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November 10, 2017 by Tom

Workers’ compensation — Attorney’s fees — Judge of compensation claims erred in rejecting jointly agreed upon employer/carrier-paid attorney’s fee and requiring excess amount of fee to be remitted to claimant personally — Record contained no evidence rebutting claimant’s counsel’s sworn affidavit or representations of e/c’s counsel regarding time entries contained within affidavit, which the JCC deleted — JCC had no authority to reform parties’ agreement or to redirect attorney’s fees from counsel to claimant — Remand for further proceedings

42
Fla. L. Weekly D2376bTop of Form

Workers’
compensation — Attorney’s fees — Judge of compensation claims erred in
rejecting jointly agreed upon employer/carrier-paid attorney’s fee and
requiring excess amount of fee to be remitted to claimant personally — Record
contained no evidence rebutting claimant’s counsel’s sworn affidavit or
representations of e/c’s counsel regarding time entries contained within
affidavit, which the JCC deleted — JCC had no authority to reform parties’
agreement or to redirect attorney’s fees from counsel to claimant — Remand for
further proceedings

YEIMIS BANEGAS, Appellant, v. ACR
ENVIRONMENTAL, INC., and BERKLEY SPECIALTY UNDERWRITING MANAGERS, Appellees.
1st District. Case No. 1D17-1251. 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. Counsel: 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.

* * *

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