TENNECO, INC., AND TRAVELERS INS. CO., APPELLANTS,
v.
EARL GIESE, APPELLEE

Fla. 1st DCA | 1989-06-09
No. 88-2467
NIMMONS and MINER, JJ., concur.
544 So. 2d 1099 Florida District Court of Appeal, First District (1989) Positive Treatment
Cited by 2 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

Tenneco and its insurer appealed a workers' compensation order awarding an attorney's fee to an injured worker's counsel. The court affirmed the finding that the employer/carrier was entitled to pay an attorney's fee for unreasonably resisting a claim for medical benefits, but reversed and remanded the determination of the fee amount because the deputy judge failed to adequately consider statutory criteria and departed significantly from the statutory percentage formula without sufficient justification.


Holding

The court held that the claimant was properly awarded an attorney's fee because the employer/carrier unreasonably resisted the claim by failing to conduct a prompt and diligent investigation despite being on notice of the claimant's need and entitlement. However, the fee amount was improper because the deputy judge failed to adequately consider the statutory criteria and departed from the statutory percentage formula (awarding nearly three times the formula amount) based solely on hours expended without sufficient justification.


Headnotes

[1] An employer/carrier may be responsible for an attorney's fee when they fail to pursue an investigation with sufficient effort and initiative to fairly and expeditiously d…

[2] A workers' compensation order awarding an attorney's fee must indicate a sufficient consideration of the statutory criteria regarding the amount of the fee.

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

Key Quotes

“employer/carrier did not pursue this investigation with sufficient effort and initiative to fairly and expeditiously determine their responsibility as required by Holiday Care Center v. Scriven”

Establishes the basis for finding the employer/carrier responsible for the attorney's fee—their failure to conduct a timely and diligent investigation

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The claimant sustained an industrial injury and was accepted as permanently totally disabled. He requested a motorized wheelchair and attendant care b…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
WENTWORTH, Judge.

WENTWORTH, Judge.

Employer/carrier seek review of a workers’ compensation order by which an attorney’s fee was awarded. Claimant cross-appeals. We find that entitlement to an attorney’s fee was properly established, but that the order does not indicate a sufficient consideration of the various statutory criteria with regard to the amount of the fee. We therefore affirm the order as to the finding of entitlement, but reverse and remand for further action as to the amount of the fee.

Claimant sustained an industrial injury and was accepted by employer/carrier as permanently totally disabled. He subsequently requested a motorized wheelchair and attendant care by his spouse. Employer/carrier did not furnish these benefits, and a hearing was eventually held upon a formal claim. Although asserting that they were not contesting entitlement, employer/carrier maintained that they had inadequate medical evidence to support these benefits. They further suggested that claimant had impeded their investigation by failing to fully cooperate with his physicians. After evidence was presented at the hearing the deputy awarded the requested wheelchair and attendant care, and reserved jurisdiction as to claimant’s attorney’s fee.

An attorney’s fee hearing was thereafter held, and the deputy awarded a fee in accordance with section 440.34(3)(a), Florida Statutes, for employer/carrier’s unsuccessful resistance of the claim for medi cal benefits.

The evidence established that employer/carrier was placed on notice of claimant’s desire for the wheelchair and attendant care, together with facts and circumstances indicating both need and entitlement. While claimant was not entirely cooperative with every one of his physicians, he complied with employer/carrier’s request for further medical evaluation and did not impede their investigation.

However, employer/carrier did not pursue this investigation with sufficient effort and initiative to fairly and expeditiously determine their responsibility as required by Holiday Care Center v. Scriven, 418 So. 2d 322 (Fla. 1st DCA 1982). The deputy was entitled to conclude that employer/carrier had exceeded any reasonable period of prompt investigation, and is responsible for claimant’s attorney’s fee pursuant to section 440.-34(3)(a). See generally, Sistrunk v. City of Dunedin, 513 So. 2d 200 (Fla. 1st DCA 1987).

In establishing the amount of the fee the deputy noted the number of hours expended by claimant’s attorney, and determined the resulting fee in accordance with an hourly rate. The deputy’s order does not adequately address the other criteria described in section 440.34(1), Florida Statutes. While a fee order may not always need to expressly address every one of these criteria, cf., Haucke v. Oxford Development, 507 So. 2d 712 (Fla. 1st DCA 1987), the order should generally reflect the deputy’s consideration of these factors, and must indicate the basis for a fee award which departs from the statutory percentage formula. See Florida Power & Light Co. v. Haycraft, 421 So. 2d 674 (Fla. 1st DCA 1982).

In the present case the deputy awarded an amount which is nearly three times that which would result from the statutory percentage formula. Although the attorney’s “time and labor” is one of the statutory factors to be considered, this court has disallowed other departures from the percentage formula when based solely upon the number of hours expended. See e.g., Brevard County Mental Health Center v. Kelly, 420 So. 2d 911 (Fla. 1st DCA 1982).

In the context here presented, the deputy’s order does not reflect a sufficient consideration of the section 440.34(1) attorney’s fee criteria, nor does it delineate an adequate basis for exceeding the amount which would result from the statutory percentage formula.

In valuing the benefits which claimant’s attorney secured the deputy considered only such benefits as were furnished “to date.” While the evidence was not definite as to the length of time claimant will need the full amount of attendant care awarded, the award was made on a “continuing” basis. On remand the deputy may consider whether some value should be accorded to this future benefit in determining the amount to be awarded as an attorney’s fee.

The order appealed is affirmed as to the finding of entitlement to an attorney’s fee. The order is reversed as to the amount of the fee awarded, and the cause is remanded.

NIMMONS and MINER, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Fumigation Dep't & Claims Ctr. v. Pearson, 559 So. 2d 587 (Fla. 1st DCA 1989)
    …the factors in Lee Engineering and section 440.34(1), the order contains no explanation showing why the statutory formula fee should be reduced so drastically. Yet it is well established that this explanation is required. In Tenneco, Inc. v. Giese, 544 So. 2d 1099 (Fla. 1st DCA 1989), we explained: In establishing the amount of the fee the deputy noted the number of hours expended by claimant’s attorney, and determined the resulting fee in accordance with an hourly rate. The deputy’s order does not adequatel…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw