Lord v. Santa Rosa Corr. Institute/The Div. of Risk Mgmt.

• Decision Date: 24 April 2014
• Docket Number: No. 1D13–3249.,1D13–3249.
• Citation: 135 So.3d 1170
• Parties: Steven M. LORD, Appellant, v. SANTA ROSA CORRECTIONAL INSTITUTE/The Division of Risk Management, Appellees.
• Court: Florida District Court of Appeals

135 So.3d 1170

Steven M. LORD, Appellant,

v.SANTA ROSA CORRECTIONAL INSTITUTE/The Division of Risk Management, Appellees.

No. 1D13–3249.

District Court of Appeal of Florida, First District.

April 24, 2014.

Teresa E. Liles of Smith & Liles, P.A., Pensacola, for Appellant.

Elizabeth A. Izquierdo and Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.

PER CURIAM.

In this workers' compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) on his motion for employer/carrier-paid (E/C-paid) attorney's fees. The JCC awarded approximately half of the requested fees. We reverse the exclusion of the remainder of the requested fees, and hold that, because entitlement to fees is tied to the securing of a benefit, the amount of fee for securing any given benefit should include all attorney time reasonably necessary to secure that benefit.

As background, Claimant suffered a compensable injury on September 28, 1999, and the E/C accepted the injury as compensable and authorized Dr. Kalaji to be Claimant's primary care provider (PCP). Eventually, Dr. Kalaji discontinued seeing workers' compensation patients, and Claimant requested authorization of a new PCP. The parties mediated the claim on September 12, 2012, and at mediation the E/C agreed to authorize a new PCP, and conceded entitlement to E/C-paid attorney's fees for securing that benefit. The E/C had trouble finding a doctor who would agree to serve as PCP for Claimant, so Claimant moved to enforce the mediation agreement, which ultimately—after several orders from the JCC—resulted in the E/C's selecting Dr. VerVoort to be Claimant's new PCP on December 7, 2012. The JCC did not include the fees incurred between the mediation and the authorization of Dr. VerVoort (except for the time expended on receipt and review of both the mediation report and the order cancelling the pretrial conference and final hearing), and it is these excluded fees which Claimant now seeks.

The JCC reasoned that Claimant was “entitled” to E/C-paid fees for the attorney time expended before the mediation, but not “entitled” to E/C-paid fees for the time expended after mediation because the E/C did not act in bad faith or unreasonably delay the authorization of a new PCP. It was error for the JCC to conceptualize the attorney time as two distinct periods of “entitlement” because all of the fees in dispute were alleged to be associated with a single benefit (authorization of Dr. VerVoort as the new PCP). This error is not harmless because entitlement to fees for securing that benefit had already been stipulated to. See§ 440.34, Fla. Stat. (1999).

The JCC based his ruling largely on Jennings v. National Linen Services, 995 So.2d 1153 (Fla. 1st DCA 2008), which involved the issue of entitlement to an E/C-paid attorney's fee. In Jennings, the claimant's pain management physician forewarned the E/C that he was planning to discontinue his practice, but the E/C had difficulty locating a physiatrist to take over claimant's care. Id. at 1154. In the meantime, the physician continued to furnish care and treatment, uninterrupted, and when the JCC ultimately entered an order authorizing a new physiatrist, the JCC denied E/C-paid attorney's fees, reasoning that the claimant's attorney had not secured any...