Attorney's Fees and Departure from Statutory Schedule
Alderman v. Florida Plastering, 27 FLW D327 (Fla. 1st DCA, Feb. 6, 2002).
This case holds that in determining the amount of an attorney's fee awarded to a Claimant's attorney at the Employer/Carrier’s expense, the JCC must abide by the statutory formula, unless such an award would be “manifestly unfair.”
The Claimant suffered a spinal cord injury which left him permanently and totally disabled. The Employer/Carrier agreed that the Claimant's attorney was entitled to an attorney's fee at the Employer/Carrier’s expense. The Claimant's attorney requested a fee based on the statutory percentages set forth in §440.34(1), Florida Statues. The future value of PTD benefits was over $400,000.00, and a statutory attorney's fee was slightly more than $65,000.00. The Claimant argued that his attorney was entitled to a fee based on the statutory guidelines.
Judge Silvia Medina-Shore (Miami) reduced the attorney's fee to $23,000.00. She held that based on the amount of hours spent by Claimant’s counsel in prosecution of the claim, a statutory fee would result in an award of $847.00 per hour. The JCC held that this was unfair, and awarded a fee approximately one third of the statutory schedule.
The First DCA reversed the JCC and held that the Claimant was entitled to a statutory attorney's fee based on the present value of PTD benefits. The Court noted that §440.34 attempts to limit excessive fee awards by limiting attorney's fees to the percentages set forth in the statue. The Court noted, however, that the statutory fee is deemed presumptively correct. The high fee award in this case, in comparison to the hours spent by Claimant’s counsel, was simply an aspect of the contingent fee arrangement. Even though a statutory fee resulted in a high hourly rate, this is simply the nature of contingent fees.
The Court noted that a Judge of Compensation Claims may increase or reduce the statutory fee by applying the factors set forth in §440.34. An increase or reduction in the fee is appropriate only in exceptional circumstances. The Court held that in this case, the hourly fee customarily awarded in that venue was not relevant to the fee award. The Court noted that an upwards departure from the statutory formula would be appropriate in circumstances that require excessive litigation over relatively minor benefits. This alone is not a sufficient reason to depart downward from the statutory schedule when the award of attorney's fees results in a very high hourly rate. The First DCA therefore reversed the Judge of Compensation Claims, and awarded the statutory fee of $65,000.00.
EDITOR’S NOTE:
This holding approved payment of a very large attorney's fee in relationship to the time spent in pursuing benefits. The Court explained a fundamental rule, however, that Employer/Carriers can use to their advantage in arguing in favor of a statutory fee. In this case, the Claimant's attorney spent very little time in securing PTD. In the more common scenario, the Claimant's attorney is seeking an hourly fee award on the basis that a statutory fee would beunfair. This case notes, however, that the statutory fee is deemed presumptively fair, and departure from the statutory formula is appropriate only in exceptional circumstances. This claim can be used by Employer/Carriers to argue in favor of a statutory attorney's fee award when the Claimant's attorney has successfully secured PTD at Trial, and is seeking a fee on an hourly basis.
This same case was presented to the First DCA prior to this appeal. In Florida Plastering v. Alderman, 755 So. 2d 604 (Fla. 2000), the Supreme Court of Florida held that the Employer/Carrier is not allowed to recalculate offset benefits on a yearly basis to account for annual increases in the Claimant’s collateral benefits.
Denial of Benefits Based on Drug Test
Van Duyn v. Truck Driver Services, Inc., 27 FLW D328 (Fla. 1st DCA, Feb. 6, 2002).
In this case, the Claimant was denied workers’ compensation benefits based on her failure to provide an adequate urine specimen for purposes of a post-accident drug test. Judge Richard Thomson (Orlando) denied benefits based on the Claimant’s failure to submit a post-accident urine sample that complied with requirements set forth in the Florida Administrative Code.
The Claimant was a truck driver who fell and injured her left shoulder, arm, and hand. She was referred to a Walk-In Clinic for care and treatment where she was instructed to provide a urine sample in accord with the Employer’s Drug Free Workplace program. The Claimant provided a sample, but it was below the acceptable temperature range. She was requested to provide a second sample. The Claimant left the clinic before providing a second sample. She testified that she was concerned about her son being home alone after school. She also testified, however, that she was afraid the test may be positive because she had recently been in the presence of several people who had smoked marijuana.
On appeal, the Claimant argued that she was entitled to workers’ compensation benefits because she was not given the opportunity to take a second drug test within 24 hours. The Claimant argued that a rule in the Florida Administrative Code allowed her to return within 24 hours to provide a second sample, but she was not given this opportunity. The First DCA noted that a Claimant is entitled to retake the test within 24 hours, but is afforded this opportunity only after a legitimate effort to provide an acceptable sample at the original test. The Court held that, in this case, the Claimant’s failure to try to give another sample on the date of accident prevents her from asserting the right to a second test within 24 hours. Benefits were therefore denied, and the JCC was affirmed.
March 7, 2002.
