Yeimis Banegas v. ACR Environmental, inc and Berkley etc.

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
YEIMIS BANEGAS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D17-1251
ACR ENVIRONMENTAL, INC.,
and BERKLEY SPECIALTY
UNDERWRITING MANAGERS,
Appellees.
_____________________________/
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.
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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