Williams v. Delta Upsilon Fraternity
| Decision Date | 11 January 1985 |
| Docket Number | No. AX-232,AX-232 |
| Citation | 462 So.2d 552,10 Fla. L. Weekly 158 |
| Court | Florida District Court of Appeals |
| Parties | 10 Fla. L. Weekly 158 Frances M. WILLIAMS, Appellant, v. DELTA UPSILON FRATERNITY and Aetna Casualty & Surety Company, Appellees. |
Thomas W. Davis of Law Offices of Barton, Cox & Davis, Gainesville, for appellant.
Barry D. Graves of Ritch & Graves, P.A., Gainesville, for appellees.
Claimant, who suffered a pre-1979 disabling back injury, appeals an order of the deputy commissioner awarding her attorney a fee of $4,500.00, claiming that the amount awarded is inadequate considering the services rendered, and that the deputy's order inadequately explains the basis for the amount awarded. We agree and reverse.
On February 8, 1978, claimant fell and hurt her back while working as a cook for Delta Upsilon Fraternity. She was hospitalized eighteen days and since then has suffered back and radiating right leg pain. She also claims a loss of bowel and bladder control due to the industrial accident. In the summer of 1978, claimant moved to California where Dr. Mongrain became her treating physician.
The employer/carrier paid temporary total disability benefits from February 8, 1978, until September 10, 1982. At this time, relying on the report of their examining physician, Dr. Barta, the employer/carrier took the position that claimant had reached maximum medical improvement and had suffered no permanent physical impairment due to her industrial accident.
On December 28, 1982, claimant filed a claim for continuing temporary total disability benefits. Alternatively, she contended that if she had reached maximum medical improvement, then she was permanently totally disabled or permanently partially disabled. She asked for continuing treatment by Dr. Mongrain, including but not limited to intestinal bypass surgery as recommended. Finally, she asked for attendant home health care aid and attorney's fees.
A hearing was held on this claim on May 16, 1983. Prior to the hearing, Dr. Mongrain's deposition had been taken in California by claimant's California counsel. At the final hearing, claimant requested and was granted permission to take another deposition of Dr. Mongrain which was taken by her Florida counsel telephonically on July 20, 1983. After Dr. Mongrain's second deposition, the employer/carrier accepted claimant as permanently totally disabled effective July 21, 1983.
In his July deposition, Dr. Mongrain testified that he had seen claimant over 200 times since the accident and that her condition had gotten progressively worse. She has been hospitalized at least five times since she has been in California. He diagnosed claimant's condition as a degenerating disc at L-5/S-1 causing both right and left radiculopathy and spinal cord irritation as well as intermittent muscle spasm. Because of her back condition and pain, claimant lies on the floor 80% of the time. She can stand for fifteen minutes or so after physical therapy, but otherwise can stand for only a few minutes before she must lie down. Dr. Mongrain causally related claimant's loss of bowel control to the spinal cord irritation she suffered as a result of the accident. He noted that she was an extremely obese woman and that her obesity hindered treatment. He felt there was only a 10% chance that a laminectomy would improve claimant's condition given her present weight. However, if claimant had intestinal bypass surgery resulting in weight loss and a laminectomy was performed, he felt there was at least a 50% chance that her condition would improve. Finally, he testified that he had requested the carrier to perform these surgeries four years earlier but the carrier had continually refused to authorize the surgeries. He stated that he had never seen a person with this type of back condition go so long without surgery. He implied that claimant's loss of bowel control could have been avoided if claimant had had surgery earlier. If the recommended surgeries were not performed, Dr. Mongrain felt that claimant had reached maximum medical improvement and was permanently totally disabled.
Based on Dr. Mongrain's deposition, the deputy entered an order on August 17, 1983, finding that claimant had been temporarily totally disabled from the onset of her injury. He ordered the employer/carrier to pay the claimant temporary total disability benefits from September 10, 1982, and continuing as long as claimant remains temporarily totally disabled. He directed the employer/carrier to furnish claimant attendant care three hours a day and such medical care and attention as the nature of her injury and the process of her recovery might require, including bypass surgery and a laminectomy as prescribed by Dr. Mongrain. An attorney's fee was awarded to claimant's attorney and jurisdiction was reserved to determine the amount after submission of affidavits. This order was not appealed.
At the hearing on attorney's fees, claimant's attorney took the position that he was entitled to an attorney's fee based upon permanent total disability benefits because the employer/carrier's acceptance of claimant as permanently totally disabled was not timely and was solely attributable to the actions of her attorney in gathering information and demonstrating the basis for an award of permanent total disability benefits. In response to the employer/carrier's claim that their first notice of claimant's true condition came after the second deposition of Dr. Mongrain was taken, claimant points out that their asserted reliance upon the earlier report from Dr. Barta that claimant suffered no permanent physical impairment as a result of her industrial accident was unjustified. Dr. Barta based his opinion on the assumption that not until 1981 did claimant complain of right leg pain from the 1978 accident. However, claimant's attorney points out that Dr. Barta ignored the report of Dr. Mauldin dated March 21, 1978, and of Dr. Freeman dated May 30, 1978, both of which indicated claimant was complaining of right leg pain and diagnosed nerve root irritation at L-5. Moreover, claimant's attorney notes that Dr. Barta ignored Dr. Mongrain's earlier notations of radiating right leg pain.
On the other hand, the employer/carrier took the position that the deputy's order of August 17, 1983, finding the claimant to be...
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