Yeimis Banegas v. ACR Environmental, inc and Berkley etc.

• Court: District Court of Appeal of Florida
• Decided: November 5, 2017
• Docket: 17-1251
• Status: Published

Opinion

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

YEIMIS BANEGAS, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D17-1251

ACR ENVIRONMENTAL, INC., and BERKLEY SPECIALTY CORRECTED PAGES: pg 2 UNDERWRITING MANAGERS, CORRECTION IS UNDERLINED IN RED Appellees. MAILED: November 6, 2017 BY: KMS

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Opinion filed November 6, 2017.

An appeal from an order of the Judge of Compensation Claims. John J. Lazzara, Judge.

Date of Accident: December 3, 2013.

Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.

Christopher W. Wadsworth and Samuel J. Cili of Wadsworth Huott, LLP, Miami, for Appellees.

PER CURIAM.

In this workers’ compensation appeal, Claimant, through her counsel,

challenges the Judge of Compensation Claims’ (JCC’s) order reducing the jointly

agreed upon amount of the Employer/Carrier-paid attorney’s fee and requiring that 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). Neither 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 here contains no evidence to rebut Claimant’s counsel’s sworn affidavit or

the representations of the Employer/Carrier’s counsel, the JCC erred in reducing the

time entries contained within that affidavit.

In Luces v. Red Ventures, 140 So. 3d 999 (Fla. 1st DCA 2014), we explained

that “chapter 440 limits the authority of JCCs and does not authorize them to reform

the agreements of the parties on their own motion.” Id. at 1000. Further, a JCC is

“without authority to redirect the attorney’s fee from counsel to claimant as an

exercise of plenary equitable jurisdiction.” Id. Here, the JCC erred in doing so.

Accordingly, we REVERSE the portion of the order reducing the agreed upon

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.