Opinion
Nos. BG-16, BH-390.
March 11, 1986. As Corrected May 7, 1986.
Appeal from the Deputy Commissioner, John G. Tomlinson, Jr.
Bernard J. Zimmerman and Rex A. Hurley, of Zimmerman, Shuffield, Kiser Sutcliffe, P.A., Orlando, for appellants.
Alfred Kreisler, Miami, for appellee.
This is a consolidated appeal from two orders of the deputy, one awarding claimant, Charlotte Cleghorn, permanent total disability benefits as a result of her on-the-job injury, and the other awarding claimant an attorney's fee of $10,500.00. There is competent, substantial evidence supporting the deputy's conclusion that claimant's disabling condition was causally related to her industrial accident, and that her fall off a chair while at home merely aggravated or exacerbated her original injury, and did not constitute an intervening cause which would cut off the chain of causation. Singletary v. Mangham Construction Company, Inc., 418 So.2d 1138 (Fla. 1st DCA 1982). Claimant is entitled to an award of attorney's fees pursuant to the provisions of section 440.34(3)(c), Florida Statutes (1981). Singletary v. Mangham Construction Company, Inc., 471 So.2d 635 (Fla. 1st DCA 1985); cf., Hillsborough County School Board v. Hilburn, 472 So.2d 1309 (Fla. 1st DCA 1985) ( Singletary distinguished).
AFFIRMED.
BOOTH, C.J., and SMITH, J., concur.
WENTWORTH, J., concurs and dissents with opinion.
I agree with the affirmance of the order on the merits of the claim, but with respect to the award of attorney fees I am unable to find that the evidence in this case meets the test applied in Singletary v. Mangham Construction Co., 418 So.2d 1138, 1139, 471 So.2d 635, for award of fees under section 440.34(2), Florida Statutes, for controverting compensability of a second injury when "that injury is the direct and natural result of a compensable primary injury," 418 So.2d 1139. There appears to me in this case to have been no contention, and no evidence, that claimant's fall at home was the result of her conceded compensable injury.
Carrier's contention that the ensuing disability was attributable solely to the second accident, and our conclusion to the contrary, do not meet the statutory requirement that "the claimant prevails on the issue of compensability" of an injury following a carrier denial "that an injury occurred for which compensation benefits are payable." Claimant has prevailed, instead, on the issue of continued causal relation between her initial injury and the claimed temporary disability following aggravation by a noncompensable accident. Since I am unable to determine, as was the case in Singletary, that the second injury was compensable, I would reverse the award of a fee.