Opinion
No. BH-393.
May 22, 1986.
Appeal from the Deputy Commissioner John G. Tomlinson.
Guy A. Gladson, Jr., of Gladson and Sullivan, Miami, for appellants.
Jerold Feuer, Miami, for appellees.
In this workers' compensation case the employer and carrier (E/C) were ordered to pay $70,800 in attorney's fees in accordance with section 440.34, Florida Statutes. They appeal the amount of this award, taking issue with the calculations adopted by the deputy commissioner in establishing $467,000 as the value of benefits secured for the claimant by the attorney. We affirm in part, reverse in part, and remand for further proceedings.
Of the several arguments made by the E/C, one merits reversal. As part of the amount of total benefits secured by this attorney the deputy commissioner included a figure of $16,983.00 for past due compensation. We agree with the E/C that it appears from the evidence that at least some of this amount was paid to the claimant prior to the filing of any claim by the attorney whose fees are in question. Compensation paid prior to involvement by this attorney cannot be considered to have been "benefits to the claimant that the attorney is responsible for securing" as required by statute, and thus, should not be included in the value of the award upon which attorney's fees are based.
Except for this one aspect of calculation, we find the decisions of the deputy commissioner to be reasonable, supported by competent, substantial evidence, and fully in accord with section 440.34, Florida Statutes.
Accordingly, we affirm the Order, including all the calculations adopted by the deputy commissioner, except that portion which includes benefits paid the claimant through the effort of someone other than the attorney whose fee is being determined. Therefore, we reverse in part and remand for recalculation of the attorney's fee consistent herewith.
SMITH and WIGGINTON, JJ., concur.