Samper v. W.B. Johnson Properties, Inc./Holiday Inn
| Decision Date | 07 January 1986 |
| Docket Number | No. BE-239,BE-239 |
| Citation | 481 So.2d 88,11 Fla. L. Weekly 174 |
| Parties | 11 Fla. L. Weekly 174 Gilma SAMPER, Appellant, v. W.B. JOHNSON PROPERTIES, INC./HOLIDAY INN and Reliance Insurance Co., Appellees. |
| Court | Florida District Court of Appeals |
C. Kenneth Stuart, Jr., and H. Guy Smith of H. Guy Smith, P.A., Lakeland, for appellant.
Susan W. Fox and Richard R. Crooke of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellees.
The claimant in this workers' compensation appeal complains of the deputy commissioner's refusal to denominate an award of an attorney's fee as an "interim" award and to reserve jurisdiction to consider further attorney's fees based upon possible future compensation awards. We agree with the deputy and affirm.
The employer/carrier had refused to recognize the claimant's psychiatric condition as a compensable injury resulting from her March 1981 accident. Pursuant to a stipulation entered into just prior to the December 1983 hearing, the claimant prevailed on the issue of compensability and the deputy awarded temporary total disability benefits beginning February 5, 1983, and continuing, and psychiatric care by a physician. The deputy also ordered the employer/carrier, pursuant to the stipulation, to pay a reasonable attorney's fee under Section 440.34(3)(c), Florida Statutes, which allows recovery of a fee from the carrier or employer:
(c) In a proceeding in which a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue.
Since such fees were not paid, a hearing was held in December 1984 for the determination of the amount of the fee. At the hearing, an issue arose as to whether the fee awarded should be an "interim" fee with the view that the claimant might subsequently be entitled to more fees depending upon the claimant's future entitlement, if any, to further compensation awards. The deputy ruled, over the claimant's objection, that the fee awarded should be denominated "final." It is from that determination that claimant appeals.
Claimant asserts that since she has not yet reached maximum medical improvement, the fee must be awarded as an interim instead of final fee in order to meet the requirements of Section 440.34(1), Florida Statutes (1983). Under that statute, the fee is determined by the application of certain percentages to the amount of benefits secured and by the consideration of a number of additional factors.
Claimant argues that the deputy cannot know what future benefits will flow from counsel's services, including possible permanent total disability or wage loss benefits, and that the fee awarded must therefore be an interim fee. The claimant also argues that this court's decision in Jerry Chapman, Inc. v. Ivey, 448 So.2d 11 (Fla. 1st DCA 1984) places counsel for claimants in an untenable situation unless entitlement to interim fees is recognized in cases such as this. Claimant points out that, under Jerry Chapman, if a claim for an attorney's fee is not prosecuted within two years (one year now under Fla.W.C.R.P. 4.110(b)), the claim is subject to dismissal for failure to prosecute.
This Court has held that it is improper for a deputy to reserve jurisdiction to award an additional fee merely to take into account the continuing dispersal of benefits to a claimant. That approach overly emphasizes the contingency aspect of a fee award. See Santa Rosa Marble, Inc. v. Ubieta, 436 So.2d 311 (Fla. 1st DCA 1983); City of Leesburg v. Padgett, 397 So.2d 732 (Fla. 1st DCA 1981). In Santa Rosa Marble, the deputy commissioner's order awarded a fee for services rendered up to the date of the hearing and reserved jurisdiction for "purposes of determining a reasonable attorney's fee owing to claimant's attorney for any future wage loss benefits obtained for the claimant." Relying on Matera v. Gautier, 133 So.2d 732 (Fla.1961), this court reversed that portion of the order reserving jurisdiction to award attorney's fees based on future compensation. In City of Leesburg v. Padgett, the deputy's order awarded a fee for services in securing attendant care and reserved jurisdiction to award additional periodic fees for as long as the claimant continued to need attendant care. That portion of the order reserving jurisdiction was reversed; See also B.P. Construction, Inc., v. Garcia, 440 So.2d 76 (Fla. 1st DCA 1983) ().
Claimant's counsel seeks to distinguish the instant case from the above cases on the basis that in the instant case the claimant has not yet reached MMI. She may be entitled to a different type of benefit, e.g., PTD or wage-loss, which would necessitate further services on the part of counsel. This argument is unavailing.
As pointed out in Moss v. Keller Industries, Inc., 393 So.2d 574 (Fla. 1st DCA 1981), the former rule was that:
[O]nce the employer/carrier improperly denies or terminates payment of benefits (even temporary benefits) it thereafter becomes liable for attorney's fees on the award of permanent benefits to the claimant, even though such permanent benefits are voluntarily accepted and timely paid by the employer/carrier...
Id. at 576. However, the Moss opinion pointed out that this rule was changed by the court in International Paper Co. v. McKinney, 384 So.2d 645 (Fla.1980). In the latter case, the court said:
Stated simply, the factual situation is as follows: An employer initially controverts a claim. The claim is allowed as to temporary disability and the claimant's attorney is awarded a fee. The employer pays the temporary disability as ordered. When the claimant reaches maximum medical improvement, the employer voluntarily pays permanent disability within the twenty-one-day time limit. The claimant's attorney seeks an additional fee based on the permanent benefits obtained. The judge of industrial claims ruled that the attorney was entitled to a fee. We disagree.
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An employer's contest of a claim at the beginning of a case does not lock the employer into paying attorneys' fees on all subsequent benefits paid if the employer voluntarily and timely pays the additional benefits.
At first blush, one would assume that the rule articulated in International...
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