Attorney Fee Update – 8/11/16
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UPDATE ON ATTORNEY’S FEES – HOW MUCH ARE THE COURTS AWARDING?
The following is an update on JCC and DCA attorney fee decisions published in July 2016, following the Florida Supreme Court’s opinion in Marvin Castellanos v. Next Door Company, et al, 41 Fla. L. Weekly S 197 (Fla. April 28, 2016).
Many of these decisions focus on the appropriate hourly rate for attorney fee time in a specific District or for a particular attorney.
Barbara Holcomb v. Lowe’s Store 2367/Sedgwick CMS
JCC Rosen; Panama City District; Order Date: July 8, 2016
OJCC Case: 12-016306LAR; D/A: 9/13/2011
Claimant’s Counsel: John B. Carr and Ted J. Troxel
Employer/Carrier’s Counsel: Steven E. Oole
Briefly: ATTORNEY’S FEES – JCC Rosen awarded a guideline attorney’s fee in the amount of $12,744.55, and found there was no reason to depart from the statutory fee schedule. The Employer/Carrier argued an hourly rate would have resulted in a lesser fee.
Summary: The JCC found the amount paid for surgery by the Employer/Carrier was clearly secured through the efforts of the attorney for the claimant and the Employer/Carrier presented no compelling reason to depart from the fee schedule in F.S. §440.34.
The Employer/Carrier argued the fee schedule affords too great a fee and that the fee should be based on 10.9 of attorney time and 17.5 support staff hours. The Employer/Carrier argued a guideline fee, as awarded, would result in an hourly rate of $1,000.00 per hour for claimant’s counsel.
Ana M. Escobar v. Miami-Dade County Public Schools/Sunset Elementary/Gallagher Bassett Services, Inc.
JCC Castiello; Miami District; Order Date: July 8, 2016
OJCC Case: 12-012581GCC; D/A: 2/2/2012
Claimant’s Counsel: Alejandro Zaldivar
Employer/Carrier’s Counsel: Liane T. Alvarez
Briefly: ATTORNEY’S FEES – JCC Castiello awarded the claimant $9,030 in attorney’s fees and found the Employer/Carrier failed to timely file a response to the claimant’s verified petition
Summary: The JCC found the Employer/Carrier failed to timely file a response to the claimant’s verified petition under Rule 60Q-6.124(3), requiring the Employer/Carrier to file a response within 30 days. Accordingly, the JCC accepted as true the facts and ultimate conclusions stated in the verified petition. The JCC did not elaborate on the specific facts or conclusions set forth by claimant’s counsel in the verified petition.
Mary Annice Heinle v. Miami-Dade Public Schools/Miami-Dade Public School Board/Gallagher Bassett Services, Inc.
JCC Kerr; Miami District; Order Date: July 11, 2016
OJCC Case: 09-005410MGK; D/A: 5/5/2004, 8/20/2005, 8/31/2005, 10/7/2008, 9/27/2010
Claimant’s Counsel: Mario Arango
Employer/Carrier’s Counsel: Letticia Coleman
Briefly: ATTORNEY’S FEES – JCC Kerr awarded an attorney’s fee in the amount of $92,446.25 based on 284.45 hours of time at an hourly rate of $325, including time spent by claimant’s counsel in attendance at events related to the Excess Carrier’s Claim for Exoneration.
Summary: The JCC found that a total value of the benefits secured amounted to $17,401.46 and that a guideline fee on that amount would be $1,753.40. The JCC noted the case has been “extremely heavily litigated” and cited over 626 items on the OJCC docket. The JCC attached to the order the claimant’s time sheets where the JCC ruled on objections raised to each entry based on her review of the verified petition and affidavit, the response, objections field by the Employer/Carrier, and the testimony of claimant’s counsel.
Claimant’s counsel testified he has been awarded fees of $300-350 per hour in the Miami-Dade County area, and sought a fee based upon the $350 hourly rate. The Employer/Carrier argued the customary fee in the community is $225 per hour. The JCC found claimant’s counsel had to overcome the strenuous defense to the claims raised by the Employer/Carrier and ultimately obtained benefits for his client, which were previously denied, and that an hourly rate of $325 was reasonable. The JCC found that benefits obtained included compensability of a lumbar condition for all dates of accident and reissuance of the “stop aged” check.
The JCC found there was fee entitlement for claimant’s counsel’s attendance at depositions regarding a dispute between the Carrier and the Excess Carrier up through March 11, 2016, under F.S. §440.30. On this issue, claimant’s counsel argued there was no option but to attend this litigation, particularly before March 11, 2016, when the issue was bifurcated. The JCC took into account the Employer/Carrier’s argument that litigation between carriers did not result in a direct benefit to the claimant.
Rickey Meloche v. Able Lawnmowers Sales & Service, Inc./Associated Industries Company/AmTrust North America of Florida
JCC D’Ambrosio; West Palm Beach District; Order Date: July 12, 2016
OJCC Case: 15-027263MAD; D/A: 10/9/2015
Claimant’s Counsel: Christine Tomasello
Employer/Carrier’s Counsel: David R. Rigell
Briefly: ATTORNEY’S FEES – JCC D’Ambrosio denied entitlement to attorney’s fees where the Employer/Carrier immediately responded to the Petition for Benefits with authorization of a pain management physician as requested and an appointment was scheduled with the doctor 56 days after the date the Petition was filed.
Summary: The claimant filed a Petition for Benefits on December 30, 2015, seeking authorization, payment, and provision of an appointment with a board-certified pain management physician. On December 31, 2015, the Employer/Carrier filed a Response to the Petition for Benefits indicating Dr. Mark Rubenstein was authorized and that appointment letters were being sent under separate cover. On January 7, 2016, eight days after the Petition for Benefits was filed, the Employer/Carrier issued a letter to the claimant advising him of the appointment with Dr. Rubenstein which was set for February 23, 2016, 56 days after the Petition for Benefits was filed.
The claimant contended that more than thirty days elapsed between the time he filed his Petition for Benefits and the actual provision of the benefit itself and, therefore, the claimant met the requirements of F.S. §440.34(3), entitling the claimant to recover a reasonable attorney’s fees from the Employer/Carrier. In response, the Employer/Carrier argued medical benefits were provided at the time the carrier communicated the name of the physician who was authorized to treat the claimant.
The JCC accepted the position of the Employer/Carrier and found the Employer/Carrier did not deny the request outright, ignore the request, or fail to act in a timely manner within the prescribed thirty-day period. The JCC cited various 1st DCA decisions uniformly holding that medical benefits are deemed furnished or provided when the Employer/Carrier or Servicing Agent communicates the name of the physician who is authorized to the claimant or the claimant’s attorney. The JCC explained these cases reject the notion that a medical appointment sought via a Petition must actually be scheduled to take place within the specific time, much less thirty days, in order to be considered “furnished” for the purposes of meeting the requirements of F.S. §440.34(3).
Adrienne Silver v. Harry M. Stevens /Liberty Mutual Insurance
JCC Kerr; Miami District; Order Date: July 15, 2016
OJCC Case: 13-028408MGK; D/A: 1/23/1976, 9/20/1977
Claimant’s Counsel: Joseph Hackney
Employer/Carrier’s Counsel: Eugene P. Flinn
Briefly: ATTORNEY’S FEES – JCC Kerr ordered the Employer/Carrier to pay Mr. Hackney $5,025.00 in reasonable attorney’s fees for securing benefits based on 16.75 hours of attorney time at $300 per hour.
Summary: The JCC found the Employer/Carrier stipulated to fee entitlement for obtaining payment of the bills from Dr. Arrandt and mileage reimbursement. The parties stipulated the value of these benefits is $1,149.54, resulting in a statutory fee of $287.39.
The JCC found that claimant’s counsel is highly skilled and professional and was required to litigate a matter previously the subject of an Order approving a stipulation of the parties and that a reasonable hourly fee is $300 under these circumstances.
Salvador Reyes v. Coinmach Service Corporation/Sedgwick CMS
JCC Sojourner; Lakeland District; Order Date: July 18, 2016
OJCC Case: 15-009313MES; D/A: 10/17/2014
Claimant’s Counsel: A. Dawn Hayes
Employer/Carrier’s Counsel: Bettina Carrier
Briefly: ATTORNEY’S FEES – JCC Sojourner ordered the Employer/Carrier to pay claimant’s counsel $15,431.00 as a reasonable attorney’s fee based upon 61.8 hours of reimbursable attorney time and 21.8 hours of paralegal time. The JCC found the appropriate hourly rate for attorney time is $225 and $70 for paralegal time.
Summary: The JCC found that benefits obtained amounted to $38,798.26 which would result in a statutory guideline fee of $4,629.83. The JCC also found the customary fee charge in the locality ranged from $200-$275 per hour, but the appropriate hourly rate in this matter is $225 for attorney time.
The JCC considered the fact that some of the issues were resolved at mediation and the issues for the final hearing were not novel. The JCC found the benefits obtained were significant in amount, and that litigation was required to resolve the issues. The JCC also found that the statutory fee amount is significantly less than the customary amounts charged.
Raul Amaro v. Barnett Management, Inc.
JCC Weiss; Ft. Myers District; Order Date: July 20, 2016
OJCC Case: 13-027235KAS; D/A: 8/19/2013
Claimant’s Counsel: Steven M. Meyers
Employer’s Counsel: Daniel Stoller
Briefly: ATTORNEY’S FEES – JCC Weiss awarded attorney’s fees based upon 54.6 hours of attorney time at an hourly rate of $275, resulting in an attorney’s fee of $15,000.15 for obtaining benefits in the amount of $6,200.00.
Summary: The benefits obtained in this case included $5,000.00 for epidural injections and $1,200.00 for past indemnity benefits. Employer’s counsel explained that the delay in providing the epidural injections was due, in part, to the doctor who recommended the injections not performing them, but instead referring the claimant to another physician who would not agree to accept the fee schedule. The Employer argued that the fee claimant’s counsel sought would result in “unjust enrichment”.
The JCC applied the Lee Engineering factors and noted that defense counsel did not offer any testimony to contradict the testimony of claimant’s counsel and that the Employer’s response merely stated in conclusory fashion that the fee would be too high (“unjust enrichment”) and the Employer failed to challenge any specific time claimant’s counsel claimed he expended.
Further, the JCC found the Employer denied authorization of the injections for six months before they agreed to authorize the injections and it took them over eight months to find a doctor who agreed to perform the injections and accept the fee schedule and, actually, it was claimant’s counsel who found the doctor.
Donald Robinson v. Max-Pak, Inc./Amerisure Insurance
JCC Sojourner; Lakeland District; Order Date: July 22, 2016
OJCC Case: 12-013080MES; D/A: 11/4/2011
Claimant’s Counsel: Carl Feddeler
Former Counsel for Claimant: Laurie Thrower Miles
Employer/Carrier’s Counsel: Donald D. Kaelber
Briefly: ATTORNEY’S FEES – JCC Sojourner found that claimant’s former counsel, Laurie Thrower Miles, is entitled to $3,038.80 as a reasonable attorney’s fee, based upon an hourly rate of $275 and based upon 11.05 hours of reimbursable attorney time.
Beverly Heath v. Precisionaire of Florida, Inc./Gallagher Bassett Services, Inc.
JCC Sojourner; Lakeland District; Order Date: July 25, 2016
OJCC Case: 06-035775MES; D/A: 6/2/2006
Claimant’s Counsel: Bill McCabe & Pat T. DiCesare
Employer/Carrier’s Counsel: Claude M. Harden
Briefly: APPELLATE ATTORNEY’S FEES – JCC Sojourner awarded an appellate attorney’s fee to Mr. McCabe at an hourly rate of $350 and an appellate attorney’s fee to Mr. DiCesare at an hourly rate of $300. The JCC found that Mr. McCabe is an appellate specialist who has handled many workers’ compensation appeals and that his expertise is evident in the minimal number of hours claimed for preparation of a successful Answer Brief. The JCC found that Mr. McCabe spent 14.4 hours preparing the Answer Brief for the claimant and that Mr. DiCesare spent a total of 7.6 hours.
Maria Oxford v. Oasis Outsourcing, Inc./ESIS WC Claims
JCC Rosen; West Palm Beach District; Order Date: July 28, 2016
OJCC Case: 14-000765TMB, 14-000771TMB D/A: 9/19/2013
Claimant’s Counsel: Ala Alikhani
Employer/Carrier’s Counsel: Marie Tranakas
Briefly: ATTORNEY’S FEES – JCC Rosen ordered the Employer/Carrier to pay to the claimant’s prior attorney, Lyle B. Masnikoff, a reasonable fee based on the number of hours spent on the claim in light of the benefits secured. The JCC found that determination of the amount of the fee based on the statutory fee schedule is too difficult to determine because of ongoing medical care.
Summary: The JCC noted that the specific amount of the fee ultimately agreed to by the parties was $1,200 and that an hourly rate applied in this case. The JCC found that determination of the amount of the fee based on the statutory fee schedule is too difficult to determine because of ongoing medical care.