Monroe County Sheriff's Dept./Bd. of County Com'rs v. Ruth

• Decision Date: 21 December 1982
• Docket Number: No. AM-332,AM-332
• Citation: 424 So.2d 905
• Parties: MONROE COUNTY SHERIFF'S DEPARTMENT/BOARD OF COUNTY COMMISSIONERS, Monroe County Florida and Gallagher Bassett Insurance Service, Appellants, v. Charles RUTH, Appellee.
• Court: Florida District Court of Appeals

Page 905

424 So.2d 905

MONROE COUNTY SHERIFF'S DEPARTMENT/BOARD OF COUNTY COMMISSIONERS, Monroe County Florida and Gallagher Bassett Insurance Service, Appellants, v. Charles RUTH, Appellee.

No. AM-332.

District Court of Appeal of Florida First District.

Dec. 21, 1982.

Rehearing Denied Jan. 26, 1983.

Joseph V. Niemoeller of Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Miami, for appellants.

Ramon Malca of Malca & Prager, P.A., Miami, for appellee.

MILLS, Judge.

In this appeal of a workers' compensation order, the deputy did not err in permitting claimant to pose a hypothetical question to a doctor.

The deputy did err in finding that claimant's attorney was entitled to a fee and reserving jurisdiction to set the amount of the fee only.

Claimant was injured in an accident occurring on 20 July 1980. The award of an attorney's fee is controlled by Section 440.34(3)(a), (b), (c), Florida Statutes (1981).

Claimant did not contend in either his claim or prehearing stipulations or contentions that the employer/carrier denied compensability or were guilty of bad faith or that he sought medical benefits only. The deputy did not find in his order that the employer/carrier denied compensability or were guilty of bad faith or that claimant sought medical benefits only.

In the absence of a contention that one of the criteria is claimed [ (a), (b), or (c) ] and proof of its existence, the deputy has no authority to hold that an attorney's fee is due claimant.

Affirmed in part and reversed in part.

WIGGINTON, J., concurs.

ERVIN, J., concurs and dissents with opinion.

ERVIN, Judge, concurring and dissenting.

I concur in that portion of the majority's opinion affirming the deputy's order relating to the hypothetical question posed. I respectfully dissent to that part of the opinion reversing the deputy's reservation of jurisdiction to determine the reasonableness of an attorney's fee. In my judgment, such reservation is a non-final, non-appealable order; hence one that should not be entertained on appeal. See Sunny Pines Convalescent Center v. Walters, 422 So.2d 1079 (Fla. 1st DCA, 1982), which specifically so holds.

Since, however, the majority has reached the merits of the propriety of the deputy's reservation of jurisdiction, I too will address it, and find it sustainable. The appellee's claim for benefits was couched in the following language:

1. Medical care including hospitalization, surgical care at John Hopkins Medical Institute at Baltimore Maryland.

2. Follow-up medical care following the surgery.

3. Temporary Total Disability benefits and/or Temporary Partial Disability benefits from the date the claimant is admitted to the hospital for surgery.

4. Attorneys fees, costs, and interest and penalties.

The facts reveal that the employee suffered injuries to his head as a result of a fall while in the course and scope of his employment. The e/c did not controvert the accident as compensable. It did, however, deny that the accident aggravated claimant's preexisting condition of Mucopolysaccharidosis, Type Six. The pretrial stipulation divulges that the primary contention between the carrier and the claimant was the request for medical care at Johns Hopkins Institute, where claimant had previously been treated for his condition, as well as for surgery and follow-up care. The carrier's position was that no medical treatment was necessary after July 25, 1980, following the accident which occurred on July 21, 1980.

The majority's opinion sustains the deputy's order directing the carrier to provide the claimant with the requested medical care at Johns Hopkins, together...