Kraft Dairy Group v. Sorge, 92-4304

• Court: Court of Appeal of Florida (US)
• Citation: 634 So.2d 720
• Docket Number: No. 92-4304,92-4304
• Parties: 19 Fla. L. Weekly D635 KRAFT DAIRY GROUP and Ideal Mutual Insurance Company, Appellants, v. Larry R. SORGE, Appellee.
• Decision Date: 21 March 1994

Page 720

634 So.2d 720 19 Fla. L. Weekly D635 KRAFT DAIRY GROUP and Ideal Mutual Insurance Company, Appellants,
v.
Larry R. SORGE, Appellee. No. 92-4304. District Court of Appeal of Florida,
First District. March 21, 1994.
Rehearing Denied May 5, 1994.

Page 721

Robert L. Teitler of Walton Lantaff Schroeder & Carson, Miami, for appellants.

Warren Brown of Ress, Mintz & Truppman, P.A., North Miami, for appellee.

WEBSTER, Judge.

In this workers' compensation case, the employer and carrier seek review of an order awarding a fee to claimant's counsel for services rendered in opposition to a motion for modification. Because we conclude that the facts of this case do not support an attorney fee award pursuant to the applicable statute, we reverse.

Claimant suffered a compensable injury in 1983. In 1986, he was awarded permanent total disability benefits and psychiatric and attendant care. In 1991, the employer and carrier filed a motion for modification, asserting that claimant was no longer permanently and totally disabled; that he no longer required attendant care; and that he had failed to obtain any type of psychiatric care for more than two years. (At the hearing, counsel for the employer and carrier amended the motion to request only a determination of whether, during a period while claimant was the subject of surveillance, claimant was permanently and totally disabled and in need of attendant care.) The judge of compensation claims denied the motion for modification, reserving jurisdiction to determine whether claimant's counsel was entitled to an award of attorney fees.

At the attorney fee hearing, the employer and carrier argued that the fee statute in effect at the time of claimant's injury applied; that, pursuant to the applicable statute, a fee could be awarded only if the "carrier ha[d] acted in bad faith ... and the injured worker ha[d] suffered economic loss"; and that the evidence would not sustain a finding of either "bad faith" or "economic loss." Counsel for claimant argued that the fee statute in effect at the time of the hearing applied, and that that statute expressly provided for an award when the claimant prevails in a modification proceeding; that the employer and carrier failed timely to raise as a defense the unavailability of a fee award in modification proceedings pursuant to the statute in effect at the time of the injury; or, alternatively, that the evidence would sustain findings of "bad faith" and "economic...