castellanos v next door

Florida’s workers’ compensation system, outlined in Chapter 440 of Florida’s statutes, allows four different types of wage loss benefits divided into two categories. The categories are temporary and permanent indemnity benefits.

There are two types of temporary indemnity benefits, Temporary Total Disability (TTD) and Temporary Partial Disability (TPD). Section 440.15(2)(a) describes TTD as being a “disability total in quality but temporary in quality….,” while TPD, described in section 440.15(4)(a), is the monetary benefit paid when the person’s disability is less than total, meaning the injured employee is capable of performing some type of physical work activity.

TTD is paid at 2/3 of the injured employee’s average weekly wage (AWW), while TPD is “80 percent of the difference between 80 percent of the employee’s average weekly wage and the salary, wages, and other remuneration the employee is able to earn postinjury….” For example, if AWW is $1,000, the TTD and TPD payments are $666.70 and $640.00, respectively. The good news is that workers’ compensation indemnity benefits are not taxable.

Temporary indemnity benefits end once the injured employee is placed at maximum medical improvement (MMI), defined in 440.02(2): (10) as follows: “‘Date of maximum medical improvement’ means the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” (Temporary benefits also end as a matter of law after 260 weeks of payments. Typically, MMI is reached well before 260 weeks, or 5 years, of temporary payments are made.)

Fights often ensue over disability status, partial and total, and MMI. Because the insurance carriers get to select the treating doctors, those handpicked doctors typically offer opinions that are helpful to the carriers. While there are ways to fight back, the options are limited by the system’s decided slant in favor of employers and carriers on these legal points.

For as long as our law firm has been handling Florida workers’ compensation cases, the amount injured workers’ attorneys may receive as a fee has always been a hot topic. The two main factors driving the conversation are the injured workers’ share of a recovery, typically through a settlement, and limiting litigation. While the Florida Legislature pays lip service to the first factor, the second factor is the actual driving force.

Since 1998, when Republicans, with the election of Jeb Bush as governor, took full total control of the lawmaking process in Florida, the workers’ compensation laws have been tailored to make it difficult for lawyers representing injured workers (a/k/a “claimants”) to earn a sustainable income. The stated policy of the laws has been couched as promoting a greater share of recovered proceeds allocated to claimants instead of attorneys’ fees, but the silent truth is to make it difficult for claimants to hire lawyers willing and able to fight toe-to-toe against employers and their workers’ compensation insurance carriers. Bottom line: There is nothing Big Business hates more than pipsqueaks, i.e., injured workers, being able to challenge them on a level playing field. They want the field tilted in their favor.

The most famous example of this blatant abuse came to a head in Castellanos v. Next Door Company, 192 So.3d 431 (Fla. 2016). Marvin Castellanos was injured while working with Next Door Company. With the help of an attorney, Castellanos prevailed in his workers’ compensation claim, after the attorney successfully refuted numerous defenses raised by the employer and its insurance carrier. However, because the statute then in effect limited his ability to recover attorney’s fees to a sliding scale based on the amount of workers’ compensation benefits obtained, the fee awarded to Castellanos’ successful attorney amounted to only $1.53 per hour for 107.2 hours of work.

The Florida Supreme Court found the statute, which essentially became effective in 2003, unconstitutional. It understood that the statute was designed to make it difficult for injured workers to engage competent legal counsel. Citing Davis v. Keeto, Inc., 463 So. 2d 368 (Fla. 1st DCA 1985) (quoting Neylon v. Ford Motor Co., 99 A.2d 664, 665 (N.J. Super. Ct. App. Div. 1953)) the court noted that a claimant proceeding “without the aid of competent counsel” would be as “helpless as a turtle on its back.” At 371.

Articles Tagged with castellanos v next door

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