Wiseman v. AT & T Technologies, Inc., 89-1696

• Decision Date: 22 October 1990
• Docket Number: No. 89-1696,89-1696
• Citation: 569 So.2d 508
• Parties: 15 Fla. L. Weekly D2635 Rosalie Czernohus WISEMAN, Appellant, v. AT & T TECHNOLOGIES, INC., Self-Insured, Appellee.
• Court: Florida District Court of Appeals

Page 508

569 So.2d 508

15 Fla. L. Weekly D2635

Rosalie Czernohus WISEMAN, Appellant, v. AT & T TECHNOLOGIES, INC., Self-Insured, Appellee.

No. 89-1696.

District Court of Appeal of Florida,

First District.

Oct. 22, 1990.

Stuart F. Suskin, Abrams & Suskin, North Miami Beach, for appellant.

H. George Kagan and Sheryl S. Natelson, Miller, Hodges, Kagan & Chait, Deerfield Beach, for appellee.

JOANOS, Judge.

In this workers' compensation appeal, claimant challenges the amount of the attorney's fee awarded to claimant's counsel. The issues presented for review concern (1) the judge's finding regarding the value of benefits secured to claimant by virtue of her counsel's efforts; (2) the applicability of the decisions in International Paper Co. v. McKinney, 384 So.2d 645 (Fla.1980) and Samurai of the Falls, Inc. v. Sul, 509 So.2d 359 (Fla. 1st DCA), review denied, 518 So.2d 1274 (Fla.1987), to the facts of this case; and (3) the judge's finding that claimant's counsel expended only thirty to thirty-five hours of productive time on the case. We reverse.

On September 18, 1981, claimant incurred a work-related back injury, which the employer accepted as compensable. The employer paid compensation benefits through November 1, 1981, when the authorized treating physician discharged claimant with the view that there were no residual effects of the accident. Compensation benefits were suspended at that time, and claimant was advised to return to work. Claimant continued to experience problems with her back, and on November 25, 1981, claim was filed for payment of past medical bills; future medical care; temporary total disability benefits from November 2, 1981, and continuing until date of maximum medical improvement; wage loss benefits; attorney's fees, interest, and costs. After a hearing, an order was entered awarding temporary total disability benefits from September 18, 1981, to January 15, 1982, and deferring the issues of wage loss benefits and attorney's fees.

On August 11, 1982, claimant was hospitalized and a myelogram revealed disc abnormalities at two levels. The employer disputed responsibility for the hospital bill incurred in connection with the myelogram, because part of the treatment claimant received was unrelated to her back injury. Ultimately, the employer paid half of this bill. On October 24, 1983, claimant underwent diskography, and chymodiactin injections at L/4-5 and L/5-S/1 levels. The treating physician reported a significant breakdown in rapport between himself and claimant, which the physician attributed to claimant's expectation that the treatment rendered would afford greater relief than she actually experienced.

Ultimately, claimant developed a drug dependency, allegedly due to reliance on prescription drugs for her back pain. Because her own efforts to abstain from the prescription drugs proved unsuccessful, claimant went to a drug rehabilitation center for help. She saw a psychiatrist, Dr. Rubin, on the same day. Claimant did not request drug rehabilitation or psychiatric services prior to her first contact with the drug rehabilitation center or with Dr. Rubin. Dr. Rubin found claimant to be in a highly emotional state, and suggested that she be hospitalized. He related claimant's emotional condition to her work-related accident, and concluded that claimant could not function at work at all.

On November 15, 1983, a request was made for authorization of further psychiatric treatment, on grounds that claimant's need for such treatment was due to her compensable injuries. In addition, Dr. Rubin's bill was submitted for payment. The employer refused payment of Dr. Rubin's bill on grounds that his services had neither been requested nor authorized. Further, it was the employer's position that if claimant had developed an emotional dependence on pain medication, it was not attributable to her on-the-job injury, and the employer did not intend to provide psychiatric care.

On December 23, 1983, claim was made for payment of Parkway General Hospital bill, psychiatric care, and attorney's fees. The June 4, 1984, hearing on the claim was postponed by agreement of the attorneys, so that claimant could be treated at a pain center as recommended by a rehabilitation nurse. The employer approved treatment for claimant at Baptist Hospital Pain Clinic. Subsequently, claimant checked herself out of the pain clinic and requested authorization for treatment by a neurologist, Dr. Ross. When the employer failed to respond, claimant's counsel referred her to a neurosurgeon. The employer was notified, and refused authorization of the neurosurgeon. On July 30, 1984, the employer filed a notice to controvert claimant's right to further compensation benefits, and notified all parties of the suspension of voluntary payment of all compensation benefits, with the exception of necessary medical care.

On August 14, 1984, claimant submitted a bill from Parkway Regional Medical Center in the amount of $29.50, for treatment ordered by Dr. Moriber, authorized physician. Claimant also requested payment for therapy ordered by Dr. Moriber, and a neurological evaluation. On September 12, 1984, claimant underwent surgery for removal of two spinal discs.

On December 5, 1984, a hearing was held on the employer's notice to controvert and on claimant's claim for payment of various medical bills, temporary total disability benefits from January 15, 1982, to August 20, 1984, and continuing, and attorney's fees. In an order dated February 18, 1985, the judge of compensation claims found that (1) claimant failed to establish that the services she received at Parkway General Hospital were causally related to her compensable injury; (2) claimant was entitled to temporary total disability benefits from August 20, 1984, and continuing to maximum medical improvement; (3) the parties stipulated that $5,750.00 would be paid in lump sum for the claim for unpaid temporary total disability payments between January 15, 1982, and August 20, 1984; (4) claimant was entitled to reimbursement of $91.60 which she paid to Parkway General Hospital for emergency room care on June 12, 1984, and June 17, 1984; (5) the surgery performed by Dr. Guilianti for disc removal was reasonable and necessary, but claim for payment was barred by section 440.13, because claimant did not seek authorization from the employer and the surgery was not of an emergency nature; (6) the employer consented to claimant's request for future medical care by Dr. Guilianti; (7) claimant was entitled to psychiatric care which had been refused by the employer; and (8) by agreement of both counsel; the issue of attorney's fees was held in abeyance.

In sum, the record in this case reflects that from 1981 until 1985, the employer provided claimant with temporary total disability benefits, medical care, and rehabilitation benefits on an intermittent basis. The total value of these benefits is not documented in the record. On June 28, 1985, the employer filed a second notice to controvert and claim to suspend or terminate compensation benefits. A rehabilitation report filed August 15, 1985, indicates that claimant had returned to school, and that temporary total disability benefits had been reinstated. On September 23, 1985, the employer was notified that the long hours in school had caused an exacerbation of claimant's back problems, for which claimant requested care by an orthopedist. In addition, the employer was advised that the adjuster had withheld compensation checks due June 10 and 17, 1985, and request was made to have the checks sent to claimant.

On January 10, 1986, claimant's counsel advised the employer that again the adjuster had withheld compensation payments, and request was made for payment of same. On February 4, 1986, claim was filed for continuation of schooling, temporary total disability benefits during schooling, authorized medical care, interest, costs, and attorney's fees. On February 12, 1986, the employer filed a notice to controvert the claimed benefits.

On August 4, 1986, in response to a request for evaluation and treatment by Dr. Green, a neurosurgeon, the employer authorized a choice of three other neurosurgeons. On September 16, 1986, the employer was notified that claimant underwent a myelogram on September 4, 1986, and that arrangements had been made for therapy to begin at Parkway Regional Hospital on September 15, 1986. The employer was requested to provide temporary total disability benefits from September 4, 1986, and continuing until the doctors indicated otherwise. In correspondence dated September 30, 1986, the employer was advised that claimant had not received benefits for the latest period of disability.

On October 2, 1986, claimant notified her attorney that she had obtained other counsel. Claimant's original counsel filed a claim for attorney's fees. At the July 2, 1987 hearing on attorney's fees, the statement on attorney's fees was admitted without objection. Counsel's time sheets reflect 244.25 hours expended on the case. According to claimant's counsel, the employer's statement indicated that through June 23, 1987, the employer had paid $38,000.00 in benefits. Counsel stipulated that before he entered the case, the employer had paid approximately $800.00 in compensation benefits. The employer's counsel stated that the total value of benefits secured by claimant's counsel was $21,196.00

During the discussion of time spent in the representation, the employer's counsel stated that he employed unit billing, as did claimant's counsel. In this regard, the record reflects that employer's counsel billed for 240.5 hours, a figure comparable to the 244.25 hours reflected on time sheets submitted by claimant's counsel. The employer's counsel emphasized that his unit billing is based on a much lower hourly rate than he bills for actual time logged. At the October 5, 1987, hearing, the employer's second counsel stated that he conside...