Bacon v. Broward Employment & Training Admin., BL-38

• Decision Date: 29 January 1987
• Docket Number: No. BL-38,BL-38
• Citation: 12 Fla. L. Weekly 395,501 So.2d 724
• Parties: 12 Fla. L. Weekly 395 Ronnie BACON, Appellant, v. BROWARD EMPLOYMENT & TRAINING ADMINISTRATION and Michigan Mutual Insurance Co., Appellees.
• Court: Florida District Court of Appeals

Page 724

501 So.2d 724

12 Fla. L. Weekly 395

Ronnie BACON, Appellant, v. BROWARD EMPLOYMENT & TRAINING ADMINISTRATION and Michigan Mutual Insurance Co., Appellees.

No. BL-38.

District Court of Appeal of Florida First District.

Jan. 29, 1987.

David L. Kahn, Ft. Lauderdale, for appellant.

Albert P. Massey, III, of Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, Ft. Lauderdale, for appellees.

ZEHMER, Judge.

We review an order of the deputy commissioner which awarded, pursuant to section 440.34(3)(a), Florida Statutes (1981), an attorney's fee for claimant's successful prosecution of a claim for medical benefits only. Appellant complains that the $500 awarded for prosecution of the claim for evaluation and treatment at the eye clinic was so grossly unfair as to amount to an abuse of discretion. He also contends that the deputy erred in not awarding a fee for the successful prosecution of his claim for eyeglasses.

Appellees do not question the propriety of awarding a fee for prosecuting the claim for evaluation and treatment, and the record supports the deputy's decision to allow a fee for those services. The dollar amount of benefits obtained were minimal and, according to the deputy's order, would not exceed $2,000. In setting the award, the deputy undertook to evaluate each of the factors set forth in section 440.34(1), Florida Statutes (1981). Among other things, the deputy's order expressly found that "the time and labor required in prosecuting this matter has not been excessive and involves approximately 22 hours of the attorney's time." The deputy further found that "the experience and ability of Attorney Kahn is excellent" and that the fee "involved in this case is primarily contingent with no certainty of a fee being granted." Claimant presented testimony that a reasonable hourly rate would be $125 per hour and that a fee of $2,000 to $2,500 would be fair. The employer and carrier presented testimony by an attorney that a fee in the range of $500 to $600 would be reasonable, but the attorney based his opinion on the fact that the carrier had not strongly resisted the claim for benefits and that the eye clinic had only evaluated claimant and had not treated him. In setting the amount at $500 the deputy's order commented that "while this fee is minimal, it reflects the feeling of this Court that if there was any resistance to provision of the evaluation at Bascomb Palmer Eye Institute it was so minimal as to be almost non-existent," citing the decision in Celtics Mobile Home Mfg. v. Butler, 460 So.2d 486 (Fla. 1st DCA 1984).

The deputy commissioner's reliance on Celtics Mobile Home Mfg. v. Butler is misplaced because that decision involved the bad faith provisions in ...