ORANGE COUNTY SCHOOL BOARD AND THE HARTFORD ACCIDENT AND INDEMNITY COMPANY, APPELLANTS,
v.
DOROTHY VAN ZANT, APPELLEE

Fla. 1st DCA | 1981-06-26
No. XX-224
MILLS, C. J., and SHAW, J., concur.
400 So. 2d 1019 Florida District Court of Appeal, First District (1981) Caution
Cited by 8 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the deputy commissioner's order allowing a $4,000 attorney fee was not supported by competent, substantial evidence because the factors for determining fees were misapplied, particularly the time expended.


Headnotes

[1] A fee awarded to a claimant's attorney in a workers' compensation proceeding must be reasonable and supported by competent, substantial evidence.

[2] The evaluation of attorney's fees in workers' compensation cases should be governed by factors including time and labor, novelty and difficulty, customary charges, amount…

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

A claimant's attorney was awarded a $4,000 fee in a workers' compensation case concerning a dispute over prescription purchases. The deputy commission…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PEARSON, TILLMAN (Retired), Associate Judge.

PEARSON, TILLMAN (Retired), Associate Judge.

The single question presented on this appeal is whether a fee for a claimant’s attorney allowed in a workers’ compensation proceeding is reasonable and supported by competent, substantial evidence. The right to a fee for claimant’s attorney arose out of an order of June 20, 1978. The June 20th order determined that the claimant was not required to purchase her prescriptions from a particular pharmacy selected by the carrier and directed the payment of a bill in the amount of $49.75.1 The fee allowed was in the amount of $4,000.00.

The parties agree that the evaluation of services for the purpose of setting a fee is to be governed by the factors set forth in Lee Engineering and Construction Company v. Fellows, 209 So. 2d 454 (Fla.1968). They are as follows:

In determining the amount of the fee, it is proper to consider: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause; (2) whether the acceptance of employment in the particular case will preclude the lawyer’s appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of other employment while employed in the particular case or antagonisms, with other clients; (3) the customary charges of the Bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the services; (5) the contingency or the certainty of the compensation; and (6) the character of the employment, whether casual or for an established and constant client. No one of these considerations in itself is controlling. They are mere guides in ascertaining the real value of the service. Lee Engineering at 458 — 459.

Neither the record nor the deputy commissioner’s order provide a basis for the allowance of the fee assessed upon a consideration of the factors set forth in Lee Engineering, supra. Since the benefits obtained from the original claim were negligible, one of the primary factors relied upon to determine the fee award was the amount of time expended in preparation of the case. In this regard, the deputy’s determination of 26 hours is not supported by the record. Initially, the testimony of claimant’s counsel as to the number of hours he expended was merely an estimate. Counsel did not keep time records and he arbitrarily assigned ten minutes to every activity connected with the file. The estimate also included approximately four hours of conference with the claimant and four hours of hearing and preparation time, together with three hours preparing the deputy commissioner’s order. In Brevard County School Board v. Walters, 396 So. 2d 1197 (Fla. 1st DCA 1981), this Court admonished counsel for failure to keep time records and noted that the “absence of reliable time and work records makes it impossible to identify any extraordinary personal counseling and to differentiate between that and necessary legal services.” Similarly, in this case it appears that the number of hours expended in conferences with the claimant included a good portion of “handholding”, which the Walters court held was not compensable. In addition, the evidence also indicates that the 26 hour figure erroneously included time which was unrelated to the issue of who was responsible for selection of and payments to the pharmacy. See, e. g. Burk Construction Co. v. Terribile, IRC Order 2-3132 (April 11, 1977), cert. denied 353 So. 2d 680 (Fla.1977).

Of the remaining Lee Engineering factors that were applicable to this case,2 evidence introduced regarding the novelty and difficulty of the issue, the customary charges for services, the amount involved in the controversy, and the contingency of compensation was not sufficient to explain the great divergence between the proved time expended on the case and the amount of the fee.

It is our conclusion that the deputy commissioner has misapplied the factors considered and that the order allowing the fee must be reversed and the matter remanded for a further consideration. Reconsideration is to be limited to the actual hours proved to have been expended on the case and the expert testimony received is to be directed only to the factors here held applicable.

REVERSED and REMANDED for reconsideration consistent with this opinion.

MILLS, C. J., and SHAW, J., concur. . The order of June 20, 1978, was appealed and affirmed but appellate fees are not a part of the consideration for the fees allowed in the order now appealed.

. Factors (2) and (6) of Lee Engineering do not appear to be applicable in this case.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Barr v. Pantry Pride, 518 So. 2d 1309 (Fla. 1st DCA 1987)
    …hat in both the hours were verified. The E/C argue that although it had no reason to doubt Mr. Sicking’s claim of 185 hours, he was not relieved of his burden of proof and his duty to keep time records, citing Orange County School Board v. Van Zant, 400 So. 2d 1019 (Fla. 1st DCA 1981), and Brevard County School Board v. Walters, 396 So. 2d 1197 (Fla. 1st DCA 1981). As amazing as it may seem, no evidence of the time expended by counsel was ever produced at the hearing. The necessity for the keeping of adequate…
  • Fla. Power & Light Co. v. Haycraft, 421 So. 2d 674 (Fla. 1st DCA 1982)
    …In his order the deputy commissioner states that he has taken into consideration all the factors set forth in § 440.34, Fla. Stat., Lee Engineering & Construction Co. v. Fellows, 209 So. 2d 454 (Fla.1968), and Orange County School Board v. Van Zant, 400 So. 2d 1019 (Fla. 1st DCA 1981), and carefully lists all of the factors that he considered, including the number of hours expended by claimant’s attorney. However, without stating the number of hours expended or without stating the effect, if any, of any of the…
  • M. Serra Corp. & The Travelers Ins. Co. v. Garcia, 426 So. 2d 1118 (Fla. 1st DCA 1983)
    …, of the “time and labor required,” in performing the legal service for the claimant. Section 440.34(l)(a), Florida Statutes (1981); Brevard County School Board v. Walters, 396 So. 2d 1197 (Fla. 1st DCA 1981); Orange County School Board v. Van Zant, 400 So. 2d 1019 (Fla. 1st DCA 1981); State, Department of Agriculture v. Handy, 413 So. 2d 808 (Fla. 1st DCA 1982). While we cannot say that the fee of $75,-000.00 awarded here is “patently excessive” (Handy, 413 So. 2d at 810), based on the obtaining of attendant…

Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw