Rolle v. Metropolitan Dade County

• Decision Date: 07 September 1994
• Docket Number: No. 92-4137,92-4137
• Citation: 642 So.2d 100
• Parties: 19 Fla. L. Weekly D1896 Willie Belle ROLLE, Appellant, v. METROPOLITAN DADE COUNTY and Metropolitan Dade County Self-Insurance Fund, Appellees.
• Court: Florida District Court of Appeals

Page 100

642 So.2d 100

19 Fla. L. Weekly D1896

Willie Belle ROLLE, Appellant, v. METROPOLITAN DADE COUNTY and Metropolitan Dade County

Self-Insurance Fund, Appellees.

No. 92-4137.

District Court of Appeal of Florida,

First District.

Sept. 7, 1994.

Paul Morris, Coral Gables, and Alfred Gustinger, Jr., Homestead, for appellant.

Jacqueline M. Gregory of Kelley, Kronenberg, Kelley, Gilmartin & Fichtel, P.A., Miami Lakes, for appellees.

ZEHMER, Chief Judge.

We have for review the order of the judge of compensation claims awarding, inter alia, a fee to Claimant's attorney in the amount of $210,000 for his efforts in obtaining attendant care benefits. Claimant argues that the award is defective (1) for failing to address any of the factors set forth in Lee Engineering & Construction Company v. Fellows, 209 So.2d 454 (Fla.1968), as later codified in section 440.34(1)(a)-(h), Florida Statutes (1977); (2) for improperly employing a lodestar approach; (3) for utilizing an inapplicable discount factor; and, (4) for arriving at an erroneous determination of the amount of benefits obtained. We reverse.

Claimant suffered a compensable injury to her spine on April 8, 1977, and has undergone three laminectomies which ultimately resulted in her losing bowel and urinary control. In 1980, Claimant secured legal representation by Alfred Gustinger who has continued to represent her to date. In 1988, Gustinger obtained an order from the judge of compensation claims directing the Employer/Carrier to provide Claimant attendant care for 16 hours per day at a cost of $7.00 per hour. In May 1991, the parties stipulated to an increase in the cost of attendant care to $9.50 per hour.

Because Claimant's condition continued to deteriorate, Gustinger requested in August 1991 medical care on a 24-hour-a-day, 7-day-a-week basis. The claim was opposed by the Employer/Carrier and went to hearing before the judge of compensation claims. As a result, the judge entered an order awarding to Claimant the requested increase in attendant care to be provided by a licensed practical nurse who would be supervised by a registered nurse or medical doctor. The cost for this new care was found to be $25.00 per hour. The judge also concluded that Claimant's attorney was entitled to a fee. Following two hearings held on this issue, the judge entered an order finding that Alfred Gustinger expended 1,050 hours on Claimant's case, achieved benefits with a present-day value of $1,449,243.09, and was therefore entitled to a fee of $210,000.00. No other findings were entered with regard to attorney's fees. Claimant's experts had calculated fees ranging between $979,182 and $1,351,600.

Without passing on the adequacy of the fee awarded, we agree with Claimant that the judge's order is defective, primarily in failing to specify or apply any of the factors set forth in Lee Engineering & Construction Company v. Fellows. This omission alone calls for reversal and remand for additional consideration. See Von Hartman v. Publix Supermarkets, 534 So.2d 938 (Fla. 1st DCA 1988); Williams v. Delta Upsilon Fraternity, 462 So.2d 552 (Fla. 1st DCA 1985); Commercial Carrier Corporation v. Porter, 452 So.2d 125 (Fla. 1st DCA 1984); Department of Health and Rehabilitative Service v. Bean, 435 So.2d 967 (Fla. 1st DCA 1983). On remand, however, the judge may apply the 1977 version of section 440.34, which codifies the Lee Engineering factors, but which also employs a modest contingent percentage formula as a starting point. See Okaloosa County Gas District v. Mandel, 394 So.2d 453 (Fla. 1st DCA 1981) (holding that the 1977 amendments to section 440.34 were not the type of radical or substantive change which would preclude retrospective application).

Claimant also argues that the judge based his fee award upon an inapplicable discount factor. The judge found that the benefits obtained by Gustinger had a present-day value of $1,449,243.09. The judge accepted the Employer/Carrier's valuation based upon the additional cost of attendant care benefits of $15.50 per hour ($25.00 per hour minus the earlier award costing $9.50 per hour); care for 24 hours a day; a 22.6 years' life expectancy; and an 8 percent discount factor. Claimant urges that the 8 percent factor is inapplicable because the accident in this case occurred in 1977, when the discount factor was only 4 percent. We agree with Claimant, but not for the reason she advances.

The 4 percent discount rate was borrowed from section 440.20(10), Florida Statutes (1975). While that section actually pertains to wash-out settlements and lump-sum advances of compensation benefits, the rate set forth therein has also been applied to compute the present value of benefits obtained for the claimant in determining a reasonable fee. See Tri State Motor Transit Company v. Judy, 566 So.2d 537 (Fla. 1st DCA 1990); Locke v. Rooney, 508 So.2d 467 (Fla. 1st DCA 1987); School Board of Collier County v. Salter, 457 So.2d 1132 (Fla. 1st DCA 1984). However, after careful analysis of these cases, we see no logical reason to require the strict application of the statutory discount factor to the calculation of an attorney's fee. Rather the determination of present value should be based on the evidence, including expert testimony, presented at the hearing, which may also include reference to this statutory discount rate.

The notion that the statutory discount factor is relevant to the attorney fee issue was first advanced by this court in School Board of Collier County v. Salter, wherein we observed that the challenged fee order did not adequately set forth the Lee Engineering factors to permit an orderly review. However, upon remand, the then deputy commissioner was directed to consider an earlier decision by the Industrial Relations Commission set forth in Deese v. Oolite Rock Company, IRC Order 2-1045 (1961), affirmed on other grounds, 134 So.2d 241 (Fla.1961), in which the IRC focused on the failure of the...