Fumigation Dept. v. Pearson

• Citation: 14 Fla. L. Weekly 2092,559 So.2d 587
• Decision Date: 06 September 1989
• Docket Number: No. 88-3070,88-3070
• Parties: 14 Fla. L. Weekly 2092, 15 Fla. L. Weekly D1160 FUMIGATION DEPARTMENT and Claims Center, Appellants/Cross-Appellees, v. Wade PEARSON, Appellee/Cross-Appellant.
• Court: Court of Appeal of Florida (US)

Page 587

559 So.2d 587

14 Fla. L. Weekly 2092, 15 Fla. L. Weekly D1160

FUMIGATION DEPARTMENT and Claims Center, Appellants/Cross-Appellees, v. Wade PEARSON, Appellee/Cross-Appellant.

No. 88-3070.

District Court of Appeal of Florida,

First District.

Sept. 6, 1989.

On Rehearing Denied April 27, 1990.

H. George Kagan, of Miller, Hodges, Kagan & Chait, Deerfield Beach, for appellants/cross-appellees.

Jerold Feuer, Miami, for appellee/cross-appellant.

WENTWORTH, Judge.

Claimant seeks review of a November 15, 1988 workers' compensation order awarding him an attorney's fee of $330,000. Claimant seeks review of the amount of the fee award and also the deputy's refusal to rule on the issue of bad faith. We affirm.

An order on the merits of claimant's case was entered by the deputy on April 8, 1988. An appeal was taken to this court, and this court affirmed the deputy's order on the merits on August 15, 1989. Fumigation Department v. Pearson, 547 So.2d 352 (Fla. 1st DCA 1989). Claimant was found to be permanently totally disabled due to exposure to toxic substances, and was awarded, among other things, lifetime attendant care. Claimant's recovery, reduced Claimant's attorney attempted to introduce evidence before the deputy on the issue of bad faith. The attorney for employer (self-insured) resisted this, noting that the employer acknowledged claimant's entitlement to an attorney's fee and contending that the issue of bad faith was therefore moot. In the order before us the deputy did not address the issue of bad faith. The deputy made several findings as to the scope of claimant's recovery. He found that claimant would require future psychiatric care at a rate set out in the merits order, and thus included this award of future psychiatric care in the benefits recovered by claimant. With respect to the issue of claimant's award of attendant care, the deputy found the market value of this care was to be measured by the cost to the employer of obtaining such attendant care in the market place. The deputy found that a reasonable average sum to be paid for this attendant care would be $11.25 an hour. With respect to the discount rate to be applied to the whole of claimant's award, he found that the 8% statutory discount rate applicable to an award of compensation was to be applied here also, and that the attendant care was to be classified as "services by other medical professionals," and therefore assigned an inflationary index to the cost over the next 47 years of 7.53% annually. The sum total of this recovery, after being reduced to present value, was $5,085,362.00. The order finds:

to present value, was ultimately determined to be over five million dollars.

11. Having determined the recovery (both past and anticipated future), the undersigned must now address the issue of the fee to be awarded claimant's attorneys for prosecuting the merits claim. The undersigned has considered the factors set forth in the landmark decision of the Supreme Court in Lee Engineering as well as the schedule provided in Chapter 440.34, Florida Statutes.... I now review each of the individual factors and use them in determining what, in my opinion, constitutes a reasonable fee.

A. TIME AND LABOR INVOLVED: Attorney Feuer testified he spent 292.75 hours in this case and attorney Druckman testified he spent 100 hours. The diligence of both attorneys is praiseworthy but it appears to the undersigned that, given Mr. Feuer's vast experience in the toxic tort area, his background in chemistry, and his familiarity and past association with witnesses he utilized, the amount of time actually spent seems to be greater than was necessary.... [T]he actual time and labor spent by the attorneys should be weighed in the context of the dynamics of the entire claim. I infer, therefore, that less hours were required (in order to successfully prosecute the subject claim) than was actually spent. For example, there does not appear to have been a necessity for Mr. Feuer, considering the totality of circumstances, to expend 86 hours in medical research alone during the pendency of the claim. This is especially apparent when one considers what is scientifically known about the character and quality of the chemicals involved in the claim.

B. THE NOVELTY AND DIFFICULTY OF THE QUESTIONS INVOLVED: This claim dealt with an employee, in the pesticide industry ... injuriously exposed to one of the pesticides he handled. The chemicals to which claimant was exposed were known to the parties and their toxic effects well established in the literature (compare Chapter 38 F-41, F.S.).... The parties seem to have spent more time than is generally spent in producing their evidence but this fact should not be construed as a sign the instant claim was any more exotic or unique than other exposure claims. These claims seem to generate more litigation hours than the typical "back" or "wage loss" claims and may explain why we see higher fees awarded in such cases....

C. THE SKILL REQUISITE TO PERFORM THE LEGAL SERVICES: I find that the attorneys, who have appeared on behalf of the employee, are skilled workers' compensation practitioners. Either of them and particularly attorney Feuer could have and did provide the claimant with excellent representation. My D. LIKELIHOOD THAT ACCEPTANCE OF A PARTICULAR EMPLOYMENT PRECLUDED EMPLOYMENT BY OTHERS: I find this factor to be of limited importance. If anything, given Mr. Feuer's success in the field of chemical exposure claims, his reputation is such that successful prosecution of this claim will probably lead to more referrals.... Neither attorney testified that employment, in this particular claim, precluded employment by any other respective clients. The fee should not be increased because of this factor.

knowledge of the issues and the manner in which these cases need to be tried does not lead me to the view that only an attorney, with a degree in chemistry, could have prosecuted the claim. But it did require the skills of a competent workers' compensation practitioner.

E. FEE CUSTOMARILY CHARGED IN LOCAL[ITY] FOR SIMILAR LEGAL SERVICES: ... In the experience of this Deputy Commissioner, there is no 'customary hourly rate' charged by attorneys who represent claimants in Workers' Compensation cases.... Florida Bar publications describe a spectrum of hourly fees in this community as ranging anywhere from $85.00 an hour to $250.00 per hour.... The undersigned feels a rate of $150.00 per hour should reasonably compensate a workers' compensation attorney for his time if only time was to be considered. However, the hourly rate is only one factor to be considered and attorneys should not be restricted to such a rate if other variables point to the assessment of a fee which nets more per hour.

F. THE AMOUNT INVOLVED IN THE CONTROVERSY AND THE BENEFITS RECOVERED: ... [T]he bulk of the 'recovery' constitutes an attempt by the witnesses to project what may transpire, medically, over the next 47 years both as to need and costs. It is speculative, to say the least.... The recovery figure should not be given undo [sic] weight....

G. THE TIME LIMITATION IMPOSED BY THE CLAIMANT OR THE CIRCUMSTANCES OF THE CLAIM: No evidence was presented during the pendency of this claim suggesting that claimant's attorneys were unable to handle other matters....

H. THE NATURE AND LENGTH OF THE PROFESSIONAL RELATIONSHIP: Representing the claimant in this case was a one time professional relationship. This factor does not appear to weigh one way or the other....

I. THE EXPERIENCE, REPUTATION, AND ABILITIES OF THE ATTORNEYS PERFORMING THE SERVICES: I find that claimant's counsel have excellent and well deserved reputations.... [T]heir compensation should be more per hour than what may normally be charged to the public.

J. THE CONTINGENCY OF CERTAINTY OF THE FEE: This was [a] contingent case. Claimant's attorneys had no provision for the payment of the fee by the employee in the event of a loss. If the suggested guidelines in [Florida Patient's Compensation Fund v.] Rowe [472 So.2d 1145 (Fla.1985) ] were applicable to the assessment of a fee for prosecuting a claim at the Deputy's level, the undersigned would find the contingency factor to be a '2'. While it wasn't a 'sure win,' the scientifically established association between the methyl bromide and brain damage created a better than even chance of successfully prosecuting their particular claim. But, as stated by the First DCA in [What an Idea, Inc. v.] Sitko [505 So.2d 497 (Fla. 1st DCA 1987) ], Rowe is not applicable because we have the guideline fee schedule in Section 440.34, F.S.

The undersigned Deputy Commissioner has been aided in his determination of a reasonable fee by expert testimony from the attorneys of record and Workers' Compensation practitioners who are well known to the undersigned as experts in the field of workers' compensation. The 'bottom line' figure for a reasonable fee ... ranged from a low of $12,500.00 to a high of $1,000,000.00.... [E]ach expert has emphasized variables which, to this The undersigned, exercising my own independent judgment, and weighing the variables, feels a reasonable fee for successfully prosecuting this claim (for both claimant's attorneys) is the sum of $330,000.00. This sum represents substantially more than is customarily awarded in workers' compensation matters. It equals compensation in excess of $840.00 per hour and to this fact finder, a 'bottom line' fee of $330,000.00, is appropriate considering all the circumstances of the claim.... The undersigned recognizes the fee is less than the 25/20/15 schedule would call for. However, for the reasons set forth above, the amount of $330,000.00 is a reasonable fee.

fact finder, should not have been emphasized as much as they were....

The opinion in Sonesta Beach Hotel v. Hinckley, 483 So.2d 102 (Fla. 1st DCA 1986), indicates that alternative findings of entitlement to an attorney's fee based upon both...