International Paper Co. v. McKinney, 55995

• Decision Date: 29 May 1980
• Docket Number: No. 55995,55995
• Citation: 384 So.2d 645
• Parties: INTERNATIONAL PAPER CO., Petitioner, v. Oscar McKINNEY, Respondent.
• Court: Florida Supreme Court

Page 645

384 So.2d 645

INTERNATIONAL PAPER CO., Petitioner, v. Oscar McKINNEY, Respondent.

No. 55995.

Supreme Court of Florida.

May 29, 1980.

Lynn C. Higby and C. Richard Watson of Isler, Higby, Brown, Smoak & Watson, Panama City, for petitioner.

Russell R. Stewart and J. Donelson Jones, Panama City, for respondent.

ADKINS, Justice.

By petition for a writ of certiorari, International Paper Co. (hereinafter referred to as employer), has asked us to quash an order of the Industrial Relations Commission awarding attorneys' fees. We have jurisdiction. Art. V. § 3(b)(3), Fla.Const.; § 440.27(1), Fla.Stat. (1977).

The basic question before the court is whether or not an employer, having initially denied compensation for temporary total benefits, is bound to pay an attorney's fee on all subsequent benefits awarded to claimant, even when the subsequent benefits are paid voluntarily and timely.

In awarding attorneys' fees, the judge of industrial claims relied upon Ford v. Cunningham-Limp Co., 203 So.2d 326 (Fla.1967). In Ford, the claimant sustained a compensable accident on August 12, 1959. The employer voluntarily paid temporary total and permanent partial benefits until January 20, 1965. On February 19, 1965, claimant filed a claim requesting resumption of temporary total disability and further benefits. An order was entered on May 12, 1965, finding that the claimant had not reached maximum medical improvement and that temporary total compensation was due. In October of 1965 the employer voluntarily began paying permanent total compensation. The claimant's attorney filed a claim for additional attorneys' fees based on the increased benefits. The judge of industrial claims awarded him additional fees stating that "the increased benefits were at least in part the direct result of the efforts of the claimant's attorney." Upon review, the commission reversed; this Court affirmed the order of the judge of industrial claims. In its opinion the Court said:

(T)he evidence supports the conclusion and finding of the deputy commissioner that the substantially increased award, although volunteered and consented to by the employer-carrier, was at least in part the direct result of the efforts and professional acumen of the claimant's attorneys who had sustained the claimant's right of recovery in the earlier hearing, and it was therefore error for the Full Commission to disturb the award made by the deputy commissioner. (emp. in original).

203 So.2d at 327.

In the case sub judice the claimant filed a claim on March 1, 1972, seeking "temporary total, remedial treatment, attorneys' fees and any and all other entitlements claimant may be entitled to under chapter 440, Florida Statutes." A hearing was held on April 14, 1972, at which time the claimant did not assert a claim for any permanent total benefits. In fact, the judge of industrial claims found that the claimant was seeking "temporary total, payment of outstanding medical bills, reimbursement of transportation costs, continued medical treatment, attorneys' fees and costs." The employer was ordered to pay temporary total disability and outstanding medical bills, to furnish additional medical treatment and was awarded attorneys' fees and costs. The employer paid all benefits as ordered.

On June 6, 1975, the employer was notified that the claimant had reached maximum medical improvement. On June 23 1975, the employer accepted the claimant as permanently and totally disabled, backdating the benefits to June 4, 1975. Benefits have been paid to claimant without interruption from June 6, 1975, and no claim has been made for additional payments.

The employer initially contested the claim for temporary total compensation, but after the judge of industrial claims ordered temporary total to be paid, the employer voluntarily paid permanent total compensation as soon as permanent total could have been paid. The claimant's attorney did not perform any additional services for the claimant after the initial hearing on the claim for temporary total benefits.

The sum of $1,300.00 was awarded initially. Subsequently the attorney filed a claim for attorneys' fees and an order awarding additional attorney's fees was entered on December 24, 1977. Upon appeal, this award was affirmed by the Industrial Relations Commission. This petition for writ of certiorari resulted.

Stated simply, the factual situation is as follows: An employer initially controverts a claim. The claim is allowed as to temporary disability and the claimant's attorney is awarded a fee. The employer pays the temporary disability as ordered. When the claimant reaches maximum medical improvement, the employer voluntarily pays permanent disability within the twenty-one-day time limit. The claimant's attorney seeks an additional fee based on the permanent benefits obtained. The judge of industrial claims ruled that the attorney was entitled to a fee. We disagree.

Our Court recently vacated a similar attorneys' fees in United States Steel Corp. v. Green, 353 So.2d 86 (Fla.1977). In Green the employee suffered a job-related injury and filed a claim for temporary total or permanent partial disability benefits and " 'all other benefits available under the Workmens Compensation Act." ' 353 So.2d at 87. At the hearing, the employer contested the claim and the judge of industrial claims found the claimant had not reached maximim medical improvement. He awarded temporary total benefits and a fee of $1,200.00. On review, the Industrial...