City of Miami Beach v. Schiffman, 31556

• Decision Date: 14 September 1962
• Docket Number: No. 31556,31556
• Citation: 144 So.2d 799
• Court: Florida Supreme Court
• Parties: CITY OF MIAMI BEACH, a Florida Municipal Corporation, Petitioner, v. David SCHIFFMAN and Florida Industrial Commission, Respondents.

Page 799

144 So.2d 799

CITY OF MIAMI BEACH, a Florida Municipal Corporation, Petitioner, v. David SCHIFFMAN and Florida Industrial Commission, Respondents.

No. 31556.

Supreme Court of Florida.

Sept. 14, 1962.

Joseph A. Wanick and Milton Robbins, Miami Beach, for petitioner.

Steve M. Watkins of Truett & Watkins, Burnis T. Coleman and Patrick H. Mears, Tallahassee, for respondents.

O'CONNELL, Justice.

This cause was previously before this Court on motion by the respondent, the claimant David Schiffman, to quash the petition for writ of certiorari filed by his employer, the City of Miami Beach, in these workmen's compensation proceedings to review the order of the Industrial Commission. We granted the motion and on June 6, 1962 our order issued dismissing the petition. No opinion was written.

Petition for rehearing has now been filed by the petitioner, the City of Miami Beach. We find that the petition warrants consideration and that an opinion is in order.

Claimant suffered a compensable injury to his right wrist on February 23, 1958, for which his employer, hereinafter referred to as the City, paid compensation during temporary disability and furnished medical attention.

On June 17, 1960, the City's physician examined claimant and concluded he had a permanent partial disability of 5% to his wrist.

Claimant, upon being informed of the rating assigned by the City's physician, expressed dissatisfaction with the rating, whereupon the City sent him to a second physician for a rating. This doctor, an orthopedist, also rated the disability at 5% subsequent to his examination on August 9, 1960.

Claimant again expressed his dissatisfaction, but was told the 5% rating was the only basis on which the City would compensate him.

Claimant obtained an attorney, who filed a claim for him on August 19, 1960. This claim did not state the degree of disability which claimant thought was applicable but actually was for 'determination of percentage of permanent partial disability,' together with attorneys' fees, determination of maximum medical recovery, and further remedial treatment.

In effect the claim was for a rating in excess of 5%, for when the claim was filed it was manifest to both parties that the rating upon which compensation would otherwise be paid was a 5% disability to the wrist. We shall give such effect to the claim.

The City, as it had indicated it would prior to the filing of the claim, paid compensation on the basis of the 5% rating on September 8, 1960, a time within 21 days from the date of the claim.

On several occasions thereafter claimant's attorney contacted counsel for the City and requested either that the City increase the disability rating or at least send claimant to a physician of the City's choice for a re-evaluation of the degree of permanent partial disability.

These requests were refused and claimant's counsel was informed that if claimant were to go to a doctor of his own choosing and such doctor gave him a higher rating, the City would then decide whether or not it would accept the increased rating and assume the obligation of paying for the examination. Claimant's counsel was further informed that no doubt claimant could find many doctors who would give him a higher rating, but the City would not necessarily be convinced it should pay on the basis of such increased rating.

Claimant was examined by a physician of his own choice on October 19, 1960. This doctor reported to claimant's counsel on December 3, 1960 that the proper rating was 17%. On January 17, 1961 the report was sent to the City, together with the doctor's bill for his examination. Within 21 days thereafter, without further ado, the City paid the doctor's bill and paid claimant compensation in accordance with the increased rating.

On February 15, 1961 the Industrial Commission received a request for a hearing made by claimant's attorney, the reason therefor being the refusal of the City to pay claimant's attorney's fee.

A hearing was held thereon and the deputy ordered that the claim for an attorney's fee was granted 'for the reason that the employer * * * paid the employee's claim for an increased permanent disability after the expiration of 21 days from the date of filing' of the claim for compensation. He ordered payment of a $250.00 fee.

Upon review, the full commission affirmed and ordered the payment of a further $325.00 attorney's fee for the services rendered the claimant on the review.

The City then filed its petition for writ of certiorari with this Court to review the order of the commission. Questions raised therein were whether an award of attorneys' fees was improper in the absence of an award benefiting the claimant; whether the commission had authority upon its review to award a further fee; and whether the additional fee awarded was excessive.

To this petition the respondent-claimant filed his motion to quash. The motion was predicated upon the argument it was clear that an attorney's fee should be allowed under Section 440.34(1), F.S.A. because the City had failed to pay the claim within 21 days after it was made, and that the petition was therefore without merit.

As has been noted, this Court entered its order granting the motion and quashing the petition for writ of certiorari.

In its petition for rehearing directed to this order, the City argues that the effect thereof was to grant an attorney's fee in these workmen's compensation proceedings despite the absence of an award of any other benefits for the claimant, contrary to our decision in Virginian, Inc. v. Ponder, Fla.1954, 72 So.2d 781, as clarified in Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Jones, Fla.1961, 134 So.2d 244.

In Virginian, 72 So.2d 781, supra, at p. 783, we said 'an award of compensation shall be a prerequisite to an award of attorney's fees.'

At approximately the same time this Court rendered its decision in Virginian, it released its opinion in Lockett v. Smith, Fla.1954, 72 So.2d 817. It seems manifest from that opinion that this Court was of the view that an award of compensation was a prerequisite to an award of an attorney's fee. It was questioned whether the deputy's award had been one of compensation or of a penalty. This Court in holding that it was an award of 'compensation' in effect ruled no award of an attorney's fee was warranted unless the award be taken as one for 'compensation.' Actually, it held that the award warranted a further award of attorney's fees even though it was an award of a penalty rather than one for disability compensation.

Subsequently, this Court has further broadened its construction of the word 'compensation' as related to the statute, Section 440.34(1).

In Ringling Bros., 134 So.2d 244, supra, 'compensation' was construed to include the payment of medical benefits. We concluded that an award of attorneys' fees was proper when there had been an award benefiting the claimant. Our position therein is substantiated by the statute, Section 440.34(1), which reads as follows:

'(1) If the employer or carrier shall file notice of controversy as provided in § 440.20 * * *, or shall decline to pay a claim on or before the twenty-first day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation, and the injured person shall have employed an attorney at law in the successful prosecution of his claim, there shall, in addition to the award for compensation be awarded reasonable attorneys fee, to be approved by the commission * * *.' (Emphasis added.)

In Virginian, it would appear, this Court's opinion turned upon that portion of the statute which reads, '* * * there shall, in addition to the award for compensation be awarded reasonable attorneys fee * * *.' (Emphasis ours.)

The views expressed in Ringling Bros. are more recent and more fully reflect the intent and purposes of the Workmen's Compensation Act.

We have on numerous occasions discussed the purpose of the Act and stated our reasons for interpreting it liberally in favor of claimants thereunder.

A liberal, reasonable and logical construction will not permit a holding which denied award of attorneys' fees to a claimant under the facts of this case. Where it is shown that the employer did not, within 21 days of the filing of the claim, voluntarily pay the benefits which it ultimately voluntarily agreed to pay; claimant obtained the services of an attorney; and that the services of the attorney were related to and necessary in obtaining benefits or increased benefits for the claimant, he ought to receive an award for such fees. Otherwise, an employer could always initially controvert a claim but then before the entry of an order for compensation settle the claim or pay claimant what he sought, without being responsible for fees for services of the claimant's attorney rendered to that point.

In the case before us, if the Deputy had taken note of the voluntary payment of increased benefits and merely ordered that compensation be paid on this basis, then his order would have been transformed into an order awarding benefits and no question could have been raised as to the award of the fees. Under the facts of this case, the Deputy's failure to include that otherwise unnecessary provision in his order should not be allowed to defeat an otherwise valid claim for attorneys' fees.

The statute provides for an award of attorneys' fees where the claimant is successful, i. e., where the employer 'shall otherwise resist unsuccessfully the payment of compensation,' subject however to the limitations noted below.

In ...