With the Florida Supreme Court having agreed in Castellanos v. Next Door Co. to consider constitutional and related legal challenges to the statutory regime which governs the payment of Claimant attorney fees in workers compensation cases, and with the outcome of the case threatening to alter the landscape of workers compensation litigation for decades to come, the eyes of the Florida workers compensation community are intently trained on the evolving arguments being raised through the initial briefing process.   The following synopsis will provide an overview of the arguments which have thus far been raised by the Petitioner, as well as the Amicus Curiae backing the Petitioner, in opposition to the formulaic methodology established by Florida Statute Section 440.34 for the determination of an injured worker's (i.e. Claimant’s) attorney fees.  The Respondent in the case has yet to file its Initial Brief.
The Castellanos case arises out of an attorney fee award of $164.54, calculated in strict accordance with Section 440.34 which constrained the Judge of Compensation Claims to a fee award which was predicated upon application of the 440.34 statutory formula to the $822.70 value of benefits secured by the Claimant's attorney.   When viewed in the context of the 107.2 hours of time expended (reasonably as determined by the JCC) by the Claimant’s attorney in complex litigation to secure the benefits, the award amounted to compensation at the rate of $1.53 per hour.   
In addition to the parties (Petitioner and Respondent) to the case, seven advocacy groups have petitioned the Court to join the litigation in the capacity of Amicus Curiae, all promoting the cause of the Petitioner, Marvin Castellanos.  The Petitioner's Initial Brief to the Court was filed April 8.   Initial Briefs filed by four of the Amicus have followed.   A summary of the arguments advanced in the Initial Briefs follows:  
April 8, 2014 Initial Brief by Petitioner
The Petitioner's Initial Brief sets out five distinct legal challenges:
   1.    Section 440.34 violates the separation of powers doctrine and fundamental due process rights by establishing a compulsory mathematical formula for the determination of attorney fees, thus violating Florida Bar Rule 4-1.5 which invests judges with the authority to make discretionary determinations regarding the quantum of attorney fees which are deserving in any particular case.  
   2.    The statutory divestment of judicial discretion to award anything but a formulaically-determined fee results in a taking of property without due process by virtue of it being confiscatory of the right of Claimant attorneys to be adequately compensated.
   3.    The mandatory statutory formula results in a violation of equal protection principles by establishing a system where the ability of an injured worker to compensate his or her attorney is strictly conscribed yet the ability of the Employer to compensate its attorney is unlimited.
   4.    The statute violates the ability to contract and speak freely by depriving the injured worker of the ability to enter into a contract for the provision of legal services at an agreed-upon rate.
   5.    The statute violates the state Constitution's guarantee of access to courts by prohibiting the award of "reasonable" attorney fees, in contravention of the 1967 Act which established the legislative and legal framework for the workers compensation system.
April 11 Initial Brief by the Florida Justice Association
This Brief advances two principal arguments:
   1.    The statutory formula violates established case law precedent and the separation of powers doctrine of the Florida Constitution by causing a confiscation of attorney time, energy, and talents.
   2.    The statute violates the separation of powers doctrine by allowing the legislature to infringe upon the judiciary's inherent authority to oversee and regulate attorney fees, as well as the practice of law in general.
April 17 Initial Brief of the Workers Compensation Section of the Florida Bar
Four arguments are presented in the Section's Brief as follows:
   1.    The statutory formula for determining attorney fees unduly restricts the ability of Judges of Compensation Claims to discharge the duties of their office.
   2.    The statutory formula unjustly impedes access to the courts and the ability of injured workers to obtain legal representation.
   3.    The statute improperly singles out one class of litigant for disparate treatment under the law by imposing limitations on the contract rights of one party but not the other.
   4.    The statute unjustly impedes the administration of justice in Florida.
April 21 Initial Brief by Voices, Inc.
This Brief raises a single argument asserting that the restriction of attorney fees under 440.34 to those which derive from application of an inflexible formula to the value of benefits secured results in a denial of the injured worker's right to equal protection under the laws of Florida.
April 22 Initial Brief by the Fraternal Order of Police
This Brief advances the following two arguments:
   1.    By making attorney fee restrictions under 440.34 applicable to only one party, the statute violates the Florida Constitution by eliminating a right established by the vote of Florida's citizens in the 1968 Declaration of Rights, thereby hindering the ability of injured workers to obtain legal representation due to an inability to pay counsel a reasonable fee and resulting in an abridgment of civil rights historically available to injured workers.
   2.    The statute violates First Amendment guarantees of freedom of speech as it prohibits injured workers from retaining counsel for a reasonable sum, thus resulting in a system which unconstitutionally favors the speech of the employer (which is free to pay its legal representatives any sum it wishes) over that of the injured worker (who is limited in compensating his or her legal counsel by the confines of 440.34).
The abbreviated summaries presented above cannot capture the nuance and breadth inherent to each of the legal arguments set forth in the various parties' Briefs.  They do, however, encapsulate the issues the Justices at the Court will wrestle with once the briefing and oral argument process is complete.   For a more expansive explanation of the arguments presented in the Briefs discussed above, please contact Jerry McKim at jmckim@wylandtadros.com.