Gulledge v. Dion Oil Co.

• Decision Date: 21 August 1992
• Docket Number: No. 91-2514,91-2514
• Citation: 605 So.2d 482
• Parties: 17 Fla. L. Week. D1974 William GULLEDGE, Appellant, v. DION OIL COMPANY and Liberty Mutual Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 482

605 So.2d 482

17 Fla. L. Week. D1974

William GULLEDGE, Appellant, v. DION OIL COMPANY and Liberty Mutual Insurance Company,

Appellees.

No. 91-2514.

District Court of Appeal of Florida,

First

District.

Aug. 21, 1992.

Rehearing Denied Sept. 21, 1992.

Pamela Fleischmann, South Miami, and Joseph C. Segor, Miami, for appellant.

Kimberly A. Hill of Conroy, Simberg & Lewis, P.A., Hollywood, for appellees.

ZEHMER, Judge.

William Gulledge appeals a workers' compensation order denying his request for attorney's fees from Dion Oil Company and Liberty Mutual Insurance Company pursuant to section 440.34(3)(c), Florida Statutes (1987). We reverse.

Claimant was involved in two industrial accidents, the first on January 11, 1987, and the second on October 30, 1987, and Employer and Carrier accepted both as compensable and paid Claimant compensation benefits and medical expenses, including the costs of two hernia operations. On October 19, 1988, the parties entered into a Joint Stipulation and Joint Petition and Application for Lump Sum Settlement pursuant to section 440.20(12)(b), Florida Statutes. On October 28, 1988, the judge of compensation claims entered an "Order for Release From Liability for Future Payments of Compensation, Rehabilitation Expenses, or Death Benefits, But Excluding Medical Expenses," listing the date of accident as "1/11/87." Only the first accident was so settled, and liability on second accident remained outstanding.

On July 27, 1990, Carrier was notified by telephone that Claimant was admitted to the hospital on an emergency basis for severe abdominal pain, and Carrier refused to authorize treatment. On August 14, 1990, Carrier received a letter from Dr. Larrauri to Employer (dated August 7, 1990), stating that Claimant was seen by the doctor for recent complaints of severe abdominal pain, was found to have a recurrent hernia in the area of the previous repair, and had undergone surgery for repair thereof that "required excision of the entire previous mesh repair, lisis of interabdominal adhesions and a new mesh repair." When Claimant personally contacted Carrier by telephone on August 17, 1990, about whether the surgery was authorized, Carrier's representative, Ms. Brown, told Claimant that Carrier had not received a letter relating the hernia surgery as a re-occurrence of the compensable injury and advised Claimant to "fax" the letter to her. In the meantime, Claimant employed an attorney to press this claim. Claimant's attorney spoke with Brown three days later regarding whether Carrier would pay for the surgery and was told that Carrier would not pay because both the January 1987 and October 1987 accidents had been washed out in the settlement and the case was settled. A few days later Brown sent Claimant's attorney a letter confirming that conversation. Claimant's attorney subsequently had several other conversations with Brown and Carrier's attorney regarding the surgery. Brown then called Dr. Larrauri regarding the surgery on September 10th, and after discussing the matter with Carrier's staff medical advisor the next day, decided to accept responsibility for the surgery. However, Brown did not immediately notify either Claimant or his attorney of Carrier's changed decision to accept responsibility for the surgery and pay benefits.

Claimant filed a claim for benefits, dated September 17, 1990, and the Division of Workers' Compensation received it in Tallahassee on September 20, 1990. The claim sought temporary total disability (TTD) benefits from July 18, 1990, and continuing, payment of medical bills relating to the July 18, 1990, surgery, penalties, interest, costs and attorney's fees "pursuant to F.S. Sec. 440.34(3)(c)." Carrier began paying compensation benefits to Claimant on September 21st and the medical bills on September 24th. Carrier's attorney informed Claimant's attorney of Carrier's changed decision and its initiation of payment by a letter dated September 25, 1990. Carrier received a copy of the claim for benefits on October 5, 1990. It never served nor filed a written notice to controvert the claim for benefits based on a compensable injury. On February 6, 1991, the judge entered an "Agreed Order" on Employer and Carrier's motion to dismiss, dismissing the claim "except for count five for Attorney's Fees pursuant to Florida Statute 440.34(3)(b)."

The foregoing facts are established by the record without substantial dispute. At the hearing held on the sole issue of Carrier's liability for claimant's attorney's fees, Claimant's attorney relied on section 440.34(3)(c). On July 31, 1991, the judge ordered that Claimant's attorney was not entitled to a fee from Carrier pursuant to section 440.34(3)(c). ¹ This ruling was based upon a number of findings, including the following:

6. Further testimony indicates that a Claim for Benefits was filed on September 17, 1990, and acknowledged by the Division on October 20, 1990. However the medical bills were paid within 45 days of receipt, and I find that the medical bills were paid timely, and the Employer/Carrier provided treatment and paid indemnity benefits. Therefore, the Claimant's attorney did not successfully assert a Claim and was therefore not entitled to any award of attorney's fees.

7. Pam Fleischmann, attorney for the Claimant, testified that a reasonable fee for an attorney with her experience was in the amount of $150.00 to $200.00 per hour. Further testimony indicates that the attorney for the Claimant has expended approximately 13.25 hours pursuant to her Affidavit, and approximately five hours on research, preparation and possibly attendance at the Fee hearing. Counsel for the Claimant claims that the medicals were confusing because one Claim was open, and the other one was closed, and that she cooperated in having the doctor conferenced with the defense attorney, and mailed the medicals to the Carrier, and to the defense attorney. It is the testimony of the Claimant's attorney that through her efforts, and before the Claim was actually filed, that she was able to have the Claimant's medicals paid.

8. I nonetheless find that the letters were not Claims, and a formal Claim was never filed, until one was filed on September 17, 1990. I further find that benefits were timely paid, and the medical bills were also timely paid when they were received.

9. Based upon the foregoing, and the fact that the Claim was not filed until after a decision was made on acceptance on responsibility, I find that counsel for the Claimant is not entitled to an attorney's fee. It is clear that prior to the date the formal claim was filed, that counsel for the Claimant did not file a claim.

10. My finding that the Claimant's attorney is not entitled to an attorney's fee is based upon the fact that a Claim was not filed timely, and medical and indemnity benefits were paid within a reasonable time. Therefore, the Claimant's attorney did not successfully assert a Claim and obtain benefits for the Claimant, I find that the benefits paid on this claim were paid voluntarily, and within a reasonable period of time.

Claimant contends that the judge of compensation claims erred in denying an award of attorney's fees pursuant to section 440.34(3)(c) for the recited reasons. Claimant argues that his attorney's letter to Employer and Carrier's attorney, dated August 22, 1990, enclosing a copy of Dr. Larrauri's letter and requesting a reply within 15 days, constituted a written claim sufficient to trigger operation of the workers' compensation statute in chapter 440 because it put Employer and Carrier on notice of the claim. Claimant also argues that Carrier's denial of benefits on the basis that both accidents had been washed out by the settlement was the functional equivalent of a denial of compensability. Also, Claimant argues, the claim would not have been paid without Claimant's attorney's intervention and efforts...