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February 10, 2017 by admin

Workers’ compensation — Costs — Prevailing employer/carrier — Claimant lacked standing to raise argument that imposition of prevailing party costs on him, as injured worker, is unconstitutional as a denial of access to courts where claimant failed to establish a real and immediate injury resulting in denial of access to courts

42
Fla. L. Weekly D326b
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Workers’
compensation — Costs — Prevailing employer/carrier — Claimant lacked
standing to raise argument that imposition of prevailing party costs on him, as
injured worker, is unconstitutional as a denial of access to courts where
claimant failed to establish a real and immediate injury resulting in denial of
access to courts

MANUEL
GOVEA, Appellant, v. STARBOARD CRUISE SERVICE, INC./TRAVELERS INSURANCE CO.,
Appellees. 1st District. Case No. 1D16-2123. Opinion filed February 7, 2017. An
appeal from an order of the Judge of Compensation Claims. Margret G. Kerr,
Judge. Date of Accident: December 23, 2011. Counsel: Richard A. Sicking and
Mark A. Touby of Touby, Chait & Sicking, P.L., Coral Gables, for Appellant.
Steven H. Preston of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for
Appellees.

(PER
CURIAM.) In this workers’ compensation case, Claimant appeals the Judge of
Compensation Claims’ (JCC’s) order granting the Employer/Carrier’s (E/C’s)
motion for prevailing party costs under subsection 440.34(3), Florida Statutes
(2011). Because we find no error in the JCC’s application of the statute under
the circumstances here, we affirm the JCC’s order with regard to the
substantive and procedural grounds argued in Issue I without additional
comment. We also reject the constitutional challenge to subsection 440.34(3)
raised in Issue II, because Claimant failed to prove he has standing.

Our
review of constitutional claims is de novo. See Medina v. Gulf Coast
Linen Servs.
, 825 So. 2d 1018, 1020 (Fla. 1st DCA 2002). Because JCCs do
not have the authority to address constitutional issues, the JCC here made no
findings on the constitutional challenge. See B & B Steel
Erectors v. Burnsed
, 591 So. 2d 644, 647 (Fla. 1st DCA 1991) (stating “we
note that workers’ compensation judges do not have the power to determine the
constitutionality of a portion of the Workers’ Compensation Act, and that such
issues may be raised for the first time on appeal, without having been
preserved below”). Nevertheless, Claimant was not prohibited from creating a
supporting record below. See Anderson Columbia v. Brown, 902 So.
2d 838, 841 (Fla. 1st DCA 2005) (holding that inability of JCC to rule on
constitutional issues does not preclude claimant from building record so that
constitutional challenge might be made on appeal).

Here,
Claimant argues that the imposition of prevailing party costs on him, as the
injured worker, is unconstitutional as a denial to access to courts. To
establish standing to make this challenge, Claimant first “must demonstrate ‘an
injury which is both real and immediate, not conjectural or hypothetical.’ ” Punsky
v. Clay Cty. Bd. of Cty. Comm’rs
, 60 So. 3d 1088, 1092 (Fla. 1st DCA 2011)
(quoting Montgomery v. Dep’t of Health & Rehab. Servs., 468 So. 2d
1014, 1016 (Fla. 1st DCA 1985)). In Punsky, the claimant asserted a
violation of his right of access to courts because it will be “ ‘a rare injured
worker’ who can afford to pay the costs of litigation when his claim fails.” Id.
at 1092. But the claimant there provided no evidence in support of the alleged
injury. Accordingly, the Punsky court concluded that the claimant’s
constitutional argument failed “because there is no support in the record for
his argument that the award of costs is ‘an injury which is both real and
immediate, not conjectural or hypothetical.’ ” Id. (quoting Montgomery,
468 So. 2d at 1016).

Similar
to the claimant in Punsky, Claimant here argues that the requirement of
claimant-paid costs has a potential chilling effect on the pursuit of claims,
but offers no support of a real and immediate injury. Although Claimant may
well be adversely affected by the amended statute, he does not explain how this
distinguishes him from the claimant in Punsky. Because Claimant has
failed to establish a real and immediate injury resulting in a denial of access
to courts, he lacks the necessary standing to pursue a constitutional challenge
on this ground and this issue must fail. We, therefore, AFFIRM the award of
claimant-paid costs. (LEWIS, WINOKUR, and JAY, JJ., CONCUR.)

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