Colvin v. State Dept. of Transp., 45091

• Decision Date: 12 March 1975
• Docket Number: No. 45091,45091
• Citation: 311 So.2d 366
• Parties: Cary COLVIN, Petitioner, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION (Self-Insured) and the Florida Department of Commerce, Industrial Relations Commission, Respondent.
• Court: Florida Supreme Court

Page 366

311 So.2d 366

Cary COLVIN, Petitioner, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION (Self-Insured) and the Florida Department of Commerce, Industrial Relations Commission, Respondent.

No. 45091.

Supreme Court of Florida.

March 12, 1975.

Rehearing Denied May 14, 1975.

Vincent A. Lloyd, Law Offices of C. R. McDonald, Jr., and Charles A. Sullivan, Fort Pierce, for petitioner.

John L. Pearce, Tallahassee, for the State of Florida Dept. of Transportation, respondent.

DEKLE, Justice.

This cause brings for review by certiorari an order of the Florida Industrial Relations Commission reversing a decision of the Judge of Industrial Claims awarding $8,000 in attorney's fees to the claimant's attorney, Charles A. Sullivan. We granted certiorari with oral argument. F.A.R. 3.10(e).

The sole issue for our determination is whether or not the claimant's attorney, Charles A. Sullivan, was entitled to an attorney's fee for his representation on behalf of the claimant and in the event an attorney's fee is found to be due, whether the award by the Judge of Industrial Claims was proper. The claimant was awarded permanent total disability as a result of an industrial accident January 12, 1971. The employer concededly paid temporary disability, medical expenses and a 15% Permanent total rating voluntairly and timely. The employer later accepted the claimant as being permanently totally disabled on September 27, 1972. It is contended that the employer did not timely accept a permanent total disability rating ¹ which upon successful prosecution entitled claimant's attorney to a reasonable fee.

The JIC awarded attorney's fees based on obtaining permanent total disability rating instead of the 15% Permanent rating earlier by employer, specifically finding that employer was aware claimant might have total disability. The JIC found that employer did not timely accept permanent disability and that information upon which employer based its later determination was the work product of claimant's attorney.

Reversing the JIC, the Commission held that it was apparent that there never had been any question whether employer accepted liability and further that on September 26, 1972, claimant's attorney offered to settle, which employer declined, instead accepting permanent total disability the next day. The IRC concluded that there was no competent substantial evidence to sustain the finding that attainment of the total disability award was the work product of claimant's attorney, stating that no treating physician had expressly so rated claimant, although the later prognosis of the psychiatrist, Dr. David Tingle, in letter of September 7, 1972, obtained by claimant's attorney stated: 'I am somewhat gloomy as to a psychiatric 'cure' in this man . . .' and that only 'electric shock treatment' remained as a possibility. The IRC does not mention employer's concession in its letter to claimant's attorney of September 27, 1972, accepting permanent total, that: 'We received photostatic copies of Dr. David Tingle's 100% Disability rating dated September 11, 1972, showing a maximum recovery date of September 8, 1972.' The IRC noted that the employer recommended treatment by a psychiatrist in order to determine the extent of disability (although this was after meeting with claimant's attorney) and concluded that attainment of a permanent total rating was as much the work product of employer's counsel as claimant's. Accordingly, the JIC's order was reversed and the claim for attorney's fees was dismissed.

Before dealing with the substantive issue, it is appropriate that we consider the application of our relatively recent standard for review of IRC cases on the basis of traditional certiorari rather than appellate review as expressed in Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla.1974), wherein we stated that the review of IRC cases would hereafter be upon traditional certiorari grounds based on a failure to conform to the essential requirements of law below, either by the IRC in its appellate review or the actions of the JIC as reviewed by the IRC.

Where the IRC is placed on the level of an 'appellate court' in the review of JIC actions, as it has been by our holding in Scholastic Systems, it follows as with DCA appeals that the actions of the 'trial court' (JIC) arrive in the appellate court (IRC) with a presumption of correctness. JIC findings and awards or denial thereof can be overthrown only if not well founded under applicable legal principles, which would include a misapplication of applicable law, or upon a showing of a lack of competent evidence to support the findings or the ruling of the trial judge. IRC affirmance when there is such a lack of evidence, or reversal where the evidence is in fact sufficient, would constitute a 'departure from the essential requirements of law' which would vest jurisdiction for certiorari in the Supreme Court. It is upon the latter basis that this review has been granted.

The IRC, like the DCA, cannot be permitted to substitute its judgment on matters of discretion where there is sufficient proof in the record to support the trial judge's findings and rulings, even though the appellate view of the matter might have been different had the IRC been in the position of the trial judge. ² Applying this rule to the present case, it is apparent that the IRC has fallen into that temptation which has in the past befallen appellate courts, of substituting its 'better judgment' for that of the 'errant trial judge' which is not permitted. ³

It is understandable that an adjustment to...