Sawyer v. Dover Cylinder Head Co.

• Decision Date: 17 January 1992
• Docket Number: No. 91-1396,91-1396
• Parties: Willie SAWYER, Appellant, v. DOVER CYLINDER HEAD COMPANY, and CNA Insurance Company, Appellees. 593 So.2d 279, 17 Fla. L. Week. D290
• Court: Florida District Court of Appeals

Page 279

593 So.2d 279

Willie SAWYER, Appellant, v. DOVER CYLINDER HEAD COMPANY, and CNA Insurance Company,

Appellees.

No. 91-1396.

593 So.2d 279, 17 Fla. L. Week. D290

District Court of Appeal of Florida,

First District.

Jan. 17, 1992.

John F. Law, Jr., Panama City, for appellant.

Richard S. Thompson of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellees.

JOANOS, Chief Judge.

The claimant in this workers' compensation case appeals the amount of an attorney's fee award. The issue is whether the judge of compensation claims erred in failing to award an attorney's fee on the total stipulated amount of permanent total disability benefits and supplemental benefits obtained for claimant, in accordance with the statutory formula set forth in section 440.34, Florida Statutes. We reverse.

The claimant suffered a compensable back injury on May 5, 1987. After undergoing surgery for two ruptured discs, he reached maximum medical improvement on October 17, 1988. The carrier began paying wage-loss benefits at that time, and continued to do so up until September 19, 1990, the date of the order finding claimant to be permanently totally disabled. The claims adjuster for the carrier testified that the carrier would have continued to pay wage-loss benefits for the entire period of wage-loss eligibility, if necessary. The adjuster explained that although a rehabilitation specialist had been assigned to the case, the claimant lives in such an isolated area that the company could not expect him to perform a job search every day. The adjuster stated that permanent total disability benefits were contested because the claimant had transferable skills and some ability to work. However, the adjuster also acknowledged that claimant was required to conduct a work search during the entire period between his date of maximum medical improvement and the permanent total disability determination, claimant was never advised that he did not have to conduct a work search, a check did not go out to him until fifteen days after receipt of his work search documents, and if he had not continued to do a work search--he would not have received wage-loss benefits.

In a joint stipulation, the parties agreed: (1) the present value of permanent total disability benefits from July 10, 1990, including future supplemental benefits, is $95,700; (2) a statutory attorney fee on $95,700 is $15,105; (3) the carrier paid ninety weeks of wage loss benefits, from date of maximum medical improvement through date of permanent total disability; (4) the present value of the 430 weeks of wage-loss benefits to which claimant might have been entitled is $42,061.29; and (5) a statutory fee on this amount is $9,245.81.

In the order awarding attorney's fees, the judge found the unrefuted evidence showed the carrier intended to continue paying wage-loss benefits until the 520-week period of entitlement had expired, and that claimant would have received the 430 weeks of wage-loss benefits available under the statute, regardless of his attorney's efforts. ¹ Since claimant had received wage-loss benefits for ninety weeks prior to the permanent total disability determination, the judge deducted the present value of the remaining 430 weeks of claimant's potential entitlement. The judge then ruled that claimant's attorney was entitled to a statutory fee on all supplemental benefits, reduced to present value, and on the present value of all permanent total disability benefits which claimant would have received after expiration of the 430 weeks still potentially available pursuant to statute. See Sec. 440.15(3)(b)3.c, Fla.Stat. (1987). Based on these calculations, the judge awarded an attorney's fee of $9,245.81 concluding that this amount represented the statutory fee based on the benefits obtained for the claimant through the efforts of his attorney.

Section 440.34(2), Florida Statutes (1987), provides:

In awarding a reasonable attorney's fee, the deputy commissioner shall consider only those benefits to the claimant that the attorney is responsible for securing.

This provision has been construed to mean "that an attorney's fee should be determined on the basis of the total benefits secured as the result of the lawyer's intervention." Barr v. Pantry Pride, 518 So.2d 1309, 1318 (Fla. 1st DCA 1987), review denied, 525 So.2d 876 (Fla.1988); Jackson v. Dade County School Board, 484 So.2d 1290, 1291 (Fla. 1st DCA 1986). See also Wiseman v. AT & T Technologies, 569 So.2d 508, 511 (Fla. 1st DCA 1990); Johnson v. Marriott Hotel, 523 So.2d 730, 733 (Fla. 1st DCA 1988).

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