Editor: Felicia Wymer, Partner, Pensacola Office

Author: Travis Coleman, Junior Partner, Tampa Office

Author: Katie Valley, Associate, Jacksonville Office

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ATTORNEY FEE ISSUE

Monsoor v. Okeechobee Steak House and Time Out Lounge, USIS

JCC Jacobs:   Orlando District                                           Order date:   9/18/2024

OJCC Case:   02-039010JEJ                                               

JCC Order: Click Here

Fee Awarded Based on Value of Benefits: $928,211.55

Summary: This claim involved a 1982 accident where the claimant suffered severe injuries to multiple body parts after being attacked on the job.  He was accepted PTD and continues with those benefits. In 2006 he returned to Minnesota where care was authorized. Between 2019 and 2021, the Claimant sought authorization of an Assisted Living Facility, and a Notice of Resolution was filed. In December 2023, a Final Hearing was held where the primary issue was the claimant’s entitlement to 24/7 attendant care; which the E/C did not dispute but argued the claimant should be placed in an Assisted living Facility rather than have care in his home. A Final Order was entered granting the attendant care along with bathroom modifications, and the JCC found claimant’s counsel entitled to attorney’s fees and costs. The parties agreed that the value of the bathroom modifications awarded is $23,805.60.The primary dispute between the parties for Attorney’s Fees and Costs were the amount of benefits secured (24/7 attendant care, use of inflation, use of discount factor, whether the E/C gets an offset for the value of the ALFs, whether the JCC should consider what an LPN can earn in the current job market without an agency, and if there should be a downward deviation of the statutory fee to the point that an hourly fee would be more appropriate. Based on expert testimony, the present value of 24/7 attendant care ranged from approximately $6 milli0n and just over $12.5 million, depending on discount rate and inflation factor used. Claimants counsel testified that he was willing to take less than statutory fee, using an amount of benefits secured of at least $9.5 million, the statutory fee is just under $1.5 million. The claimant’s counsel was willing to compromise at $950k. After analysis of the Florida Statutes in effect in 1982, the Court determined that present value of the attendant care equates to just under $8 million over the claimant’s lifetime. Using a 3.91% discount factor, that figure was reduced to $6.1 million. This, along with $70 per hour for nurses, and the bathroom modification, equated to a total value of benefits secured of $6.2 million, with the statutory fee of $928,211.55. The JCC found that a downward departure from the presumptively reasonable guideline fee was not supported by competent substantial evidence. The JCC awarded an attorney fee of $928,211.55, and costs of $4,314.92.

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Duffy v. JetBlue Airways Corp., Sedgwick CMS

JCC Jacobs:   Orlando District                                           Order date:   9/23/2024

OJCC Case:   22-006075JEJ                                               

JCC Order: Click Here

Hourly Fee Awarded: $400.00

Summary: The contested attorney’s fees arose after a Non-Final Order on Compensability wherein the JCC found in favor of the Claimant. The E/C appealed, and the First DCA Per Curiam Affirmed the Order. The parties thereafter agreed to Attorneys Fees and Costs for the Appeal, totaling $32,000.00. Attorney Michael Winer had joined the case for the Claimant as Co-Counsel, argued at the hearing, and handled the appeal on his own. The parties reached a settlement, and Attorney Winer filed a Motion regarding his Fee Lien for the work prior to the appeal. The parties attended a Status Conference and Motion Hearing regarding Mr. Winer’s attorney’s fees. The E/C had reached an agreement with the other Co-Counsel which appeared to try and cut Attorney Winer out of getting a fee. This was met with a Notice of Objection and Motion to Strike, which the JCC granted. Attorney Winer sought $13,600.00, whereas the E/C argued that $5,005.00 was reasonable. After finding the statutory fee was unreasonable, going through the Lee Engineering factors, and cutting only 1.3 hours from Attorney Winer, the JCC awarded an hourly fee of $400 for 33.1 hours totaling $13,240.00.

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Crystal Davis v. Southwind Manufacturing and ICW

JCC Holley:   Jacksonville District                                     Order date:   9/27/2024

OJCC Case:   21-029777WRH                                           

JCC Order: Click Here

Hourly Fee Awarded: $375.00

Summary: The claimant was injured on March 15, 2021, when she was packaging products and felt an extremely painful pop in her right wrist. Her pain and sensitivity became so severe that she was diagnosed with Complex Regional Pain Syndrome and referred for psychological treatment. The E/C previously authorized and paid for the claimant’s treatment for her right hand and wrist injury, and the CRPS, but later denied all care for these conditions based upon the defense that the accident was not the MCC of the Claimant’s injury. On July 13, 2022, the JCC issued a Final Compensation Order finding the claimant’s injuries and CRPS compensable, awarding attorney’s fees and costs. The E/C appealed, but on January 30, 2024, the JCC decision was affirmed by the 1^st DCA, who awarded appellate attorney’s fees, and remanded the case back to the JCC to determine the amount. On June 13, 2024, the claimant’s attorney filed a Verified Motion for Appellate Fees. During the fee determination hearing, the claimant’s attorney, Thomas Sculco, advised that it was his belief that $500.00 an hour was an appropriate rate, and that said amount had been awarded in other cases, albeit primarily in South Florida. Attorney Shannon McLin, who also worked on the case, indicated that her normal hourly rate was $700.00 for her non-workers compensation appellate work. Mr. Sculco asserted a timesheet of 114 hours for himself, 14.6 hours for Ms. McLin, and 12.5 paralegal hours. The claimant’s attorneys asserted that the JCC should consider the locality of the appeal as being the State of Florida versus Northeast Florida for the purposes of determining an hourly rate. During the hearing, the JCC heard testimony from several attorneys and experts regarding hours and rate for appellate work. The opinions ranged from $300 to $700 per hour as reasonable. The JCC considered several factors as guides in determining a reasonable fee, including current prevailing rates, the experience/reputation of the attorneys, and the complexity of the case. Ultimately, the JCC accepted as reasonable 103 hours at $375.00 per hour for primary counsel, 13 hours at $350.00 an hour for associate counsel, and 10 hours at $150.00 per hour for paralegal services. The JCC noted that these hourly rates were the highest contested attorney fee rates awarded by the undersigned judge to date, totaling $44,675.00.

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Peggy Bazoma v. Four Seasons Miami Employment Inc. and Zurich

JCC Almeyda:   Miami District                                           Order date:   9/30/2024

OJCC Case:   23-009764ERA                                             

JCC Order: Click Here

Hourly Fee Awarded: $350.00 and $400.00

Summary: On February 11, 2023, the claimant injured her knees when she was cleaning a room and tripped on a suitcase. A petition was filed on September 6, 2023, requesting indemnity, penalties and interest, and attorney’s fees and costs. On February 27, 2024, the parties entered a Joint Stipulation, resolving all outstanding issues except for the amount of the attorney’s fee. On June 12, 2024, the claimant’s attorney filed a Verified Petition for Attorney’s Fees and Costs, and the E/C filed a Response to Verified Petition for Attorney’s Fees and Costs on July 10, 2024. The Response did not meet the verification requirement as per Fla. Stat. 92.525 and rule 60Q-6-124(3)(b). The E/C’s attorney signed the Response in the presence of the notary, but the jurat did not include the proper verification language or oath, which the JCC said at best just guarantees that it was the E/C’s attorney that executed the same. Therefore, the Response was deemed inadmissible. The E/C did not provide any good cause justification for the non-compliance. In the Verified Motion, an analysis of the Lee Engineering factors was presented, which the JCC adopted here in its entirely. Consequently, the JCC awarded Andrew Kagan an attorney fee of $9,940.00 based on 28.4 hours at $350.00 per hour and Bradley Asnis an attorney fee of $12,160.00 based on 30.4 hours of work at $400.00 per hour, totaling$22,100.00.

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Jedlyn Pierrilus, M.D. v. Complete Local Specialty Care and Travelers

JCC Hedler:   West Palm Beach District                            Order date:   10/18/2024

OJCC Case:   20-003508TAH                                             

JCC Order: Click Here

Hourly Fee Awarded: $300.00

Summary: In October 2022, the claimant’s orthopedic provider referred the claimant to massage therapy. On December 30, 2022, the claimant filed a Petition for Benefits seeking authorization of the ordered massage therapy. On January 13, 2023, the orthopedic provider opined that any further treatment would be palliative in nature and would be causally unrelated to the work injury. The E/C denied the claim, stating that the compensable accident was no longer the major contributing cause of the need for treatment. On June 20, 2023, the Claimant filed a petition for benefits, in which she sought authorization of anti-inflammatories, lumbar MRI, and epidural injections. On July 31, 2023, the Claimant filed a petition for benefits, in which she sought authorization of a pain management physician.  These petitions were denied upon the pending defense that no further treatment was causally related. Two additional petitions were filed requesting authorization of a one-time change from Dr. Baynham and for additional massage therapy. The E/C later authorized the MRI and pain management referral but denied everything else. On June 3, 2024, the claimant’s attorney, Gil Panzer, filed a Verified Petition for Attorney’s Fees and Costs, where the claimant sought attorney’s fees from December 13, 2022, to June 2, 2024, totaling 290.7 hours spent securing benefits. He asserted costs of $11,693.75, which include an IME with Dr. Campbell, and two doctors’ conferences with Dr. Arlosoroff and Dr. Chaithoff. He requested a rate of $350 to $450 per hour. The JCC found that most of the Lee Engineering factors supported a fee increase, though the hourly log did not support it being increased to the requested rate. The JCC stated that the claimant failed to meet the burden to show that the IME and conferences were reasonably necessary to prosecute the claim. The JCC awarded a fee of $300 per hour for 262.4 hours, totaling $78,720.00, plus costs of $8,351.75.

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