LIDO SPA HOTEL AND OLD REPUBLIC INSURANCE CO., APPELLANTS,
v.
CARLOS PEREZ, APPELLEE
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The court held that the employer/carrier's appeal regarding attorney's fees was premature due to the deputy commissioner's reservation of jurisdiction to determine who should pay the fee.
[1] Competent substantial evidence from a medical witness can establish a causal relationship between an accident and a claimant's hernia.
[2] A claimant's inability to work in any suitable occupation while suffering from a hernia can support an award of temporary total disability compensation.
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Join FLexlaw to unlock all legal intelligenceClaimant was awarded temporary total disability compensation and medical benefits. The employer/carrier appealed, asserting lack of evidence for disab…
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PER CURIAM.
The employer/carrier, in this appeal from an award of temporary total disability compensation and medical benefits, asserts lack of competent substantial evidence to prove disability or to show causal relation between claimant’s hernia and the accident of March 16, 1980, and error in award of penalties, interest, costs and fees.
Claimant’s medical witness confirmed a causal relationship between the accident and a hernia not immediately diagnosed as such by examining physicians who did not testify. The witness further attest ed claimant’s inability to work, in any occupation for which he is otherwise suited, while suffering a hernia for which he has awaited repair some two and a half years. That testimony amply corroborates claimant’s history of his symptomatology which the deputy found to be credible.
Since the claimant prevailed in a proceeding before the deputy commissioner the award of costs is proper. § 440.34, Florida Statutes (1979).
With respect to attorney’s fees, the decretal portion of the order reads as follows:
It is ordered that the employer . . . shall:
6. Pay the claimant’s attorney a reasonable attorney’s fee. Jurisdiction to award an attorneys fee and determination as to who shall pay same is herein specifically retained.
We do not reach the question of whether the record supports an award of attorney’s fees based on § 440.34(3)(c), because the reservation of jurisdiction to determine who shall pay the fee contradicts the award. Appellant’s fourth point on appeal is therefore premature. We note, however, that this ambiguity has recently recurred with some frequency in orders appealed here, resulting in premature briefing by the parties on the question of entitlement to an award of attorney’s fees. Orders should, of course, be drafted with precision in the disposition of fees as well as other issues.
The order is affirmed subject to determination of the fee issue.
ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WENTWORTH, JJ, concur.
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Sandcaribe, Inc. v. Raimundo Llerandi, 432 So. 2d 185 (Fla. 1st DCA 1983)…carrier’s expense rather than the claimant’s. Instead, it reserves jurisdiction to determine who is responsible for the fee and the amount thereof. Thus, appellants’ challenge to the award of attorney fees is premature. See, Lido Spa Hotel v. Perez, 418 So. 2d 303 (Fla. 1st DCA 1982). Accordingly; the cause is remanded to the deputy commissioner for specific findings of fact pertaining to the award of wage loss benefits. In all other respects, the order is affirmed subject to determination of the fee issue.…
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Orkin Exterminating Co. v. Broughton, 508 So. 2d 767 (Fla. 1st DCA 1987)…ing the employer/carrier to pay this fee, the issue will be ripe for appeal. At this time, the alleged error is prematurely raised and will not be considered. Sandcaribe, Inc. v. Llerandi, 432 So. 2d 185 (Fla. 1st DCA 1983); Lido Spa Hotel v. Perez, 418 So. 2d 303 (Fla. 1st DCA), review denied, 424 So. 2d 762 (Fla.1982). We note that if such an order is eventually entered, the deputy commissioner should make a specific finding as to the basis of the award. Osceola County Commissioners v. Thomas, 416 So. 2d…