PUTNAL GROVES AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
BYRON JAMES BUTLER, APPELLEE

Fla. 1st DCA | 1988-05-27
No. 87-1106
WENTWORTH and BARFIELD, JJ., and FRANK, RICHARD H., Associate Judge, concur.
525 So. 2d 1003 Florida District Court of Appeal, First District (1988) Positive Treatment
Cited by 5 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.

Synopsis

This workers' compensation appeal addresses whether an attorney's fee award should include benefits obtained after the claimant was accepted as permanently and totally disabled. The court held that attorney's fees should be based on all benefits flowing from the finding of compensability, including future permanent and total disability benefits, if those benefits resulted from the attorney's efforts and the issues litigated.


Holding

The court held that attorney's fees should be based on the total benefits secured as a result of the attorney's intervention, including both temporary and permanent benefits, and reasonably predictable future benefits, provided those benefits resulted from the attorney's efforts and the scope of issues litigated.


Headnotes

[1] An award of attorney's fees in a workers' compensation action may be based on the value of both temporary and permanent benefits obtained by the claimant's attorney.

[2] An attorney's fee award should be predicated upon the total benefits secured as a result of the attorney's intervention.

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Key Quotes

“An award of attorney's fees is appropriate based on a finding of compensability and all other benefits which flow from that finding; that is, the fee should be predicated upon the total benefits secured as a result of the intervention of the attorney.”

Establishes the core holding that fees should encompass all benefits flowing from the finding of compensability and the attorney's intervention.

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Facts & Procedural History

Claimant Byron James Butler filed a workers' compensation claim on April 29, 1985, which was controverted by the employer and carrier. The claimant's …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The employer and carrier in this workers’ compensation action appeal an order of the deputy commissioner granting claimant’s counsel an award of attorney’s fees. On appeal they contend the deputy commissioner erred in basing the award on benefits obtained after claimant was accepted as permanently and totally disabled.

Following a hearing at which evidence was presented regarding the benefits obtained and the services rendered by claimant’s attorney, the deputy commissioner, citing Polote Corp. v. Meredith, 482 So. 2d 515 (Fla. 1st DCA 1986), awarded an attorney’s fee of 10% of the benefits secured for the claimant, or $57,393. The deputy commissioner based the fee in part on the $54,582 paid in past compensation and medical benefits, $169,353 in future permanent and total disability benefits, and $350,-000 in anticipated medical benefits, for a total of $573,935. The deputy commission er distinguished International Paper Co. v. McKinney, 884 So. 2d 645 (Fla.1980), on the bases that the statute involved was substantially different and only certain specific benefits had been controverted.

We hold that the deputy commissioner correctly grounded the award of attorney’s fees on the value of both the temporary and permanent benefits obtained. An award of attorney’s fees is appropriate based on a finding of compensability and all other benefits which flow from that finding; that is, the fee should be predicated upon the total benefits secured as a result of the intervention of the attorney. Polote Corp. v. Meredith, 482 So. 2d 515. See Prestressed Systems v. Goff, 486 So. 2d 1378 (Fla. 1st DCA 1986), in which this court held that a claimant’s attorney will not be limited to an award of fees based on benefits actually awarded at the time a determination is made that an employer/carrier is liable for payment of fees, but may be awarded upon the consideration of all benefits that are reasonably predictable if at the time of the entry of the order establishing claimant’s right to have attorney’s fees assessed against the employer, such benefits could be considered reasonably predictable. See also Barr v. Pantry Pride, 518 So. 2d 1309 (Fla. 1st DCA 1987).

This court has also held that before the “reasonably predictable” [benefits] issue can be determined, it must be shown that the benefits on which the fee is desired to be based resulted from the attorney’s efforts on behalf of his client and from the scope of the issues already litigated.

Samurai of the Falls, Inc. v. Sul, 509 So. 2d 359, 363 (Fla. 1st DCA), rev. denied, 518 So. 2d 1274 (Fla.1987) (emphasis supplied).

In this case, the benefits giving rise to the award were obtained as a result of the intervention of claimant’s attorney and from the scope of issues already litigated. The record indicates that when the initial claim was filed on April 29, 1985, it was controverted by the employer/carrier. It was necessary for claimant to secure the services of counsel, file a claim for benefits and an application for a hearing on the matter. As the employer/carrier concedes, it was proper to fashion the award from certain of the past benefits claimant received.

It was also established that during the initial phase of these proceedings, claimant’s attorney requested and secured the services of Dr. Myint, a specialist in occupational medicine and industrial toxicology. It was Dr. Myint’s diagnosis and findings that ultimately led to the claimant’s being accepted as having a compensable injury and as being permanently disabled. Although after a period of medical treatment the carrier voluntarily accepted claimant as PTD, it is unlikely this voluntary acceptance would have occurred without the intervention of claimant’s attorney. “But for” counsel’s insistence and efforts in securing Dr. Myint’s opinion, these benefits, both past benefits and future PTD and medical benefits, would not likely have been forthcoming. Jackson v. Dade County School Board, 484 So. 2d 1290,1291 (Fla. 1st DCA 1986).

AFFIRMED.

WENTWORTH and BARFIELD, JJ., and FRANK, RICHARD H., Associate Judge, concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Wiseman v. AT & T Techs., Inc., 569 So. 2d 508 (Fla. 1st DCA 1990)
    …t’s counsel obtained reinstatement of temporary total disability benefits and additional medical care. Here, as in Jackson and Barr v. Pantry Pride, those benefits would not have been forthcoming but for counsel’s efforts. See also Groves v. Butler, 525 So. 2d 1003 (Fla. 1st DCA 1988). The second issue is directed to the judge’s application 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, 51…
  • …s fees is appropriate based on a finding of compensability and all other benefits which flow from that finding; that is, the fee should be predicated upon the total benefits secured as a result of the intervention of the attorney.” Groves v. Butler, 525 So. 2d 1003, 1004 (Fla. 1st DCA 1988). [*1097] In this case, the E/C temporarily suspended claimant’s PTD benefits pursuant to the following statute: The employer’s or carrier’s right to conduct vocational evaluations or testing pursuant to s. 440.491 continue…
  • …or claimant’s attorney’s intervention, claimant’s injury would not have been accepted as com-pensable and he would have received no benefits. Thus, all benefits that were obtained necessarily flowed from the attorney’s efforts. See Groves v. Butler, 525 So. 2d 1003 (Fla. 1st DCA 1988); Polote Corp. v. Meredith, 482 So. 2d 515 (Fla. 1st DCA 1986) (on reh’g). Cases the E/SA cites for the proposition that an E/SA who contests a claim at the beginning of the case is not liable for attorney’s fees on all subsequent…

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