SIR ELECTRIC, INC. AND NORTHBROOK INSURANCE COMPANY, APPELLANTS/CROSS-APPELLEES,
v.
GHEORGHE BORLOVAN AND THE FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF WORKERS' COMPENSATION, APPELLEES/CROSS-APPELLANTS
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In this workers' compensation appeal, the court affirmed an award of attendant care benefits and attorney's fees based on the present value of lifetime attendant care for a permanently disabled worker. The court rejected the employer/carrier's argument that a newly enacted statutory cap on attorney's fees should apply retroactively to this case.
The court held that the award of attendant care benefits was supported by credible evidence and that the use of the claimant's life expectancy in calculating attorney's fees was proper. The court also held that the statutory cap on attorney's fees is substantive and cannot be applied retroactively to cases determined before its effective date.
[1] A workers' compensation judge may award attendant care benefits when substantiated by the testimony of the claimant's attending physician, even if contradicted by the emp…
[2] The present value of projected future attendant care benefits for the remainder of a claimant's expected life may be used to determine attorney's fees in a workers' compe…
Previewing 2 of 5 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“The judge of compensation claims (JCC) was not required to accept the equivocal testimony of the psychologist presented by the E/C, who testified that the claimant did not seem to need such services when she saw him, but observed, further: "But, of course, I was not at home when he dressed that morning."”
Establishes that the trial judge properly rejected expert testimony questioning the need for attendant care, particularly where the expert lacked full observation of the claimant's activities.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe claimant sustained permanent brain damage and was incapable of working. Dr. Morariu, the claimant's attending physician, testified that the claima…
The full statement of facts, procedural history, and disposition for this case are member content.
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SMITH, Judge.
In this appeal of a workers’ compensation order, the E/C contest the award of attendant care benefits, and the award of attorney’s fees based upon the present value of projected future attendant care benefits for the remainder of claimant’s expected life. We find no error. The need for attendant care was fully substantiated by the testimony of Dr. Morariu, claimant’s attending physician. The judge of compensation claims (JCC) was not required to accept the equivocal testimony of the psychologist presented by the E/C, who testified that the claimant did not seem to need such services when she saw him, but observed, further: “But, of course, I was not at home when he dressed that morning.” The psychiatrist presented by the E/C, Dr. Pinosky, did not specifically mention attendant care benefits in his reports after examination of the claimant, but in his later testimony, did state his opinion that for the claimant to have too many things done for him would be a “psychological disincentive” for him to rehabilitate himself, and that in his opinion claimant should not have attendant care. Admittedly, however, he had not seen the claimant since June 7, 1988, while the attending physician, Dr. Morariu, had followed the claimant since that date and testified not only to his need for attendant care benefits as of that time, but that the claimant’s condition continued to worsen.
As for the award of attorney’s fees based upon the receipt of attendant care benefits for the remainder of claimant’s life expectancy, we find that the testimony of Dr. Morariu again supports this award. It is clear from the evidence that the claimant sustained permanent brain damage and is incapable of working, and that his condition is worsening. There was no error in the use of claimant’s life expectancy in determining the value of attendant care benefits for the purposes of the attorney fee award. M. Serra Corporation v. Garcia, 426 So. 2d 1118 (Fla. 1st DCA 1983).
With respect to the E/C’s contention that the recently enacted statutory cap on attorney’s fees should apply,1 we note that the E/C cite no authority for their contention that this provision is procedural and remedial, and applies retroactively. On the other hand, claimant’s brief exhaustively sets forth legal support for his contention that a statutory amendment changing the measure of attorney’s fees is substantive, and cannot be applied retroactively. See, Hardware Mutual Casualty Co. v. Carlton, 151 Fla. 238, 9 So. 2d 359 (1942); Sullivan v. Mayo, 121 So. 2d 424 (Fla.1960); Richardson v. Honda Motor Co., Ltd., 686 F.Supp. 303 (M.D.Fla.1988); L. Ross, Inc. v. R. W. Roberts Construction Company, Inc., 466 So. 2d 1096 (Fla. 5th DCA 1985), affirmed, 481 So. 2d 484 (Fla.1986).
to issues raised by the claimant on cross-appeal, we find no error in the JCC’s order commencing attendant care benefits on July 28, 1989, rather than at an earlier date, since the E/C was not on notice of the need for benefits until the date found by the JCC; and we also, con-conto claimant's contentions, find ample support in the record for the JCC’s award of attendant care for eight hours a day, rather than for a longer period as sought by claimant.
Finally, in view of our disposition of the issues as above, we find it unnecessary to address claimant’s contentions regarding the constitutionality of the amendment to § 440.34.
AFFIRMED.
NIMMONS and MINER, JJ„ concur. . Section 440.34(2), Florida Statutes (1989), as amended, effective October 1, 1989, provides that in computing attorney’s fees “benefits secured” shall not include future medical or rehabilitation benefits to be provided on any date more than five years after the date of the hearing held for determining the value of attorney’s fees claimed.
Cases With Similar Vibessemantic neighbors from the corpus
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Paulk v. Sch. Bd. OF Palm Beach Cnty. & Dep't of Risk Mgmt., 615 So. 2d 260 (Fla. 1st DCA 1993)…applied in the present case, where the depositions were taken after the statute’s effective date. We decline to extend the rulings in Foliage Design Systems, Inc. v. Fernandez, 589 So. 2d 389 (Fla. 1st DCA 1991), and Sir Electric, Inc. v. Borlovan, 582 So. 2d 22 (Fla. 1st DCA 1991), to the circumstances of this case. Those decisions, which involved a statutory limit on the measure of attorney’s fees, were largely predicated on the supreme court’s earlier ruling in L. Ross, Inc. v. R. W. Roberts Const. Co.,…
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Foliage Design Sys., Inc. v. Aurora Fernandez, 589 So. 2d 389 (Fla. 1st DCA 1991)…n with the claim for benefits. However, such term, does not include future medical benefits to be provided on any date more than 5 years after the date the claim is filed.” (e.s.) The recent decision of this court in Sir Electric, Inc. v. Borlovan, 582 So. 2d 22 (Fla. 1st DCA 1991), affirmed the same ruling. The opinion references “the recently enacted statutory cap on attorney’s fees” and the argument “that a statutory amendment changing the measure of attorney’s fees is substantive, and cannot be applied…
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Jeremias Antunez v. Whitfield, 980 So. 2d 1175 (Fla. 4th DCA 2008)…ively applied); Foliage Design Sys., Inc. v. Fer [*1179] nandez, 589 So. 2d 389 (Fla. 1st DCA 1991) (amendment that placed a ceiling for computation of attorney’s fees is substantive and cannot be applied retroactively); Sir Elec., Inc. v. Borlovan, 582 So. 2d 22, 23 (Fla. 1st DCA 1991) (“[Statutory amendment changing the measure of attorney’s fees is substantive, and cannot be applied retroactively.”); Volusia Mem’l Park v. White, 549 So. 2d 1114, 1118 (Fla. 1st DCA 1989) (holding that amendment that adds a…
Authorities Cited
- Sullivan v. Mayo, 121 So. 2d 424 (Fla. 1960)
- Hardware Mut. Cas. Co. v. MRS. Ruby Carlton, 151 Fla. 238 (Fla. 1942)
- L. Ross, Inc. v. R. W. Roberts Constr. Co., Inc., 481 So. 2d 484 (Fla. 1986)
- L. Ross, Inc. v. R.W. Roberts Constr. Co., Inc., 466 So. 2d 1096 (Fla. 5th DCA 1985)
- M. Serra Corp. & The Travelers Ins. Co. v. Garcia, 426 So. 2d 1118 (Fla. 1st DCA 1983)
- Richardson v. Honda Motor Co., Ltd., 686 F. Supp. 303 (M.D. Fla. 1988)