Kauffman Decided; 1st DCA Rejects Constitutional Arguments

Wednesday, April 13, 2011 | 0

By Michael Rabinowitz
Banker Lopez Gassler

In a sparsely written, four-page order (the listing of the attorneys involved in the case seems longer than the actual opinion), the Florida 1st District Court of Appeal affirmed the judge of compensation claim's opinion, thereby rejecting the claimant bar’s arguments that the July 1, 2009 changes to the fee statute are unconstitutional.

First, the opinion, Kauffman v. Community Inclusions, has no legal analysis at all. The court does reject the rather weak argument that Section 440.34 requires Judges to “award” fees, therefore the strict statutory fee scheme is unconstitutional since under the new law the judges only now “approve” of fees. I was never impressed with this argument since the judges still have the power to award fees. The problem for claimants has never been the award but the amount.

Second, the court rejects the constitutional arguments of equal protection, due process and access to courts. But, it does this rather cursory. All the court does is confirm that while Emma Murray rejected the 1st DCA’s previous rulings regarding statutory construction of Section 440.34, the Supreme Court never addressed the constitutional arguments in Murray. Therefore, the 1st DCA’s prior opinions–that 440.34 does not violate the US Constitution–stands.

Beyond that ruling, the 1st DCA does not re-address those specific rulings. I mean, I am all for brevity, but it is odd that the court does not even describe its ruling. Granted, they expounded on this issue in prior rulings, but isn’t this issue important enough that it reiteration is appropriate.

Specifically, the court never addresses the appropriateness of the Legislature completely deleting the word “reasonable” from the statute. Are they now saying the unreasonable fees are ok? This is an issue that should be explored.

The 1st DCA did not certify the case to the Florida Supreme Court. But, I wonder if the Claimant’s bar motion the First DCA for certification would the Court grant it? From the opinion it looks like they might.

If you want to view my previous entries on the Kauffman case check them out here and here.

WorkCompCentral subscribers may read the opinion by clicking on the case title in the sidebar.

Michael Rabinowitz is a defense attorney for the Banker Lopez Gassler firm in Tampa. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com/