Florida Law Weekly - Rissman, Barrett, Hurt, Donahue & McLain, PA

The First DCA made a detailed analysis of the various
constitutional arguments raised by the claimant’s attorney
and concluded that, in narrow circumstances, a claimant can
hire an attorney in a workers compensation case without
regard to the limitations of Florida Statute Section
440.34. Specifically, the First DCA concluded that the
claimant’s prohibition from retaining counsel to defense a
Motion to Tax Costs against him, infringes upon the
claimant’s constitutional rights under the First Amendment
of the Constitution. Accordingly, as applied specifically
to this case, Florida Statute Section 440.34 and
440.105(3)(c) are unconstitutional. The JCC’s order was
reversed and remanded for a new hearing on the Motion to
Tax Costs and Motion to Approve a Retainer. On remand, the
JCC has the authority to determine whether the proposed fee
is reasonable.
In Judge Wetherell’s concurring opinion he agrees that
Section 440.105(3)(c) and 440.34 are unconstitutional as
applied to these facts because the statutes had the effect
of precluding the claimant from contracting with an
attorney to defend the action brought by the
Employer/Carrier to tax its prevailing party costs against
the claimant pursuant to Section 440.34(3). However, Judge
Wetherell does not find these statutes to be
unconstitutional in other circumstances.