Okaloosa County Gas Dist. v. Mandel
| Decision Date | 06 February 1981 |
| Docket Number | No. TT-383,TT-383 |
| Citation | 394 So.2d 453 |
| Parties | OKALOOSA COUNTY GAS DISTRICT et al., Appellants, v. Christopher MANDEL, Appellee. |
| Court | Florida District Court of Appeals |
Larry Hill of Sherrill, Moore & Hill, Pensacola, for appellants.
John L. Myrick of Myrick & McKenzie, P. A., Pensacola, for appellee.
The employer and carrier appeal the award of attorney's fees claiming it to be excessive and urge error concerning an award of interest on the amount dating from 21 days after a joint stipulation was approved by order. We reverse only the second point.
On August 21, 1978 the deputy originally awarded a fee of $10,000, deviating only slightly from the statutory formula set forth in Section 440.34, 1 Florida Statutes (1977) because there was nothing particularly unique or novel about the issues in the case and attorney time should not have exceeded 40 hours. (The attorney estimated time spent of 61.76 hours). The Industrial Relations Commission, approving the deputy's factual findings, reversed, holding that the award was plainly excessive. On remand, the deputy reduced the award to $7,950.00. Under the sliding scale provisions of the statute an award would initially have been set at $11,025.00.
In affirming the first point, we have considered the percentage fee schedule and Lee Engineering 2 factors codified in Section 440.34, effective here after the accident date, but before the time of the deputy's award. The statute in this regard is not the type of radical or substantive change which would preclude retrospective application. See Florida International University v. Phillips, IRC Order 2-3902 (1979). "The amendment, in effect, merely amplified the case law and altered in certain respects the burden of proof on fee issues by specifying grounds for departure from the stated schedule." Lawrence Nali Construction Co. v. Price, IRC Order 2-3909 (1979).
In the 1977 statute, the legislature has approved a modest contingent percentage formula as the starting point for determining a reasonable fee. Under the statutory scheme, the deputy must then consider factors (1)(a)-(h). Using his discretionary judgment, the deputy commissioner may increase or decrease the fee award. See Southern Bell Telephone & Telegraph v. Rollins, 390 So.2d 93 (Fla. 1st DCA 1980); East Coast Tire Co. v. Denmark, 381 So.2d 336, 339-340 (Fla. 1st DCA 1980). Prior to this statutory enactment, it was considered by the courts that the nature of workers' compensation law was such that the contingent percentage basis was not appropriate. Lee Engineering and Construction Co., 209 So.2d at 458. The validity of this view remains because the legislature also requires consideration of the Lee Engineering factors in addition to the new contingency fee provisions. But because the new statute emphasizes a contingent fee formula as a starting point, we think there may be instances when an award, arguably excessive under Lee Engineering, may now be approved as set reasonably within the deputy's broad range of discretion. Although under all the circumstances the award here appears high, especially considering its per hour rate, we cannot say that the deputy abused his discretion in resetting the award at $7,950, a reduction of the statutory award by about 27%. See United States Steel Corp. v. Greene, 353 So.2d 86, n.9 (Fla.1977) (). But see Florida International University, supra at p. 7. We conclude that to judge the excessiveness of the award solely on the basis of its per hour rate would be to improperly ignore the new sliding scale provisions in the statute. Accordingly, Point I is affirmed.
As to the second point, in a workers' compensation case, "interest should...
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