Barr v. Pantry Pride, BQ-447

Citation13 Fla. L. Weekly 35,518 So.2d 1309
Decision Date21 December 1987
Docket NumberNo. BQ-447,BQ-447
Parties13 Fla. L. Weekly 35 Patricia Martin BARR, Appellant, v. PANTRY PRIDE, Crawford and Company, and Division of Workers' Compensation, Appellees.
CourtCourt of Appeal of Florida (US)

Richard A. Sicking of Kaplan, Sicking & Bloom, P.A., Miami, for appellant.

Karen M. Gilmartin of Adams, Kelley & Kronenberg, Miami, for appellees.

WIGGINTON, Judge.

Claimant appeals from the order of the chief commissioner awarding as a reasonable attorney's fee the sum of $2,400. Because claimant is of the opinion that she is due attorney's fees in the amount of $28,614.46 based on benefits obtained, she takes issue with the award. Specifically, claimant maintains that the chief commissioner (1) erred in failing to consider the 185 hours of work allegedly expended by her attorney; (2) erred in failing to award the statutory guideline fee of $28,614.46; (3) erred in holding that a September 1980 signed stipulation was not binding on the carrier; and (4) erred in failing to award fees for the three and one-half hours of preparation for, and attendance at, the hearing to collect attorney's fees. We affirm in part and reverse in part.

Claimant suffered a compensable back injury on January 6, 1975. She was paid temporary total disability benefits at a compensation rate of $87.26 per week until May 22, 1975, when the carrier accepted an 8 percent permanent partial disability rating retroactive to May 15, for twenty-eight weeks at the same compensation rate. Accordingly, payment of permanent partial disability benefits terminated on November 26, 1975.

On April 4, 1975, claimant hired attorney Sicking to represent her, and on April 7 filed a claim, hearing thereon being set for April 2, 1976. However, on January 5, 1976, Mr. Sicking and the carrier's adjuster reached an agreement whereby the carrier reclassified claimant's previous permanency to temporary total disability and reinstituted payment of compensation for those benefits. The carrier thereafter sent out checks for four weeks of back payments.

On August 15, 1977, the carrier concluded that maximum medical improvement had been reached physically as of January 18, 1977, when claimant was rated by a former physician as having a 20 percent permanent impairment of the body, and that MMI had been reached psychologically on August 9, 1977, when claimant was rated by a psychologist as having a 5 percent permanent impairment. Those ratings were translated to a 24 percent impairment of the body as a whole, entitling claimant to eighty-four weeks of permanent partial disability benefits. The carrier paid those benefits less the twenty-eight weeks previously paid (despite the fact that the carrier had previously reclassified those twenty-eight weeks as temporary total disability), and compensation was suspended on September 25, 1978. Accordingly, on October 2, 1978, Mr. Sicking filed a claim "for all compensation benefits to which she may be entitled pursuant to F.S. 440," including permanent total disability benefits.

The claim notwithstanding, at an August 31, 1978 conference, the parties reached an agreement on medical bills whereby the employer/carrier were to pay $3,135. Moreover, on August 14, 1979, the parties agreed to adjust claimant's average weekly wage to $157, resulting in an increase of $6.94 per week in her compensation rate.

Returning to the October 1978 claim, on November 13, 1979, a pretrial stipulation was entered into by the attorneys for both sides, with claim being made for temporary total or temporary partial disability benefits from May 14, 1975 to December 9, 1975, and from August 8, 1977 and continuing for permanent total disability benefits; and for medical care by Dr. Goldberg and Dr. Radin. The E/C defended on the grounds that claimant had received all benefits to which she was entitled, and that any disability in excess of 24 percent of the body was not causally related to the accident.

On July 11, 1980, Deputy Commissioner Trask entered an order finding that claimant had not reached maximum medical improvement; that she required psychiatric care related to her injury, to be provided by Dr. Radin; that she would require palliative care indefinitely; and that apportionment did not apply. The E/C was ordered to reclassify all past permanency to temporary total disability and to pay TTD benefits from January 12, 1975, through the date of the order and continuing until claimant was no longer temporarily and totally disabled, with the E/C being entitled to credit for the compensation actually paid during that period. Claimant was also found to be entitled to a reasonable attorney's fee to be paid by the E/C with jurisdiction reserved to determine the amount. Thereafter, on July 25 the carriers paid claimant the amount due under the order and reclassified her previous payments to TTD benefits, but also took a social security offset reducing the weekly rate to $43.91.

In response, on August 25, 1980, Mr. Sicking wrote to the carrier informing it that the social security offset was calculated incorrectly and that it had failed to pay interest, as well as enclosing the bill of Dr. Radin with demand for payment. Request was also made for an "interim attorney's fee" of $2,066. In his letter, Mr. Sicking considered the fee to be interim since "we know what the past compensation is, but we have no way of knowing what the future compensation will be, nor what the bill of Dr. Radin will be...." Thus, the $2,066.54 fee ultimately paid was calculated on the basis of the benefits received through July 25, 1980, as awarded by the order. Mr. Sicking also stated in the letter that he would prepare the necessary stipulation to that effect.

In response, the carrier filed a form conceding counsel's demands as to the corrected amount of social security offset and that the weekly rate should be $62.07. Thereafter, the carrier wrote to Mr. Sicking, paying interest of $544.81 and $671.92 to correct the social security offset to date. Also included was the check for $2,066.54, inscribed as a fee for interim attorney's fees through July 25, 1980, "per Stipulation." In that same letter, the adjuster requested Mr. Sicking to draw a stipulation for interim attorney's fees.

In reply, counsel sent a letter to the carrier enclosing a stipulation on fees and stating that interest would have to be recalculated. The stipulation indicated it was understood that future attorney's fees would "be based on the compensation benefits paid subsequent to July 25, 1980, and also on medical benefits awarded before and after July 25, 1980," and also provided that the parties were petitioning the deputy commissioner to approve the stipulation. Nonetheless, the stipulation was never presented to, nor approved by, the deputy.

On April 29, 1981, the E/C de-authorized claimant's treating physician, Dr. Goldberg, and offered no alternative care. Approximately one year later, on March 29, 1982, the carrier sent a memo to Mr. Sicking regarding alleged misdated checks, referring to them as payment of "P.T.D. benefits" for March and April.

Thereafter, on April 2, 1982, Deputy Commissioner Trask, following a hearing, entered an order finding the E/C improperly de-authorized Dr. Goldberg and directing them to pay the bills for treatment rendered by Dr. Goldberg following his de-authorization, together with prescriptions and transportation to receive such treatment, and to furnish palliative care under his direction in the future. The deputy also found that the E/C owed claimant's attorney a fee, and jurisdiction was reserved to determine the amount. At this point it should be noted that other than the $2,066.54 paid as the "interim" fee, no hearing had been held determining a fee based on the July 11, 1980 order.

On August 18, 1982, the carrier accepted claimant as being permanently and totally disabled.

Finally, on June 23, 1986, Mr. Sicking filed a claim for attorney's fees and costs. At the hearing on the claim, without producing time sheets, Mr. Sicking testified that he had expended 185 hours of work over the past eleven years. An additional fee was also requested for the three and one-half hours spent in preparation for and attendance at the fee hearing. Based on the hours expended, at an asserted reasonable hourly rate of $150, Mr. Sicking represented that his fee would amount to $27,750.

In the alternative, a fee was sought based on the statutory guideline fee formula in section 440.34(1), Florida Statutes (1985), 1 by determining the monetary value of all benefits achieved by Mr. Sicking over the course of claimant's estimated life expectancy reduced to present value. To that end, Mr. Sicking considered not only all of the temporary total disability benefits achieved, but claimed a right to fees based on the permanent total disability benefits subsequently paid by the E/C, which benefits total $113,888.98.

Additionally, counsel included in the benefits the adjustment of the incorrect compensation rate of $6.94 for every week after June 6, 1975, to the date of the hearing, and added to that the present value of the future adjustment, totaling $10,547.44. Similarly, regarding the adjustment of the incorrect social security offset, Mr. Sicking figured every week from July 25, 1980, until claimant reaches the age of sixty-two, arriving at a total of $13,936.88, plus $544.81 in interest on that correction.

Finally, in figuring medical benefits, Mr. Sicking took into account the medical bills paid per the August 31, 1978 agreement of $3,135; the medical bills of Dr. Goldberg per the April 2, 1982 order of $1,377, plus prescriptions and mileage of $9,299.19; medical care per "memo of 8/12/81" of $4,988; as well as the present value of future medical care by Dr. Goldberg based on past rates of $200 per year, plus an estimated $1,500 per year for prescriptions and mileage, totaling $27,450.

Thus, based on the above calculation...

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