Opinion
No. 94-537.
January 17, 1995.
Appeal from the Judge of Compensation Claims, Gail A. Adams.
William H. Rogner of Hurley Rogner, P.A., Orlando, for appellants.
Mary Bland Love and John H. McCorvey, Jr. of Gobelman and Love, Jacksonville, for appellee.
The employer/servicing agent appeal a workers' compensation order by which the claimant was awarded an attorney's fee under section 440.34(3)(b), Florida Statutes (1989). We conclude that in applying the section 440.34(1), Florida Statutes (1989) criteria as to the amount of the fee, the judge erred by failing to limit the application of those factors to the benefits which were untimely under section 440.34(3)(b). The statutory criteria should not be applied to payments which were voluntarily made, or which were otherwise timely provided after being claimed, because section 440.34(3)(b) does not authorize a fee in such circumstances. See National Distributing v. Campbell, 632 So.2d 647 (Fla. 1st DCA 1994). Furthermore, in applying the section 440.34(1) criteria the judge should consider only those attorney hours and other factors pertaining to the underlying benefits upon which fee entitlement is properly predicated. See Steel Fabricators v. Jordan, 643 So.2d 35 (Fla. 1st DCA 1994).
The appealed order is reversed and the case is remanded for reconsideration as to the amount of the attorney's fee.
LAWRENCE and BENTON, JJ., concur.