlan, 582 So. 2d 1167

(Fla. 1991) , the Workers' Compensation law remains a reasonable

alternative to tort litigation. See also Acton II v. Fort

Lauderdale Hospital, 440 So. 2d 1282 (Fla. 1983)

The Florida Workers' Compensation system replaced the

unwieldy tort system with a no-fault insurance program. See

Medina at 1020. The Florida Supreme Court held that Workers'

Compensation law remains a reasonable alternative to tort

litigation. Martinez v. Scanlan, 582 2d 1167, 1172 (Fla. 1991)

32

Furthermore, the Florida Supreme Court rejected claims that

workers' compensation laws violate access to courts by failing to

provide a reasonable alternative to common-law tort remedies.

Martinez at 1171. See also Sasso.

Appellant also argues that the Florida Workers' Compensation

Act violates separation of powers. Such charges have been before

this Court and the same have been rejected. See Medina v. Gulf

Coast Linen Services, 825 So. 2d 1018 (Fla. 1st ]JCA 2002); Lundy

v. Four Seasons Ocean Grand Palm Beach, 932 So. 2d 506 (Fla. 1st

DCA 2006); Kaufman v. Community Inclusions, Inc., 57 So. 3d 919

(Fla. 1st DCA 2011)

Appellant argues that the "coup de grace" is the Legislature

delivering the imposition of costs against an unsuccessful

claimant and removing his right to contract with an attorney. As

indicated above, the state interest is rationally related to the

statute. The Legislature may limit the amount a claimant's

attorney may charge because the state has a legitimate interest

in regulating attorney's fees. Lundy at 510. Here, the

Legislature intended the receipt of attorney's fees for benefits

secured only. Had they intended something else, they would have

included language in the statute that articulates that intent.

Appellant's argument that the current Worker's Compensation

system is expensive has no bearing on the constitutionality of

the Workers' Compensation Statutes. The underlying case involved

extensive litigation due to the issues and defenses. Whether

33

.-...

litigation is expensive or inexpensive has absolutely no bearing

on the issues before this Court.

Appellant has not met his burden by showing that his rights

pursuant to the Florida Constitution have been infringed upon by

application of the Florida Workers' Compensation Statutes. The

State of Florida has a legitimate interest in the enactment of

the Workers' Compensation Statutes. Appellant does not have a

fundamental right to an attorney in a Workers' Compensation

proceeding.

For all the reasons outlined in this Answer Brief, the

Appellees ask this Honorable Court to reject the Appellant's

challenges to the constitutionality of Sections 440.34 and

440.105, Fla. Stat. (2007) and affirm the holding of the Judge of

Compensation Claims.

34

CONCLUS ION:

The JCC properly awarded costs against Appellant under

Section 440.34(3), Fla. Stat. (2007) pursuant to Brascom v.

Hilisborough County Sheriff's Office, 65 So 3d 619 (Fla 1st DCA

2011) and Uniform Guidelines for Taxation of Costs, 915 So. 2d

612 (Fla. 2005). Appellant's challenges should be denied and the

JCC's Order affirmed.

The JCC properly denied Appellant's Retainer Fee Agreement

and did not err in her interpretation of Section 440.34. A JCC

does not have authority to approve an Hourly Retainer Agreement

that violates Section 440.34, Fla. Stat. (2007) . As such, the

JCC's Order denying Appellant's Request for Approval of an Hourly

Retainer Agreement and for Payment of Services to date was proper

and should be affirmed.

This Honorable Court has addressed constitutional challenges

to Section 440.34, Fla. Stat. and has repeatedly held the same

constitutional. Under rational basis review, Appellant has not

satisfied his burden of showing that the State's interest in

enacting the Workers' Compensation Statutes is without any

rational basis. Appellant's arguments fail and should be

rejected.

A claimant in the Workers' Compensation system does not have

a fundamental right to an attorney. As such, a claimant does not

have a statutory or constitutional right to an attorney at a cost

hearing.

35

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original of the foregoing has been

furnished via eDCA on October 25, 2012 to First District Court of

Appeal, 2000 Drayton Drive, Tallahassee, FL 32399-0950; and a

copy via U.S. Mail and e-mail to Jeffrey E. Appel, Esquire, 625

Commerce Drive, Suite 103, Lakeland, FL 33813; and Michael J.

Winer, Esquire, Law Office of Michael J. Winer, 110 North 11th1

Street, 2nd Floor, Tampa, FL 33602-4202.

/s/ Vanessa J. JohnsonVanessa J. Johnson, Esquirevjohnson@sponslerbennett.comFlorida Ear No. 593311Sponsler, Bennett, Jacobs & Adams, P.A.Post Office Box 3300Tampa, FL 33601Telephone: 813-272-1400Facsimile: 813-272-1401Attorneys for Employer/Carrier/Appellees

36

CERTIFICATE OF TYPE FACE COMPLIANCE

I HEREBY CERTIFY that this Answer Brief was computer

generated using Courier New 12 point font using Microsoft Word,

and hereby complies with the font standards as required for

computer-generated briefs

/s/ Vanessa J. JohnsonVanessa L Johnson, Esquirevjohnson@sponslerbennett.comFlorida Bar No. 593311Sponsler, Bennett, Jacobs & Adams, P.A.Post Office Box 3300Tampa, FL 33601Telephone: 813-272-1400Facsimile: 813-272-1401Attorneys for Employer/Carrier/Appellees

37