558 So. 2d 461 | Fla. Dist. Ct. App. | 1990
Lead Opinion
Claimant appeals a workers’ compensation order awarding her an attorney’s fee of $75,000.00; 12 percent interest on unpaid medical bills and costs; and allowing the employer/carrier (EC) a credit against future compensation due in the amount of $25,000.00 which was paid in partial settlement of claimant’s tort action against various parties. We affirm in part and reverse in part.
The claimant contends: (1) that when the EC denies coverage to a permanent totally disabled claimant on the basis that the claimant’s injuries did not occur within the scope and course of her employment, the attorney’s fees awarded to claimant in successfully defeating the EC’s contentions should be based on the present value of all past and future benefits paid on behalf of or received by the claimant, including the present value of all future remedial care and attendant care; (2) that the claimant is entitled to interest on all sums paid to her, or on her behalf, which interest is to be computed from the date the sums should have been paid, to the date actually paid, where the EC has unsuccessfully denied coverage; and (3) that Aetna Life & Casualty (Aetna) failed to offer any proof that any sums were paid by Travelers Insurance Company (Travelers) on behalf of Maharaja of India, Inc. (Maharaja) and that Aetna was not therefore entitled, as a matter of law, to any setoff. The EC contend on cross-appeal that they are entitled to a $125,000.00 offset, the total amount received by the claimant in settlement of her tort action, rather than the $25,000.00 offset provided by the final order.
Approximately nine months after the accident claimant filed a civil suit in circuit court for her personal injuries against the employer, its automobile insurer, her coworker, her coworkers’ insurer and Toyota, as well as against Manu and Kumar Samta-ni (Samtanis), the individuals who formed the corporate employer, and against another corporation, Vaco, Inc., which was also formed by the Samtanis. Claimant contended the accident did not arise out of and in the course of her employment and that she could therefore sue her employer and coworker. By amended complaint the insurers were subsequently dropped as parties. In December 1984 claimant entered into a settlement agreement with all of the defendants except Toyota. The claimant’s products liability suit against Toyota eventually resulted in a defense verdict.
On January 7, 1985, claimant filed a claim for remedial treatment, temporary total disability (TTD) and permanent total disability (PTD) benefits and an application for hearing. The EC denied that the claimant was injured in an accident arising out of and in the course of her employment as claimant had refused benefits and pursued a civil action against her. employer, her coworker and others. As a result, the EC argued claimant was now estopped from claiming workers’ compensation benefits. The Judge of Compensation Claims (JCC) dismissed the claim with prejudice finding that although claimant was injured in the course and scope of her employment, she had elected her remedy by pursuing a circuit court action and was thereby estopped from asserting entitlement to workers’ compensation benefits in light of her circuit court denial that she was injured in the course and scope of her employment. The claimant appealed, and by a decision rendered March 18, 1986, this court reversed the dismissal of the claim. Greene v. Maharaja of India, 485 So.2d 1329 (Fla. 1st DCA), review denied, 494 So.2d 1151 (Fla.1986) (Greene I). After the Supreme Court of Florida denied review of this court’s decision the cause was remanded to the JCC for further proceedings.
The EC then accepted the claimant as TTD, provided nursing services and agreed to pay claimant’s medical bills. On September 10, 1987, claimant was accepted as PTD. The remaining claim, for an increase in the amount of attendant care benefits for claimant’s mother, was dropped at the hearing. Therefore, the final hearing held December 8, 1987, concerned only the issues of the amount of attorney’s fees and costs due claimant.
On the attorney’s fee issue, claimant’s attorney, Robert B. Staats, testified he has handled claimants’ workers’ compensation cases for 22 years. He has represented the claimant since 1983, although her civil suit was handled as a separate case. Staats submitted three affidavits. The first showed payments of Aetna to the claimant totaling $319,697.91, as well as $20,744.50 claimed but unpaid. The second affidavit reflected' Staats’ costs expended totaling $121,270.74 and time expended of 448.58 hours. An additional affidavit added 101.-25 hours. Staats testified that the claimant’s civil settlement was comprised of $100,000.00 from Travelers; $15,000.00 from Kumar and Manu Samtani, individually; and $10,000.00 from State Farm Fire and Casualty Company (State Farm), the insurer of claimant’s coworker who was driving the car at the time of the accident. Staats’ office received one-third of the settlement as its contingency fee. His normal hourly rate is $125.00-150.00, but the claimant’s case was taken on a total contingency basis. The case was novel in that it represented both unique factual and legal issues. He had never represented a quadriplegic before, and the claimant was insistent that the money be obtained quickly so that she could undergo experimental surgery in New York. The customary hourly rate in the community for compara
Stephen Marc Slepin testified on behalf of the claimant that he is an attorney with 20 years experience in administrative and workers’ compensation law. In reaching his opinion as to a reasonable attorney’s fee he took into consideration the claimant’s life expectancy as a quadriplegic, the value of nursing services and the fact that all benefits were “denied by Aetna,” and that “all benefits were won by claimant’s counsel.” He also applied all the factors to be considered pursuant to Chapter 440: the contingency nature of the claim, length of representation, hours expended, hourly rates, the “landmark decision” in the prior appeal, and the claimant’s counsel’s reputation and skill. Total benefits to date are $340,000.00, and total lifetime benefits are estimated to be $3,884,689.00. He found that 350 hours, “a conservative figure,” would be a reasonable amount of time to have been expended on the case. A reasonable fee would be $646,936.43, with the lowest possible fee being $475,000.00, and the highest being $713,000.00. He included the time Staats spent preparing for the attorney’s fees hearing. If attendant care benefits were excluded, a reasonable fee is $375,000.00
Douglas Brown testified on behalf of the EC that he is an attorney with 21 years experience in workers’ compensation cases and that he has reviewed the record. Considering Lee Engineering & Construction Company v. Fellows, 209 So.2d 454 (Fla.1968), and the statutory factors in § 440.34, Fla.Stat., he determined that a reasonable fee would be $50,000.00. He based this figure on the fact that this case was somewhat unusual because of the novelty and difficulty of the question presented by the prior appeal, although he discounted the time actually spent on the appeals based on the assumption that the District Court of Appeal and the Supreme Court had awarded a fee. Excluding the appellate proceedings, 100-150 hours would be a reasonable number to expend. He does not believe the employment by the claimant would preclude any other employment or antagonize current clients. Fees sought in such cases are usually based on the statutory fee schedule of $200.00 per hour. Due to the severe nature of claimant’s injuries, the demands placed on the attorney would be greater than usual because of the emotional component of such a devastating injury. The amount in controversy calculated by Brown included disability and medical benefits but excluded attendant care because the EC paid it before any claim was ever filed, and the claim proceeded to hearing with the EC not controverting the claimant’s entitlement to attendant care. Brown stated it was difficult to estimate the present value of future medical care because the only doctor to discuss this issue expressed disagreement with several items listed as future costs by the rehabilitation consultant. Brown made a general estimate of the value to be $250,000.00. As for the length of Staats’ relationship with the claimant as a client, the case was a “one-shot representation.” Staats’ ability and experience are highly regarded, and the fee in such a case would be totally contingent. The fee was also based on Brown’s belief that despite the separate natures of the civil suit, the third party action, and the worker’s compensation
Based on the evidence at final hearing the JCC entered his order. This appeal and cross-appeal followed.
The JCC awarded a $75,000.00 fee, discussing in detail each of the elements of § 440.34 and Lee Engineering. In particular, the JCC found that 175 hours were reasonable to prosecute the claim and that the highest reasonable hourly rate would be $300.00. As to the determination of the amount in controversy, the JCC found that no fee was due on benefits voluntarily and timely paid, but that all benefits reasonably and predictably flowing from an award should be considered, and that which benefits are “reasonably predictable” depends on the scope of the issues litigated. The JCC noted all benefits were initially offered to claimant, but were refused despite the fact that claimant could have accepted the benefits and pursued her civil claim against the third-party tort-feasors. After the pri- or appeal became final, the JCC found that the EC voluntarily paid attendant care, home modifications, TTD benefits, and then accepted the claimant as PTD. The original workers’ compensation hearing concerned medical bills and TTD benefits only. The JCC specifically took into consideration the time spent in obtaining the benefits voluntarily paid by the EC. The JCC also stated that the evidence of claimant’s future medical expenses was not helpful, as the testimony provided by rehabilitation consultant Lawrence Forman was overstated and unsupported by medical testimony, and that no attempt was made to reduce future medical costs to the maximum fee schedule, and claimant’s attorney used a two percent, rather than a four percent discount factor to reduce further medical benefits to present value. Locke v. Rooney, 508 So.2d 467 (Fla. 1st DCA 1987); Department of Health and Rehabilitation, Division of Risk Management v. Lucas, 466 So.2d 1269 (Fla. 1st DCA 1985). The JCC concluded the amount in controversy for the purpose of determining an attorney’s fee was $320,000.00. He specifically accepted the expert testimony of Douglas Brown as “more convincing and realistic,” but added an additional increase in the fee estimate due to Brown’s apparent failure to take into consideration the time spent negotiating the post-appeal settlement with the EC. Accordingly, the JCC found a $75,000.00 fee to be reasonable.
There is competent substantial evidence to support the amount of the attorney’s fee awarded. There are substantial differences in the evidence as to a reasonable fee in this case, but the JCC found the testimony of the expert Brown “more convincing and realistic.” One of the principal reasons for the difference in the testimony as to the amount of a reasonable fee was a result of the claimant’s witnesses including the attendant care benefits received and to be received as a part of the amount in controversy and the benefits obtained. Attendant care benefits were timely and voluntarily paid by the EC and were not one of the benefits litigated. Although there was some question as to the daily rate, claimant abandoned her claim for an increase in the daily rate for attendant care benefits and the sole issue at the final hearing was the amount due for an attorney’s fee. The JCC noted that all benefits were initially offered to the claimant but were refused, and that the EC also timely and voluntarily accepted the claimant as PTD and that those benefits were not in controversy. The JCC stated that the evidence of claimant’s future medical ex
The JCC found that 175 hours was a reasonable number of hours to prosecute the case, and appellant has not argued on appeal that this finding was in error. Although the attorney for the appellant and her expert witness testified that a reasonable hourly rate was $150.00, the JCC used an hourly rate of $300.00 resulting in a $52,500.00 fee. The JCC then increased the fee awarded to $75,000.00 or almost three times the amount of the fee that would have resulted from the appellant’s testimony on the hourly rate. Nevertheless, appellant’s attorney contends he is entitled to the reasonable fee testified to by his expert witness Slepin in the amount of $646,936.00, which is $3,696.00 per hour or more than 24½ times more than the hourly rate testified as reasonable. He argues that in any event he is entitled to 15 percent of $3,357,749.00 which he contends is the minimum amount of benefits he obtained, or a total fee of $503,662.00. This would result in an hourly rate of $2,878.00, which is more than 19 times the hourly rate reflected by the claimant’s testimony. In either case, the hourly rate resulting from such fees is unconscionable. The standard of review to be applied by this court is whether there is any competent substantial evidence to support the JCC’s award. There is competent substantial evidence to support the award. The JCC carefully spells out in his order the reasons he accepted the testimony of certain witnesses over that of other witnesses and how he reached his decision as to the benefits obtained by the appellant’s attorney. Even if he reached the right conclusion for the wrong reason, and awarded a reasonable fee his decision should be affirmed. Henriquez v. Publix Super Markets, Inc., 434 So.2d 53 (3d DCA 1983). However, his decision is correct factually and as a matter of law.
The JCC correctly ruled that the claimant was not entitled to interest on unpaid medical and hospital bills which had not been presented at the April 18, 1985, hearing. The claimant withheld these unpaid bills from the EC and is not entitled to interest on the withheld bills.
The JCC also correctly found that there was no proof that the $100,000 paid by Travelers was paid on behalf of the employer or claimant’s eoworkers, and therefore Aetna was not entitled to any credit or offset against the payment of future workers’ compensation benefits for any portion of the $100,000 paid by Travelers in settlement of the law action filed by the claimant. Although it would clearly appear that the EC would be entitled to a credit or offset of the $10,000 paid by State Farm on behalf of its insured, a coworker, the prior decision of this court in the case of Greene I did not mention any credit or offset for any payment made in the settlement except that of Travelers, and credit for that was contingent upon a showing that the amount credited was paid on behalf of the employer. Greene I established the law of the case on this issue and we therefore hold that the JCC erred in allowing Aetna credit for the $10,000 paid by State Farm and $15,000 paid by the Sam-tanis. The order appealed is affirmed as to the reasonable attorney’s fee awarded, the denial of interest on withheld medical and hospital bills, and on the denial of a credit to Aetna for any portion of the $100,000 paid by Travelers. It is reversed as to the credit awarded the EC for the law action settlement payment of $10,000 by the State Farm and the $15,000 paid by the Samtan-is.
AFFIRMED in part, REVERSED in part.
Concurrence in Part
concurring and dissenting.
I concur with all aspects of the majority’s opinion except that portion affirming the judge of compensation claims’ (JCC) order which, in calculating a reasonable attorney’s fee pursuant to the statutory fee formula, excluded attendant care benefits from the amount of benefits secured on behalf of the claimant. In entering his order awarding an attorney’s fee of $75,-000, the JCC took into consideration only $320,000 of benefits obtained by claimant’s attorney, excluding therefrom more than $3 million of the present and reasonably predictable future value of attendant care benefits. The JCC reasoned that exclusion of such benefits was justified on the separate grounds that attendant care benefits were not within the scope of the issues litigated, because they had not been claimed or litigated at the earlier claim proceeding, and the claimant had initially rejected workers’ compensation benefits which the carrier had voluntarily offered to her, notwithstanding that the offer was later withdrawn after the claim was filed.
Referring to the first reason advanced by the JCC, that attendant care benefits were not specifically requested, and hence were not within the scope of the issues litigated, I consider it important to note that the JCC’s ruling disregarded a number of cases from this court recognizing the self-executing nature of the Workers’ Compensation Law, requiring the employer/carrier (E/C) to monitor continuously the claimant’s progress, thereby imposing a continuing obligation on the E/C — once it has knowledge of the injury and knows, or reasonably should know from the facts investigated, that benefits are due — to place needed benefits in the hands of the worker. See, e.g., Sistrunk v. City of Dunedin, 513 So.2d 200 (Fla. 1st DCA 1987) (Section 440.-13, Florida Statutes, requires the E/C to provide attendant care benefits, even though not requested, if the nature of the injury requires the payment of same); Walt Disney World Co. v. Harrison, 443 So.2d 389 (Fla. 1st DCA 1983) (employer’s defense that it was not obligated to pay attendant care benefits to an injured employee before receipt of the treating physician’s letter formally requesting such benefits, was rejected on the ground that the employer knew or should have known that such benefits were due).
In the case at bar the E/C was on notice shortly following the January 20, 1983 catastrophic injury to claimant that she would no doubt require attendant care benefits for the remainder of her natural life.
Thus, there is a major distinction between a case such as Samurai of the Falls, Inc. v. Sul, 509 So.2d 359 (Fla. 1st DCA), review denied, 518 So.2d 1274 (Fla.1987), relied upon by the JCC below, in which the E/C did not defend against a claim on the basis that it was noncompensable, and Polote Corp. and the instant case, in which the carriers denied compens-ability. In Samurai of the Falls, Inc., the JCC erroneously included wage-loss benefits that the E/C had voluntarily paid in the total value of benefits secured through the attorney’s efforts, overlooking the fact that the attorney’s efforts had been directed only to achieving temporary total disability benefits and a change in the compensation rate. Compare also the facts in Barr v. Pantry Pride, 518 So.2d 1309 (Fla. 1st DCA 1987), review denied, 525 So.2d 876 (Fla.1988), wherein this court affirmed that portion of the JCC’s order which had refused to permit the payment of an attorney’s fee relating to the reasonably predictable value of future permanent total disability benefits on the ground that the carrier had voluntarily paid such benefits. The important distinction, however, between the facts in Barr and those in the present- case is that in Barr the carrier never denied the claim’s compensability and had made regular payments of temporary total disability benefits to claimant up to the time that it accepted her as permanently, totally disabled.
In the case on review, because the only issue litigated before the JCC at the initial claim proceeding was the compensability of the claim, I consider that the E/C’s denial of the claim on such ground also had the effect of denying its responsibility for paying all of the benefits that were then owing or might later reasonably be sought. Therefore, in determining the value of the benefits secured, it is immaterial whether the carrier at a later date agreed to pay the benefits before that issue came on for hearing. A similar factual scenario was before this court in Groves v. Butler, 525 So.2d 1003 (Fla. 1st DCA 1988), in which we rejected the carrier’s argument that it should not be held responsible for paying a fee awarded on a percentage of benefits secured that included the value of permanent total disability benefits voluntarily paid after a finding of compensability had been entered. In approving the fee, we observed that “it is unlikely this voluntary acceptance would have occurred without the intervention of claimant’s attorney.” Id. at 1004. Applying the above reasoning to the case at bar, I consider it was necessary for the JCC to include all the past and reasonably predictable value of all future attendant care benefits within the amount of benefits secured to the claimant through her attorney’s efforts, because such benefits were the natural and probable consequence that flowed from the finding of compensability.
Alternatively, even if we were to accept the E/C’s apparent argument that it must be given specific written notice of the claim for attendant care benefits, despite substantial case law to the contrary, the record reflects that after remand of the case following this court’s mandate in Greene v. Maharaja of India, 485 So.2d 1329 (Fla. 1st DCA), review denied, 494 So.2d 1151 (Fla.1986) (Greene I), when claimant, on April 15, 1987, served notice on the carrier of the claim hearing, she specifically asserted in the notice that one of the issues to be decided was claimant’s entitlement to attendant care benefits.
As to the second reason advanced by the JCC for his refusal to include the value of attendant care benefits within those ob.tained by the efforts of claimant’s attorney, the JCC observed that claimant initially refused the benefits that the carrier had voluntarily offered to her, and therefore such benefits were not obtained for the claimant through the attorney’s efforts. In excluding those benefits, the JCC in my view fell into the same error as did the JCC whose earlier order we reversed in Greene I. There, in determining the claim to be noncompensable, the JCC had reasoned that the claimant, by initially refusing compensation benefits, was equitably estopped from later pursuing a claim for such benefits, because she had earlier taken a contrary position in her personal injury claim that she was not acting within the course and scope of her employment at the time of accident. Compare the following language from the JCC’s order now on review:
In order to be “reasonably predictable,” the benefits upon which a fee is sought must result “from the scope of the issues litigated.” The “scope of the issues litigated” in this instance beeome[s] particularly significant since all benefits were originally offered to the claimant but refused. The claimant could have accepted the benefits offered and still pursued her claim against the employer and others in a civil cause of action.
I thought this court in Greene I had finally laid to rest any lingering belief that the claimant was estopped from pursuing a claim for workers’ compensation if she had first brought a personal injury action against her employer for damages, rather than seeking workers’ compensation benefits. In Greene I, following the rule stated in Tremonte v. Jersey Plastic Molders, Inc., 190 N.J.Super. 597, 601-02, 464 A.2d 1193, 1195-96 (Super.Ct.App.Div.1983), we unequivocally held that such benefits cannot be waived by an injured employee’s acceptance of payment from her employer in satisfaction of a common law tort action for damages. Despite our holding in Greene I, the JCC’s order below and the majority’s opinion continue to iterate as a basis for excluding attendant care benefits the reason that all benefits were initially offered to the claimant but were refused. Neither the JCC nor the majority, however, mention the fact that the “voluntary” offer of the carrier was revoked after the worker pursued her personal injury action, and that the carrier thereafter steadfastly resisted paying any benefits until the Florida Supreme Court had denied review of our decision holding the claim compensable.
I do not wish to imply that the JCC does not have the discretion under Section 440.-34(1), Florida Statutes (1981), to adjust an attorney’s fee award. The exercise of this discretion, however, does not come into play until the JCC has properly determined the amount of benefits secured, because this amount is a necessary starting point and a significant factor in the analysis of an appropriate attorney’s fee award. See Mt. Sinai Medical Center v. Samuels, 453 So.2d 82 (Fla. 1st DCA 1984). Moreover, a departure from the statutory percentage formula should be made only in exceptional circumstances. See Fiesta Fashions, Inc. v. Capin, 450 So.2d 1128 (Fla. 1st DCA 1984). This is because the fee formula, as provided in section 440.34, “embodies a legislative intent to standardize the method for assessing fees absent special circumstances, and when a [JCC] departs from the statutory schedule, his order should reflect that he [has] considered all the relevant, prescribed factors to the extent that circumstances permit.” Fumigation Dep’t & Claims Center v. Pearson, 559 So.2d 587, 590 (Fla. 1st DCA 1989) (motion for rehearing pending).
I would therefore reverse the attorney’s fee awarded and remand the case to the JCC with directions that he include within the value of the benefits secured by claimant’s attorney the reasonably predictable value of all attendant care benefits that
. There was evidence at the hearing seeking attorney's fees that claimant, a quadriplegic then nearly 28 years of age, had a life expectancy of 68 years.
. The request for attendant care benefits did not proceed to hearing in that the request was eventually accepted by the carrier, and past due benefits in the amount of $213,370 were paid in one lump sum in July 1987, pursuant to the parties' stipulation, which agreed that claimant was entitled to $1,109 per week from the date of the accident through the week ending March 23, 1987, excluding periods of hospitalization, and $987 per week thereafter and continuing.