Opinion
No. 1D98-4809.
Opinion filed February 11, 2000.
An appeal from an order of the Judge of Compensation Claims, Michael J. DeMarko, Judge.
William H. Rogner, Orlando, for Appellants.
Barry Silber of Barry Silber, P.A., Pensacola, for Appellee.
In this workers' compensation case, the employer and carrier seek review of an order directing them to pay a fee to the claimant's attorney. The judge of compensation claims found that the claimant's attorney was entitled to a fee award pursuant to section 440.34(3)(b), Florida Statutes (Supp. 1994), because he had secured permanent total disability benefits. Having carefully reviewed the record, we conclude that there is no competent substantial evidence to support a finding that the claimant's attorney secured any benefits. Accordingly, we reverse.
The claimant sustained a work-related injury on January 31, 1995. The employer and carrier paid temporary total disability benefits from February 8, 1995, until April 8, 1998. On June 13, 1998, two days after learning for the first time that one of the claimant's treating physicians had concluded approximately two weeks earlier that the claimant had reached maximum medical improvement on April 8, 1998, the employer and carrier accepted the claimant as permanently and totally disabled as of that date. The claimant's attorney maintains that he is entitled to a fee award because he had filed a petition for benefits on August 11, 1997, seeking permanent total disability benefits from an earlier date. The judge of compensation claims found that the employer and carrier should have accepted the claimant as permanently and totally disabled no later than February 7, 1997, and, accordingly, granted the request for a fee.
There is no evidence in the record to support a finding that the employer and carrier should have accepted the claimant as permanently and totally disabled prior to the date as of which it did so. However, even if there were, the claimant's attorney would not be entitled to a fee award because it is apparent that his actions did not secure any benefit for the claimant that she was not already receiving from the employer and carrier.
The record reflects that the employer and carrier paid the claimant temporary total disability benefits at the maximum compensation rate from February 8, 1995, until April 8, 1998, and permanent total disability benefits at the maximum compensation rate commencing on the latter date. Had the claimant's attorney been successful in obtaining a determination that the claimant was permanently and totally disabled as of some date on or before February 7, 1997, no change would have occurred in the amount of the claimant's weekly benefit from that which was already being paid. In fact, the only effect of successful prosecution by the claimant's attorney of his petition seeking an earlier date for the commencement of permanent total disability benefits would have been (at least potentially) adverse. Pursuant to section 440.15(1)(c), Florida Statutes (Supp. 1994), payment of permanent total disability benefits may not exceed 700 weeks. Because the employer and carrier began paying permanent total disability benefits as of April 8, 1998, the claimant may (potentially) receive such benefits until September 21, 2011. However, had the claimant's attorney been successful, the claimant would be eligible to receive benefits only until July 23, 2010, at the latest.
There being no evidence in the record to support the finding of the judge of compensation claims that the actions of the claimant's attorney secured any benefit, the attorney was not entitled to a fee award. Accordingly, the order of the judge of compensation claims to the contrary is reversed.
REVERSED.
KAHN and PADOVANO, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.