City of Miami v. Knight

• Decision Date: 28 November 1989
• Docket Number: No. 89-117,89-117
• Citation: 14 Fla. L. Weekly 2737,554 So.2d 549
• Parties: 14 Fla. L. Weekly 2737 CITY OF MIAMI, Appellant, v. James KNIGHT, Appellee.
• Court: Florida District Court of Appeals

Page 549

554 So.2d 549

14 Fla. L. Weekly 2737

CITY OF MIAMI, Appellant, v. James KNIGHT, Appellee.

No. 89-117.

District Court of Appeal of Florida First District.

Nov. 28, 1989.

Rehearing Denied Jan. 24, 1990.

Jorge L. Fernandez, City Atty., Martha D. Fornaris and Kathryn S. Pecko, Asst. City Attys., for appellant.

Mark L. Zientz, of Williams & Zientz, Miami, and Joseph C. Segor, Miami, for appellee.

WENTWORTH, Judge.

The self-insured employer seeks review of an amended workers' compensation order by which claimant was awarded an attorney's fee and costs. Appellant contends the judge of compensation claims (JCC) had no jurisdiction to award an attorney's fee because the issue was not reserved in the merits order. We affirm.

Claimant sustained an industrial injury in 1975 and was accepted by the employer as permanently totally disabled in 1980. Permanent total disability (PTD) benefits were commenced, and in 1981 the judge approved the parties' stipulation that claimant was "administratively accepted" as permanently totally disabled. PTD benefits were paid until the employer filed a "notice of suspension of compensation" in 1985, asserting that claimant had demonstrated an ability to work. The employer did not seek modification of the approved stipulation before suspending benefits, and its action was based on information that claimant had been working throughout the period of time for which the employer was paying compensation benefits.

Claimant filed a claim for resumption of his PTD benefits, and the employer filed a petition for modification, although continuing to maintain that modification was unnecessary. Claimant filed an amended claim which also sought additional retroactive PTD benefits, based upon the employer's offset of workers' compensation benefits against pension payments. Claimant also applied to the circuit court for a rule nisi to compel the employer to resume PTD benefits until a ruling on the petition for modification. The circuit court entered an order requiring such payment; the employer complied, and did not appeal the circuit court order.

Hearings were held and evidence presented before the JCC, and an order was entered granting the petition for modification. The JCC determined that claimant is no longer permanently totally disabled, and the modification was made effective as of the date of the JCC's order. However, the JCC awarded an additional workers' compensation payment, retroactive to 1980, in an amount determined by comparison of claimant's reduced pension and average weekly wage. The JCC's order was appealed and in City of Miami v. Knight, 510 So.2d 1069 (Fla. 1st DCA 1987), review denied 518 So.2d 1276 (Fla.1987), this court gave conclusive effect to the circuit court's determination in the rule nisi proceeding that the PTD benefits were being made "under a compensation order," and accordingly affirmed the JCC's establishment of the date of order as the effective time for modification. But we further determined that while the JCC had jurisdiction to consider an award of additional compensation for the pension offset, such offset was nevertheless permissible and did not constitute an invalid waiver of compensation benefits. In Knight, supra, we therefore reversed the JCC's award of additional compensation, and also determined that there was sufficient evidence to support the JCC's finding that claimant is no longer permanently totally disabled.

Claimant then applied to the JCC for an attorney's fee based upon the reinstatement of benefits prior to modification, suggesting that these benefits, including interest and the PTD supplement, be valued in excess of $25,000. The attorney also indicated that he had expended 81 hours on the case between March 1985 and July 1987, and requested a fee at the rate of $250 per hour. The employer's attorney argued that the JCC did not have jurisdiction to award an attorney's fee because the issue had not been reserved in the JCC's modification order. Counsel submitted a detailed time sheet, and the JCC entered an order awarding a fee.

In the fee order the JCC recited his consideration of Lee Engineering & Const. Co. v. Fellows, 209 So.2d 454 (Fla.1968), and section 440.34, Florida Statutes, as well as Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), stating that he "utilized the Federal Lode Stare" [sic] approach in determining entitlement to and the amount of the attorney's fee. However, the JCC thereafter detailed the specific Lee Engineering and 440.34 criteria, without any apparent application of the lodestar approach. The JCC determined that 81 hours of "productive time" had been expended by claimant's attorney, on novel and difficult issues. Suggesting that the complexity of the case warrants a greater fee, the JCC determined that the employer had acted in bad faith and awarded costs and a $16,200 fee "based upon 81 hours of legal time expended at $200 per hour." The employer sought rehearing and the JCC thereafter entered an amended order deleting the bad faith finding, but again awarding costs and a $16,200 fee.

Because claimant failed to obtain an explicit attorney's fee ruling from the JCC when the modification order was entered and then declined to pursue the issue on appeal, the claim could be deemed to have been waived insofar as the matter was matured and ripe for adjudication. We note also that concepts of res judicata and law of the case might apply to the extent that the modification order can be interpreted as denying the claim. But given the liberal interpretation afforded to chapter 440, the supreme court has indicated in a workers' compensation case that res judicata should not be applied where it will work an injustice. See deCancino v. Eastern Airlines Inc., 283 So.2d 97 (Fla.1973). Claimant suggests that the parties effectively agreed not to pursue the attorney's fee issue at the...