DISTRICT COURT OF APPEAL FIRST APPELLATE DISTRICT TALLAHASSEE, FLORIDA EUGENE JACOBSON, Docket No.: 1D12-1103 Appellant, Lower Tribunal Case 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, Esquire vj ohnson@sponslerbennett . corn Florida Bar No. 593311 Sponsler, Bennett, Jacobs & Adams, P.A. Post Office Box 3300 Tampa, FL 33601 Telephone: 813-272-1400 Facsimile: 813-272-1401 Attorneys for Employer/Carrier/Appellees This is an appeal from an Order on Claimant's Amended Motion for Approval of Hourly Retainer Agreement and Payment of $525 to Claimant's Counsel for Services Rendered to Date dated January 24, 2012 and from a Final Order on Employer/Carrier's Verified Motion to Tax Costs Against Eugene Jacobson dated January 31, 2012, both from the State of Florida, Division of Administrative Hearings, Office of the JCC, Diane B. Beck, Sarasota District. E-Copy Received Oct 25, 2012 4:55 PM
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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.
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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
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
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
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)
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