JOSEPH WEBB, DECEASED, ROSEMARY TURNER, APPELLANT,
v.
HILLS VAN SERVICE AND NATIONWIDE MUTUAL INS. CO., APPELLEES
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A workers' compensation claimant appeals the denial of approval for an attorney's fee agreement where the claimant agreed to pay her attorney's fee directly. The court reverses, holding that while such arrangements require deputy approval under Florida Statutes § 440.34(3)(a), they are not prohibited by the absence of express statutory or regulatory authorization.
An attorney's fee arrangement between a claimant and her attorney, where the claimant agrees to pay the fee directly, is not prohibited and is subject to deputy approval under Florida Statutes § 440.34(3)(a). The deputy must determine the reasonableness of the fee based on the value of services rendered.
[1] The absence of an express provision in workers' compensation rules does not preclude approval of an attorney's fee agreement.
[2] Statutory provisions, rather than procedural rules, govern the entitlement to and source of payment of a claimant's attorney's fee in workers' compensation cases.
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“the absence of an express authorizing provision, in either the statute or the Workers' Compensation Rules of Procedure, does not preclude deputy approval or otherwise prohibit the fee arrangement involved in this case. Such a prohibition would be in derogation of the common law, and the statute will not be so construed absent a clear legislative intent in this regard.”
Establishes the core holding that lack of express statutory authorization does not prohibit attorney fee arrangements between claimant and counsel.
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Join FLexlaw to unlock all legal intelligenceClaimant's attorney negotiated a lump sum settlement involving periodic compensation benefits previously awarded. The attorney sought approval of a fe…
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WENTWORTH, Judge.
Claimant appeals a workers’ compensation order denying approval of an attorney’s fee agreement between claimant and her attorney. Claimant’s attorney had negotiated a lump sum settlement with payment of periodic compensation benefits previously awarded, and sought approval of a fee agreement by which claimant would pay an attorney’s fee. The deputy denied approval after determining that “the Workmen’s [sic] Compensation Rules do not provide for payment of an attorney’s fee” in these circumstances.
We disagree with the deputy’s apparent conclusion that the absence of any express provision in the rules precludes the approval of a fee.
Section 440.34, Florida Statutes, is a substantive provision insofar as it relates to entitlement to, and the source of payment of, a claimant’s attorney’s fee.
Therefore, the present case is governed, in this regard, by § 440.34, Flori da Statutes (1976) — the statutory provision in effect at the time of the compensable accident. Cf., Sullivan v. Mayo, 121 So. 2d 424 (Fla.1960).
Since in the present case claimant has by contractual arrangement agreed to pay her own attorney’s fee, § 440.34(1), Florida Statutes (1976), is inapplicable inasmuch as that provision relates only to deputy approval of attorney’s fee awards payable by an employer/carrier, upon the “successful prosecution of the claim.” However, § 440.34(3)(a), Florida Statutes (1976), further requires deputy approval of “any fees, other consideration, or any gratuity on account of services so rendered . ... ” The attorney’s fee arrangement in the present case is constrained by this provision, and it is therefore necessary that claimant’s attorney obtain approval from the deputy prior to receipt of any such fee. But the absence of an express authorizing provision, in either the statute or the Workers’ Compensation Rules of Procedure, does not preclude deputy approval or otherwise prohibit the fee arrangement involved in this case. Such a prohibition would be in derogation of the common law, and the statute will not be so construed absent a clear legislative intent in this regard. Cf., East Coast Tire Co. v. Denmark, 381 So. 2d 336 (Fla. 1st DCA 1980).
We find no clear legislative intent to prohibit such a fee arrangement, and we therefore conclude that, in the circumstances of this case, the contractual fee arrangement between claimant and her attorney is not prohibited and is subject to deputy approval pursuant to § 440.34(3)(a), Florida Statutes (1976). In discharging his obligation under this statute the deputy should determine the reasonableness of the amount of the fee, considering the value of the service — obtaining a lump-sum payment of periodic compensation benefits previously awarded — rendered by claimant’s attorney.
The order appealed is reversed and the cause remanded for further proceedings.
ERVIN and SHIVERS, JJ., concur.
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S. Bakeries & Kemper Grp. v. Corwin Cooper, 659 So. 2d 339 (Fla. 1st DCA 1995)…iewed as substantive or procedural have routinely treated the entitlement to a service, and the source of payment therefor, as a matter of substance. See Clay Hyder Trucking v. Atherton, 450 So. 2d 318 (Fla. 1st DCA 1984); Webb v. Hills Van Service, 414 So. 2d 262 (Fla. 1st DCA 1982); Ship Shape v. Taylor, 397 So. 2d 1199 (Fla. 1st DCA 1981). Section 440.13(5) is likewise properly viewed as effecting a substantive change in the law, insofar as it alters the parties’ obligation to pay for the claimant’s indepe…
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C. F. Mueller & the Hartford Ins. Grp. v. Searcy, 418 So. 2d 397 (Fla. 1st DCA 1982)…es (1971) is the statutory provision in effect at the time of the com-pensable accident. It is a substantive provision insofar as it relates to the entitlement to, and the source of, payment of a claimant’s attorney’s fee. Webb v. Hills Van Service, 414 So. 2d 262 (Fla. 1st DCA 1982). Section 440.34, Florida Statutes (1971) provides in part: 440.34. Attorney’s fees; costs; penalty for violations.— (1) If the employer or carrier shall file notice of controversy as provided in s. 440.20, or shall decline to p…
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Merritt Manor Nursing Home & Constitution State Serv. Co. v. Leola Caldwell, 667 So. 2d 265 (Fla. 1st DCA 1995)…)(b), Florida Statutes (Supp.1994), also is not applicable to the present ease because application of the statute would affect the claimant’s right to compensation and thereby impairs a party’s substantive rights. See, e.g., Webb v. Hills Van Serv., 414 So. 2d 262 (Fla. 1st DCA 1982) (statute which affected entitlement to, and source of payment of, an attorney’s fee, was substantive). The statute in effect on the date of the claimant’s injury must be applied when it is a substantive provision. See Sullivan v.…
Authorities Cited
- Sullivan v. Mayo, 121 So. 2d 424 (Fla. 1960)
- E. Coast Tire Co. & the Home Ins. Co. v. Denmark, 381 So. 2d 336 (Fla. 1st DCA 1980)