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alertonimportantSummerJudiCialdeCiSionS
Workers’ Compensation Section
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legislative amendments in 2009 limiting temporary, total disability benefits to 104 weeks were unconstitutional, and the proper remedy was to revive the 1991 law, which provided a maximum of 260 weeks of temporary, total disability benefits. He noted that the Westphal decision did not address temporary partial disability limits, but he ruled that the law in 1991 which Westphal relied upon did not require that temporary total and temporary partial be combined before determining the 260-week maximum. Because only 159 weeks of temporary, total had been paid, and the Judge ruled that the claimant was eligible for up to 260 weeks of temporary, total indemnity benefits, additional TTD was due.
In the second case, in a very unusual fact pattern, and an unusual ruling, the First District Court of Appeal set aside a decision declining to approve a stipulation for an Employer / Carrier paid side fee of $ 60,308.72 and costs of $ 24,691.28. What was unusual is that earlier the same day, a settlement was submitted and approved for four dates of accident in the amount of $ 114,900 inclusive of a Claimant-paid fee of $ 12,240, which is the statutory guideline for a fee. The First District Court of Appeal ruled that a Judge of Compensation Claims has no jurisdiction at all over E / C paid Claimant costs, and, therefore, the Judge erred by not approving the costs( although F. S. 440.124( 2) says that a stipulation for fees and costs may be submitted for approval, and the rule goes on to say that if the amount of the fee is in excess of statutory guideline an affidavit of counsel must be submitted establishing the basis for approval of the fee). The First District also held that while the Judge has jurisdiction over the amount of the fee under an Employer / Carrier paid stipulation, he has no jurisdiction over the issue of entitlement unless there is
evidence of fraud, overreaching, misrepresentation, or some other basis that would void the agreement. What the First District did not say in its opinion is how the Judge is to determine the proper amount for the side fee to be paid by the Employer / Carrier when a statutory fee has already been paid on the settlement of the four cases. n
Author: Anthony Cortese – Anthony Cortese, Attorney at Law
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