Crawford v. P.C. Thompson Construction Co. 458 So. 2d 812

SMITH, Judge.

We reverse the order awarding only $1250.00 to claimant’s attorney for his services rendered in obtaining a stipulated wash-out settlement of the claimant’s future compensation and medical benefits for the sum of $75,000.

Claimant’s attorney argues, and we agree, that the deputy commissioner was not at liberty to disregard the attorney’s services in representing the claimant in arriving at, negotiating with the carrier, ultimately agreeing upon, and securing the approval of the settlement by the deputy commissioner. That the deputy commissioner did ignore the attorney’s time, effort and beneficial results secured by claimant’s attorney is clear from the orders entered. The initial order, dated January 4, 1984 stated, in part, that other than benefits obtained pursuant to claims requesting reimbursement for mileage and certain medical expenses, “it has not been demonstrated to the undersigned that Claimant’s attorney has obtained any benefits not voluntarily paid either to Claimant or in behalf of Claimant by the Employer/Carrier.” In ruling on claimant’s attorney’s motion to vacate that order, the deputy commissioner again refused to consider the claimant’s attorney’s services in connection with the wash-out, and to clarify his refusal, amended the January 4, 1984 order by adding an additional paragraph, stating:

9. The undersigned is of the opinion that under the circumstances of this *813case, there is no binding authority for the undersigned to award claimant’s attorney an attorney’s fee from the employer/carrier based upon the agreement between the employer/carrier and claimant and the claimant’s attorney that claimant’s attorney was to be paid an attorney’s fee from the employer/carrier for his services in negotiating and obtaining a wash-out settlement for claimant. See Sullivan v. Mayo, 3 FCR 165. Therefore as to the fee awarded herein, no consideration has been given to claimant’s attorney’s services in obtaining the wash-out amount or in the time he may have spent in that endeavor.

The deputy commissioner misconceived his role in ruling upon the fee to be received by claimant’s attorney. The attorney’s entitlement to reasonable attorney’s fees payable by the carrier for his services in connection with the wash-out settlement became vested when the deputy commissioner approved the stipulated settlement. The agreement for attorney’s fees, which was incorporated in the joint petition for approval of the stipulation and settlement, provided:

8. The claimant has been represented by Thomas W. Davis, Esquire, and the parties agree that Mr. Davis is due a reasonable fee for his services. The amount of the fee is to be determined by the Deputy Commissioner if the parties are unable to agree upon a fee. The Deputy Commissioner may take into consideration Affidavits to be filed and all other relevant factors in determining a reasonable fee to be paid to Mr. Davis by the Carrier.

We cannot agree that in devoting the necessary time to the investigation and analysis of a case, and in undertaking the responsibility of advising a claimant in connection with the securing and acceptance of a wash-out settlement, a claimant’s attorney performs no legal services worthy of remuneration. Neither do we find applicable Sullivan v. Mayo, 106 So.2d 4 (Fla. 1st DCA 1958), a case dealing with the statutory obligation of the carrier under Section 440.34, Florida Statutes (1957) to pay claimant’s attorney’s fees in a lump sum settlement proceeding. The issue before the deputy commissioner here was not whether the law imposed a legal obligation upon the E/C to pay claimant’s attorney’s fees. The legal obligation to pay such fees had already been settled, as a contractual matter, by the execution of the joint stipulation and petition for settlement. The approval of this settlement agreement, including the obligation to pay attorney’s fees, is uncon-troverted. The only issue remaining for the deputy commissioner was to determine the amount of the fee to be awarded to claimant’s attorney. The position of the deputy commissioner was no different than in any other legal proceeding in which the parties agree upon liability for attorney’s fees, leaving the amount to be determined by the court if not otherwise agreed upon between them.

Although the error apparent on the face of the orders entered by the deputy commissioner alone warrants reversal, one additional aspect of the case merits consideration. The order approving the settlement was entered November 8, 1983. The E/C, without waiting for claimant’s attorney to submit a statement or affidavit pertaining to his services rendered, filed an affidavit made by an attorney who stated that he had “reviewed correspondence from the Carrier relative to the participation by Mr. Davis in the settlement of the case and in representing Mr. Crawford_” This affidavit, dated November 18, 1983, was premature. It did not and could not have taken into consideration the statements of fact relative to services rendered by the claimant’s attorney as contained in his affidavit, which was subsequently executed on November 28, 1983, and filed with the deputy commissioner. Examination of the carrier’s file no doubt would be adequate to apprise an attorney of certain essentials regarding the case; nevertheless, we are persuaded that review of the carrier’s file alone cannot be determinative of the extent of the legal services rendered by the claimant’s attorney.

*814Accordingly, the amended order of February 2, 1984, is reversed insofar as the amount of attorney’s fees payable by the carrier to claimant’s attorney is fixed at $1,250.00, and the cause is remanded for the award of a reasonable attorney’s fee consistent with the mandates of this opinion.

BOOTH, J., concurs.

THOMPSON, J., dissents with written opinion.

THOMPSON, Judge,

dissenting.

I dissent. I would affirm the award of the $1,250 attorney’s fee to claimant’s attorney.

Claimant sustained a compensable injury on October 9, 1974 and the carrier timely commenced payment of temporary total disability (TTD) benefits. The claimant was furnished medical treatment including four operations on his back, the last of which was in July 1978. The attorney who formerly represented the claimant filed a claim for PTD, future medical and attorney’s fees and costs on January 28, 1978 before claimant reached maximum medical improvement (MMI). On September 13, 1978 the employer/carrier (E/C) accepted claimant as permanently totally disabled (PTD) as of July 13, 1978. On December 5, 1978, the same deputy that entered the order appealed from here entered an order finding that the E/C had voluntarily accepted the claimant as PTD, that the claimant had not reached MMI and that no disability rating had ever been assigned by any physician of whom the claimant or the E/C’s attorney was aware before the E/C accepted the claimant as PTD. The deputy further found that motion for assessment of attorney’s fees and costs should be denied. This order was appealed and affirmed by order of the Industrial Relations Commission. Certiorari was denied by the Supreme Court of Florida on May 16, 1980.

Sometime subsequent to 1978, and before November 11, 1982, the claimant retained his present attorney of record who filed a claim for compensation requesting reimbursement for mileage and miscellaneous expenses relating to the receipt of medical care. This claim was disposed of without the necessity of a hearing. The present attorney also filed a claim for medical benefits on May 11, 1983 claiming two hospital bills totaling $70 and one doctor's bill for $101.85 had not been paid. A review of the file showed that those bills had been paid by the E/C. Giving the benefit of the doubt to the claimant’s attorney, the only beneficial service he had rendered the claimant at this stage was the nominal amount of mileage and other miscellaneous expense relating to medical care he obtained as a result of the November 11,1982 claim. An attorney’s fee for these services, if one was due, should have been awarded at that time. There is no basis for the award of a fee for those services as a result of the parties’ stipulation to pay a reasonable fee for services rendered by claimant’s attorney in connection with the washout settlement. The claimant’s attorney did negotiate a washout settlement with the E/C and as a part of the settlement it was stipulated that the claimant’s attorney would receive a reasonable fee for his services in negotiating the washout. The E/C had already accepted the claimant as PTD and was currently paying him PTD benefits. This is a case where the E/C promptly accepted the claim and promptly began the payment of TTD benefits. The E/C also promptly paid all other benefits including very substantial medical benefits for four back operations. The E/C timely accepted the claimant as PTD and was paying PTD benefits to the claimant at the time the washout settlement was negotiated. The claimant’s attorney did not obtain any additional benefits as a result of the washout settlement but merely obtained a lump sum settlement of the balance of the PTD benefits due reduced to present value in return for a irrevocable settlement of all future claims of the claimant. $1,250 is a reasonable fee for those services.

I do not think that it comports with the spirit of the workers' compensation act to penalize a carrier which has timely per*815formed its obligations under the act by assessing it a large fee for a lump sum settlement of an amount it has already agreed to pay and is paying and to further assess the carrier with a larger than normal $2,500 fee on appeal.

Although the deputy may have based his decision on incorrect reasons, his conclusion that a $1,250 fee was reasonable was correct, and I would affirm.