FL Case Law Summaries – 1/28/16


Thomas G. Portuallo


William VanWinter v. Frank Crum/Broadspire

JCC Humphries; Jacksonville District; Order Date: January 26, 2016 

OJCC Case: 12-003988RJH; D/A: 10/17/2011

Claimant’s Counsel: Daniel J. Glary

Employer/Carrier’s Counsel: J. Craig Delesie, Jr.

Briefly: ATTORNEY’S FEES – JCC Humphries found claimant’s counsel was not entitled to attorney’s fees because the Petition for Benefits requested a surgery that was not in default, ripe, due, or owing at the time the Petition was filed.

Summary: The JCC found there was no real or substantial controversy which was definite and concrete at the time the Petition was filed.  The JCC found that, at the time the Petition was filed, the claimant’s physician made a referral for the claimant to be evaluated to determine whether he was surgical.  At the time the Petition was filed, the physician was not seeking authorization for surgery nor was he in a position to perform surgery since he no longer practiced as a surgeon.  The JCC did not construe the physician’s notes to definitely prescribe surgery.

The JCC found that surgery remained hypothetical or speculative until a subsequent physician prescribed surgery following the Petition for Benefits.

Eli Santiago Reyes v. Southeast Personnel Leasing, Inc./Packard Claims Administration

JCC Hill; Gainesville District; Order Date: January 26, 2016

OJCC Case: 13-012552MRH & 15-022982MRH; D/A: 10/27/2011 & 1/6/2013

Claimant’s Counsel: Bryce A. Schmidt

Claimant’s former Counsel: Anthony J. Salzman

Employer/Carrier’s Counsel: Karen Ferguson

Briefly: ATTORNEY FEE LIEN – JCC Hill denied former claimant’s counsel’s Verified Motion for Approval of Attorney’s Fee on the grounds that counsel did not present any evidence establishing why he was discharged from representation of claimant or that he secured any benefits on behalf of the claimant or achieved settlement. 

Summary: The JCC explained that in order to determine a quantum merit attorney fee award, the JCC must take into account relevant factors surrounding the professional relationship to ensure the award is fair to both the attorney and the client.  These factors include time reasonably devoted to representation; reasonable hourly rate; reason the attorney was discharged; actions taken by the attorney or client before and after discharge; whether the substituted attorney relied upon the lien holder’s work product in achieving settlement; and whether the substituted attorney’s failure to turn the client’s file over to new counsel caused new counsel to duplicate work.

Here, the JCC found that claimant’s former counsel did not present any evidence to establish why he was discharged or whether he was discharged without cause.  The JCC also found there was no evidence that claimant’s former counsel obtained any benefit for which he would be entitled to a claimant-paid attorney fee.  The JCC did note, however, claimant’s former counsel received a settlement offer which the claimant rejected and that the claimant ultimately retained subsequent counsel who obtained an increased settlement offer which the claimant did accept. 

Claimant’s subsequent counsel did not disburse any of the claimant’s settlement proceeds pending resolution of the attorney fee lien.  The JCC ordered that claimant’s former counsel immediately disburse to the claimant those monies held in trust and that subsequent counsel immediately disburse to the claimant the proceeds of settlement.