Florida Statute 440.34 | Lawyer Caselaw & Research

The 2024 Florida Statutes

Title XXXI
LABOR

Chapter 440
WORKERS' COMPENSATION

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F.S. 440.34

440.34 Attorney’s fees; costs.—

(1) A fee, gratuity, or other consideration may not be paid for a claimant in connection with any proceedings arising under this chapter, unless approved by the judge of compensation claims or court having jurisdiction over such proceedings. Any attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. The judge of compensation claims shall not approve a compensation order, a joint stipulation for lump-sum settlement, a stipulation or agreement between a claimant and his or her attorney, or any other agreement related to benefits under this chapter which provides for an attorney’s fee in excess of the amount permitted by this section. The judge of compensation claims is not required to approve any retainer agreement between the claimant and his or her attorney. The retainer agreement as to fees and costs may not be for compensation in excess of the amount allowed under this subsection or subsection (7).

(2) In awarding a claimant’s attorney’s fee, the judge of compensation claims shall consider only those benefits secured by the attorney. An attorney is not entitled to attorney’s fees for representation in any issue that was ripe, due, and owing and that reasonably could have been addressed, but was not addressed, during the pendency of other issues for the same injury. The amount, statutory basis, and type of benefits obtained through legal representation shall be listed on all attorney’s fees awarded by the judge of compensation claims. For purposes of this section, the term “benefits secured” does not include future medical benefits to be provided on any date more than 5 years after the date the claim is filed. In the event an offer to settle an issue pending before a judge of compensation claims, including attorney’s fees as provided for in this section, is communicated in writing to the claimant or the claimant’s attorney at least 30 days prior to the trial date on such issue, for purposes of calculating the amount of attorney’s fees to be taxed against the employer or carrier, the term “benefits secured” shall be deemed to include only that amount awarded to the claimant above the amount specified in the offer to settle. If multiple issues are pending before the judge of compensation claims, said offer of settlement shall address each issue pending and shall state explicitly whether or not the offer on each issue is severable. The written offer shall also unequivocally state whether or not it includes medical witness fees and expenses and all other costs associated with the claim.

(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees. A claimant is responsible for the payment of her or his own attorney’s fees, except that a claimant is entitled to recover an attorney’s fee in an amount equal to the amount provided for in subsection (1) or subsection (7) from a carrier or employer:

(a) Against whom she or he successfully asserts a petition for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident;

(b) In any case in which the employer or carrier files a response to petition denying benefits with the Office of the Judges of Compensation Claims and the injured person has employed an attorney in the successful prosecution of the petition;

(c) In a proceeding in which a carrier or employer denies that an accident occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability; or

(d) In cases where the claimant successfully prevails in proceedings filed under s. 440.24 or s. 440.28.

Regardless of the date benefits were initially requested, attorney’s fees shall not attach under this subsection until 30 days after the date the carrier or employer, if self-insured, receives the petition.

(4) In such cases in which the claimant is responsible for the payment of her or his own attorney’s fees, such fees are a lien upon compensation payable to the claimant, notwithstanding s. 440.22.

(5) If any proceedings are had for review of any claim, award, or compensation order before any court, the court may award the injured employee or dependent an attorney’s fee to be paid by the employer or carrier, in its discretion, which shall be paid as the court may direct.

(6) A judge of compensation claims may not enter an order approving the contents of a retainer agreement that permits placing any portion of the employee’s compensation into an escrow account until benefits have been secured.

(7) If an attorney’s fee is owed under paragraph (3)(a), the judge of compensation claims may approve an alternative attorney’s fee not to exceed $1,500 only once per accident, based on a maximum hourly rate of $150 per hour, if the judge of compensation claims expressly finds that the attorney’s fee amount provided for in subsection (1), based on benefits secured, fails to fairly compensate the attorney for disputed medical-only claims as provided in paragraph (3)(a) and the circumstances of the particular case warrant such action.

History.—s. 34, ch. 17481, 1935; CGL 1936 Supp. 5966(34), 8135(11); s. 11, ch. 20672, 1941; ss. 17, 35, ch. 69-106; s. 365, ch. 71-136; s. 119, ch. 71-355; s. 18, ch. 75-209; s. 9, ch. 77-290; ss. 10, 23, ch. 78-300; ss. 27, 124, ch. 79-40; ss. 15, 21, ch. 79-312; s. 14, ch. 80-236; s. 12, ch. 83-305; s. 4, ch. 86-171; ss. 19, 43, ch. 89-289; ss. 29, 56, ch. 90-201; ss. 27, 52, ch. 91-1; s. 32, ch. 91-46; s. 3, ch. 91-47; s. 252, ch. 91-224; s. 34, ch. 93-415; s. 120, ch. 97-103; s. 21, ch. 2001-91; s. 13, ch. 2002-236; s. 26, ch. 2003-412; s. 1, ch. 2009-94.

F.S. 440.34 on Google Scholar

F.S. 440.34 on Casetext

Amendments to 440.34

Arrestable Offenses / Crimes under Fla. Stat. 440.34

Level: Degree
Misdemeanor/Felony: First/Second/Third

S440.34 - GRATUITY - REMOVED - M: S

Annotations, Discussions, Cases:

Cases Citing Statute 440.34

Total Results: 20

Palm Beach County School District v. Josaphat

Court: Fla. Dist. Ct. App. | Date Filed: 2024-06-12T00:00:00-07:00

Snippet: corresponding award of attorney’s fees and costs. See § 440.34(3), Fla. Stat. (allowing prevailing claimants to

American Airlines Group American Airlines and Sedgwick CMS v. Alejandro Lopez

Court: Fla. Dist. Ct. App. | Date Filed: 2024-05-22T00:00:00-07:00

Snippet: costs in a final order dated May 3, 2021. See § 440.34(1), Fla. Stat. (requiring JCC or court approval

Palm Beach County School District, and Sedgwick CMS, Inc. v. Frances Smith

Court: Fla. Dist. Ct. App. | Date Filed: 2024-05-22T00:00:00-07:00

Snippet: concluded that she could not award costs under section 440.34(3), Florida Statutes (2016), because the E/C did…proceedings, not to include attorney’s fees.” § 440.34(3), Fla. Stat. (2016) (emphasis supplied). The … purposes of entitlement to costs under section 440.34(3), a party can be “both prevailing and nonprevailing…the prevailing party costs provision in section 440.34(3) to several statutes allowing for prevailing …holdings in Aguilar and Kubik construing section 440.34(3) to allow a JCC to award prevailing party costs

Michael D. Rudolph v. Darien Smith, The Home Depot U.S.A., Inc. and Liberty Mutual Insurance Company

Court: Fla. Dist. Ct. App. | Date Filed: 2024-01-24T00:00:00-08:00

Snippet: the presumptively reasonable fee under section 440.34, Florida Statutes (1993), is $2,025,750. But it…considering the statutory factors set forth in section 440.34(1)(a)–(h), Florida Statutes, the JCC found that…the remaining amount of the benefits secured.” § 440.34(1), Fla. Stat. The JCC would then consider… (h) The contingency or certainty of a fee. 440.34(1)(a)–(h), Fla. Stat. (1993). Although the JCC

Raydel Coto v. Univision/Sentry Casualty Company

Court: Fla. Dist. Ct. App. | Date Filed: 2019-09-25T00:53:00-07:00

Snippet: nonetheless assessed $1,074.34 in costs under section 440.34(3), Florida Statutes, which says: “If any party…Court has held that an award of costs under section 440.34(3) is mandatory, even if manifestly unfair to the

Peter Portu v. City of Coral Gables, Johns Eastern etc.

Court: Fla. Dist. Ct. App. | Date Filed: 2018-04-18T00:53:00-07:00

Snippet: not preserve his claim for appeal. Section 440.34(3), Florida Statutes (2009), entitles a claimant

Portu v. City of Coral Gables, Johns E. Co.

Court: Fla. Dist. Ct. App. | Date Filed: 2018-04-18T00:00:00-07:00

Citation: 239 So. 3d 1295

Snippet: did not preserve his claim for appeal. Section 440.34(3), Florida Statutes (2009), entitles a claimant

Ivan Palma v. American Airlines and, Sedgwick CMS

Court: Fla. Dist. Ct. App. | Date Filed: 2017-11-15T00:00:00-08:00

Citation: 229 So. 3d 1272

Snippet: .2d 709, 710 (Fla. 1st DCA 2008); see generally § 440.34, Fla. Stat. (2013). Case law explains how to determine…attorney as is required for fee entitlement. See § 440.34(2), Fla. Stat. (2013). The JCC also implicitly …benefits as is required for cost entitlement. See § 440.34(3), Fla. Stat. (2013). But both of these findings

Leonardo Ernesto Gomez v. Frank Crum, Inc. and Broadspire

Court: Fla. Dist. Ct. App. | Date Filed: 2017-11-06T23:53:00-08:00

Snippet: statutory fee schedule as set out in subsection 440.34(1), Florida Statutes (2012), and requiring the

Leonardo Ernesto Gomez v. Frank Crum, Inc. and Broadspire

Court: Fla. Dist. Ct. App. | Date Filed: 2017-11-06T00:00:00-08:00

Citation: 228 So. 3d 735

Snippet: statutory fee schedule as set out in subsection 440.34(1), Florida Statutes (2012), and requiring the

Circle K Stores, Inc./ Constitution State etc. v. Emerita Flores-Orellana

Court: Fla. Dist. Ct. App. | Date Filed: 2017-08-27T00:53:00-07:00

Snippet: based on evidence outside of the record. See § 440.34(1), Florida Statutes (2009). AFFIRMED IN

Circle-K Stores, Inc. v. Flores-Orellana

Court: Fla. Dist. Ct. App. | Date Filed: 2017-08-21T00:00:00-07:00

Citation: 224 So. 3d 888, 2017 WL 3584066, 2017 Fla. App. LEXIS 11950

Snippet: based on evidence outside of the record. See § 440.34(1), Florida Statutes (2009). AFFIRMED IN PART;

Jose Delgado v. City Concrete Systems, Inc. and FCCI Insurance company

Court: Fla. Dist. Ct. App. | Date Filed: 2017-06-06T00:00:00-07:00

Citation: 220 So. 3d 529, 2017 WL 2438332, 2017 Fla. App. LEXIS 8148

Snippet: representing a statutory guideline fee under section 440.34(1), Florida Statutes. He also ordered the E/C to…court having jurisdiction over such proceedings.” § 440.34(1), Fla. Stat. Thus, the JCC here had both the …approve or disapprove an attorney’s fee under section 440,34(1). See also § 440.33(1), Fla, Stat. (describing

Ferrer v. Truly Nolen of America, Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 2017-03-20T00:00:00-07:00

Citation: 212 So. 3d 544, 2017 WL 1048109, 2017 Fla. App. LEXIS 3667

Snippet: guideline attorney’s fee as set forth in section 440.34(1), Florida Statutes (2010). On remand pursuant

Orestes J. Ferrer v. Truly Nolen of America, Inc. and Crawford etc.

Court: Fla. Dist. Ct. App. | Date Filed: 2017-03-19T00:53:00-07:00

Snippet: guideline attorney’s fee as set forth in section 440.34(1), Florida Statutes (2010). On remand pursuant

ICMfg & Associates, Inc. v. The Bare Board Group, Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 2017-03-17T00:53:00-07:00

Snippet: - $1,594,927, plus prejudgment interest of $80,440.34. In addition, the trial court ruled that BBG was

Govea v. Starboard Cruise Service, Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 2017-02-07T00:00:00-08:00

Citation: 212 So. 3d 466, 2017 WL 486957, 2017 Fla. App. LEXIS 1431

Snippet: motion for prevailing party costs under subsection 440.34(3), Florida Statutes (2011). Because we find no…reject the constitutional challenge to subsection 440.34(3) raised in Issue II, because Claimant failed

Vincent Sansone v. Frank Crum/Frank Winston Crum Insurance, Inc.

Court: Fla. Dist. Ct. App. | Date Filed: 2016-11-02T00:00:00-07:00

Citation: 201 So. 3d 1289, 2016 Fla. App. LEXIS 16230

Snippet: appeal is about attorney’s fees. Under section 440.34(3)(b), Florida Statutes (2014), successful claimants…thirty-day grace period, it is not liable under section 440.34(3)(b) for fees associated with those benefits. … Analysis Attorney’s fees under section 440.34(3)(b) require the “successful prosecution of the…days after the employer receives the petition. § .440.34, Fla. Stat.; see also Neville v. JC Penney…1st DCA 2008). Therefore, an award under section 440.34(3)(b) requires some part of the “successful prosecution

Rafael Cruz-Ramirez v. American Airlines and Sedgwick

Court: Fla. Dist. Ct. App. | Date Filed: 2016-10-04T00:00:00-07:00

Citation: 200 So. 3d 267, 2016 Fla. App. LEXIS 14748, 2016 WL 5802396

Snippet: evidence and evaluation of the variables of F.S. 440.34(1)(3)(7) above, I find that a reasonable fee to…PFB. As such, no fee entitlement attached. See § 440.34(2), Fla. Stat. (2009) (“In awarding a claimant’

Law Offices of William F. Souza v. Truly Nolen, Inc.,/ Crawford etc.

Court: Fla. Dist. Ct. App. | Date Filed: 2016-09-09T00:00:00-07:00

Citation: 199 So. 3d 531, 2016 Fla. App. LEXIS 13579

Snippet: pending, Souza withdrew a pending claim under section 440.34, Florida Statutes (2002), for attorney’s fees based