Bednarik v. Ebasco Services, 87-1117

• Decision Date: 01 June 1988
• Docket Number: No. 87-1117,87-1117
• Citation: 13 Fla. L. Weekly 1320,527 So.2d 251
• Parties: 13 Fla. L. Weekly 1320 James BEDNARIK, Appellant, v. EBASCO SERVICES and Florida Power and Light Company, Appellees.
• Court: Florida District Court of Appeals

Page 251

527 So.2d 251

13 Fla. L. Weekly 1320

James BEDNARIK, Appellant, v. EBASCO SERVICES and Florida Power and Light Company, Appellees.

No. 87-1117.

District Court of Appeal of Florida First District.

June 1, 1988.

J. Michael Brennan, Ft. Pierce, for appellant.

Gary L. Stump of Whittaker, Stump & Webster, Orlando, for appellees.

MILLS, Judge.

James Bednarik appeals from the denial by the deputy commissioner of his claim for attorney's fees pursuant to Section 440.30, Florida Statutes. We reverse.

On 21 June 1983, Bednarik filed a claim for benefits based on a 1981 accident. The claim sought temporary total or temporary partial benefits from 2 May 1983 to maximum medical improvement (MMI) as determined, wage-loss after MMI, a change of physician, rehabilitation benefits, bad faith attorney's fees and "both past and continuing benefits in any benefit category which is in default at the time of the filing of the claim in this matter."

A hearing was set on this claim for 20 December 1983. On 12 March 1984, the parties filed a "stipulation for cancellation of hearing" requesting that the 20 December hearing be cancelled "inasmuch as the matters scheduled to be heard at that time have been resolved by the parties". The deputy entered her order on 21 March 1984, stating that "based on the foregoing stipulation, the hearing is hereby cancelled."

On 27 March 1984, Bednarik filed a claim for additional TTD or TPD benefits from 28 April 1983 to 30 November 1983, bad faith fees, and "both past and continuing benefits in any benefit category which is in default at the time of the filing of the claim in this matter." A hearing was set for 24 September 1984, but a second stipulation for cancellation of hearing was filed on 30 September. It requested cancellation "as all issues have been amicably resolved between the parties" (emphasis supplied). The deputy entered her order on 3 October 1984 cancelling the hearing "as all issues have been amicably resolved by the parties."

In December 1985 and January 1986, the E/C noticed and held depositions of Bednarik's physician and Bednarik, respectively. Bednarik's attorney attended on his behalf. Based on this attendance, the claim for the fee pursuant to § 440.30 was filed (if no claim has been filed, then the carrier or employer taking a deposition shall pay the claimant's attorney a reasonable attorney's fee for attending such deposition). Hearings on the claim were held on 25 June and 1 July 1987, consisting primarily of legal arguments by counsel as to the pendency or not of the 1983 and 1984 claims. Testimony was received from the E/C's worker's compensation adjuster that TTD benefits were paid Bednarik from 3 October 1984 (the date on which the order accepting the stipulation of cancellation was entered) through December 1985 and that wage-loss benefits were paid January through March...