How many times can a claimant’s attorney get paid under the 20/15/10 statutory formula of Section 440.34?

Based on the recent case of Cortes-Martinez v. Palmetto Vegetable Co, (Case No. 1D14-1825 March 10, 2015), as many times as possible.  Judges in South Florida were interpreting Section 440.24 to mean that once benefits had been secured and a past due attorney fee was paid using the 20/15/10 formula, any future attorney’s fees should be limited to 10% of future benefits obtained.  In the Cortes-Martinez case, the JCC “reasoned that there can be only one $5,000 in benefits secured for which a 20% fee can be approved and only one $5,000 in benefits for which a 15% fee can be approved.”  The JCC went on to conclude that “[o]nce the threshold is reached in the life of the case, any additional fee would be limited to 10% of the benefits secured.”  The First District Court of Appeal reversed the ruling and interpreted Section 440.34 to have no limits in how many times the 20/15/10 formula can be used. One interesting thing about the case is that the First District Court included language in the opinion that the inability to obtain attorney’s fees raises constitutional issues.  With the cases pending in the Florida Supreme Court dealing with the constitutionality of attorney’s fees, this seems to be an issue being discussed frequently. Note that the opinion is not final until after period expires to file Motion for Rehearing.  For now, no more one time limit on the 20/15/10 formula.

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