HENRY CRUTCHFIELD, INC. AND UNITED STATES FIDELITY & GUARANTY COMPANY, APPELLANTS/CROSS APPELLEES,
v.
ROBERT JAMES JOHNSON, APPELLEE/CROSS APPELLANT
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Florida appellate court affirmed a workers' compensation order awarding permanent total disability and attendant care benefits, but reversed the trial-level attorney fee award under section 440.34(3)(a) because the issues were not medical-only, and remanded for determination of appellate attorney fees under section 440.34(5).
An attorney fee under section 440.34(3)(a) is not recoverable when the workers' compensation claim involves permanent total disability apportionment issues in addition to medical benefits.
[1] An attorney fee under Fla. …
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Join FLexlaw to unlock all legal intelligenceA claimant sought workers' compensation benefits for permanent total disability, with the deputy commissioner addressing whether benefits could be app…
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BARFIELD, Judge.
In this appeal and cross-appeal from a workers’ compensation order apportioning permanent total disability benefits and awarding additional attendant care benefits, reimbursement for sanitary supplies and an attorney fee, we affirm on all issues with the exception of the award of an attorney fee under section 440.34(3)(a), Florida Statutes (1981).
This statutory provision authorizes the claimant to recover a reasonable attorney fee from a carrier or employer against whom he successfully asserts a claim for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits arising out of the same accident. The deputy commissioner, who adjudicated the issue of whether claimant’s permanent total disability benefits could properly be apportioned due to his preexisting alcohol-related disease, erroneously found that claimant was entitled to an attorney fee under section 440.34(3)(a). His finding that “the issues before the Court were medical only” is not supported by competent, substantial evidence in the record, and the award of an attorney fee must be reversed.
However, we find that claimant is entitled to an appellate attorney fee under section 440.34(5). With the exception of the deputy commissioner’s award of an attorney fee, which is REVERSED, the order is AFFIRMED. Appellee’s motion for an appellate attorney fee is granted and the case is REMANDED to the deputy commissioner for determination of the amount of the fee to be awarded.
BOOTH and WIGGINTON, JJ., concur.