PETER COHEN, APPELLANT,
v.
T & M AUTO SERVICE AND WHITING NATION SERVICE, APPELLEES
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In this workers' compensation appeal, the court affirmed the deputy commissioner's award of $11,000 in appellate attorney's fees to Cohen's counsel, rejecting the argument that fees must be calculated using the percentage-based 'starting place' method under section 440.34(1) and instead approving the commissioner's hourly-rate-based calculation adjusted for statutory factors.
The court held that section 440.34(1)'s percentage-based 'starting place' method is not mandatory for calculating appellate attorney's fees on remand. When the appellate court remands to a deputy commissioner for fee determination, the commissioner determines an appropriate amount rather than 'awarding or approving' a fee under section 440.34(1), and may properly use hourly-rate calculations adjusted for statutory factors.
[1] A deputy commissioner's determination of an appellate attorney's fee in a workers' compensation case, following a remand from an appellate court, is not an award or appro…
[2] Section 440.34(5), Florida Statutes, grants appellate courts discretion to award attorney's fees for appeals in workers' compensation cases.
Previewing 2 of 4 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“Section 440.34(5) gives this Court the authority to award an appellate attorney's fee 'in its discretion, [to] be paid as the court may direct.'”
Establishes that the appellate court has discretionary authority in awarding appellate fees, not bound by the percentage-based method in section 440.34(1).
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceCohen pursued a workers' compensation claim against his employer/carrier, T & M Auto Service, and secured over $250,000 in benefits through trial coun…
The full statement of facts, procedural history, and disposition for this case are member content.
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WIGGINTON, Judge.
Appellant appeals the deputy commissioner’s order upon remand from this Court awarding his appellate attorney an $11,000 fee. We affirm.
In pursuit of a workers’ compensation claim against appellee, employer/carrier, appellant’s trial counsel secured over $250,-000 in benefits for him. His appellate counsel successfully defended the employer/ carrier’s appeal. T & M Auto Service v. Cohen, 507 So. 2d 1106 (Fla.1987).
Thereupon, pursuant to Sierra v. Sierra, 505 So. 2d 432 (Fla.1987) and section 440.34(5), this Court granted appellant entitlement to an appellate attorney’s fee and remanded to the deputy commissioner for determination of an appropriate fee amount. At the hearing on remand, appellant’s attorney argued that the appellate fee should be determined by arriving at a “starting place” fee pursuant to the percentage based calculations set forth in section 440.34(1).
According to his calculation, the proper “starting place” fee in this case is $40,601.85. Considering the section 440.34(l)(a)-(h) factors, he considered a reasonable fee to be $37,750. He presented the testimony of an independent attorney who stated that, on a non-contingent basis, he would have charged a fee of $25,000 for the appeal and on a contingent basis, a reasonable fee would have been $35,000. Employer/carrier’s appellate counsel testified that she had billed employer/carrier approximately $10,000 in attorney’s fees for the appeal.
The deputy commissioner refused to establish the percentage based fee calculated pursuant to 440.34(1) as the “starting place” amount. Instead, he calculated a “starting place” fee of $8,375 based on the hours expended by the appellate attorneys multiplied by an appropriate hourly rate. He then considered the 440.34(l)(a)-(h) factors and, based thereon, he increased thé hourly rate and arrived at an $11,000 fee.
The deputy commissioner’s calculation of the fee in this case was well reasoned and appropriate. He properly and diligently considered and applied the 440.34(l)(a)-(h) factors in arriving at a fair fee.
We reject appellant’s assertion that section 440.34(1) mandates calculation of appellate attorney’s fees in workers’ compensation cases based upon the percentage based “starting place” fee for which that statute provides.
Section 440.34(5) gives this Court the authority to award an appellate attorney’s fee “in its discretion, [to] be paid as the court may direct.” When this Court determines entitlement to an appellate attorney’s fee and remands to a deputy commissioner for determination of the appropriate amount thereof, upon remand the deputy commissioner does not award or approve the fee, as contemplated by the language in section 440.34(1), but merely determines an appropriate fee amount.
We find that the deputy commissioner’s determination of an amount in the instant case is both reasonable and appropriate and we affirm.
SMITH, C.J., and SHIVERS, J., concur.
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Spaulding v. Albertson's, Inc., 610 So. 2d 721 (Fla. 1st DCA 1992)…to $1,753 interest on the amount of fees due as the result of the first appeal, and $1,132 interest on the amount of attorney’s fees due as the result of the second appeal. The court denied the request for interest. In Coken v. T & M Auto Service, 542 So. 2d 452 (Fla. 1st DCA 1989), this court rejected the assertion that section 440.34(1) mandates calculation of appellate attorney’s fees in workers’ compensation cases based upon the statutory percentage-based “starting place” for fees. In Cohen, the deputy…
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Mirlisena v. Chemlawn Corp. & Scott Wetzel Servs., 567 So. 2d 986 (Fla. 1st DCA 1990)…also Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828, 834 (Fla.1990); Tri-state Motor Transit Co. v. Judy, 566 So. 2d 537 (Fla. 1st DCA 1990); Fumigation Dept. v. Pearson, 559 So. 2d 587 (Fla. 1st DCA 1989); Cohen v. T & M Auto Service, 542 So. 2d 452 (Fla. 1st DCA 1989). The judge of compensation claims shall, in the exercise of his discretion, consider the contingent nature of the fee in this case along with all of the other statutory factors. We further note that the judge erred in refusing t…
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Metric Constructors, Inc. v. Boyles, 633 So. 2d 1167 (Fla. 1st DCA 1994)…reject appellant’s assertion that section 440.-34(1) mandates calculation of appellate attorney’s fees in workers’ compensation cases based upon the percentage based ‘starting place’ fee for which that statute provides.” Cohen v. T & M Auto Service, 542 So. 2d 452, 453 (Fla. 1st DCA 1989) (Emphasis in original); Spaulding v. Albertson’s, Inc., 610 So. 2d 721 (Fla. 1st DCA 1992). AFFIRMED. MINER and LAWRENCE, JJ., concur. . A required part of any initial brief is: "A conclusion, of not more than 1 page, set…
Authorities Cited
- Sierra v. Sierra, 505 So. 2d 432 (Fla. 1987)