Hendry County School Bd. v. Mitchell

• Decision Date: 29 July 1998
• Docket Number: No. 97-4327,97-4327
• Citation: 716 So.2d 814
• Parties: 23 Fla. L. Weekly D1792 HENDRY COUNTY SCHOOL BOARD and McCreary Corporation, Appellants, v. Clarice MITCHELL, Appellee.
• Court: Florida District Court of Appeals

Page 814

716 So.2d 814

23 Fla. L. Weekly D1792

HENDRY COUNTY SCHOOL BOARD and McCreary Corporation, Appellants, v. Clarice MITCHELL, Appellee.

No. 97-4327.

District Court of Appeal of Florida,

First District.

July 29, 1998.

Rehearing Denied Sept. 4, 1998.

Isabel M. Alcocer of Neil J. Hayes, P.A., Palm Beach Gardens, for Appellants.

Arthur P. Pumpian of Danielson, Clarke, Pumpian & Ford, P.A., West Palm Beach, for Appellee.

BENTON, Judge.

Hendry County School Board (School Board) and McCreary Corporation appeal an award of attorney's fees in the amount of $17,500. The award is predicated on Clarice Mitchell's lawyer's success in obtaining less than $300 in workers' compensation indemnity benefits for her, together with timely furnished medical benefits. We find no entitlement to a fee award and reverse.

At issue is whether Ms. Mitchell's lawyer is entitled to a fee at the appellants' expense under section 440.34(3)(a) or (b), Florida Statutes (1995). Subsubsection (a) authorizes a fee award when an injured employee prevails on a petition for benefits containing a claim for medical benefits only. See Gulledge v. Dion Oil Co., 605 So.2d 482 (Fla. 1st DCA 1992); Gunn's Quality Glass & Mirrors, Inc. v. Strode, 425 So.2d 73 (Fla. 1st DCA 1982). Subsubsection (b) authorizes a fee award when an injured employee prevails on a petition for benefits in "any case in which the employer or carrier files a notice of denial with the division."

When Ms. Mitchell was injured on September 24, 1996, the School Board accepted her injury as compensable. On November 8, 1996, a lawyer filed a petition for benefits requesting temporary benefits for the periods from September 25 to October 6, 1996, and from October 12, 1996, and continuing. The petition requested that claimant's correct average weekly wage be determined and sought further treatment with the chiropractor already authorized to treat her. Finally, the petition made an initial request for orthopedic evaluation, asking specifically that a Dr. Hoover be authorized to perform the evaluation.

Twelve days after the petition for benefits was filed, the employer responded by filing a notice of denial, which stated that no temporary benefits were due, that Dr. Studley remained authorized to provide chiropractic care, and that Dr. Gorman was authorized to provide an orthopedic evaluation.

The claimant has since conceded that the School Board's determination of average weekly wage exceeded what she requested, and that, at the time the petition for benefits was filed, the employer had paid all temporary benefits she was owed at any time in 1996.

On May 15, 1997, however, Ms. Mitchell's lawyer informed the employer that he thought the claimant was entitled to temporary indemnity benefits for a week she missed work in January of 1997. The employer did not deny that benefits were due, and, on June 5, 1997, paid a week's worth of indemnity benefits, together with penalties and interest, on account of the January period.

After her employer authorized Dr. Gorman, Ms. Mitchell informed the employer that she did not want to be evaluated by Dr Gorman. The School Board then authorized--and Ms. Mitchell agreed to be evaluated and treated...