Circle K Stores, Inc./ Constitution State etc. v. Emerita Flores-Orellana

• Court: District Court of Appeal of Florida
• Decided: August 27, 2017
• Docket: 16-1715
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

CIRCLE-K STORES, INC./ NOT FINAL UNTIL TIME EXPIRES TO CONSTITUTION STATE FILE MOTION FOR REHEARING AND SERVICES COMPANY, DISPOSITION THEREOF IF FILED

Appellants/Cross- CASE NO. 1D16-1715 Appellees,

v.

EMERITA FLORES- ORELLANA,

Appellee/Cross- Appellant. _____________________________/

Opinion filed August 21, 2017.

An appeal from an order of the Judge of Compensation Claims. Jack A. Weiss, Judge.

Date of Accident: August 21, 2009.

H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.A., West Palm Beach, for Appellants/Cross Appellees.

Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellee/Cross- Appellant.

PER CURIAM.

In this workers’ compensation case, the Employer/Servicing Agent (E/SA)

appeal an order of the Judge of Compensation Claims (JCC) awarding Claimant E/SA-paid attorney’s fees and costs based on Claimant’s success in a proceeding for

modification. Claimant cross-appeals the JCC’s determination of the attorney fee

amount and denial of a separate attorney’s fee for establishing fee entitlement. We

affirm the issue on appeal, as well as the denial of a separate attorney’s fee

challenged in the cross-appeal. However, we reverse and remand for a re-calculation

of the fee amount because the JCC erred by calculating it using a discount factor

based on evidence outside of the record. See § 440.34(1), Florida Statutes (2009).

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

ROWE, OSTERHAUS, and WINOKUR, JJ., CONCUR.