WFTL BROADCASTING COMPANY & INSURANCE COMPANY OF NORTH AMERICA, APPELLANTS,
v.
SHARON MIDDLETON ROWEN, APPELLEE
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WFTL Broadcasting and its insurance carrier challenged an attorney's fee award in a workers' compensation case. The First District Court of Appeal affirmed the fee award, holding that the 1978 version of the attorney's fee statute applied and that the carrier's delay and unsuccessful resistance to the permanent total disability claim justified the additional fee.
The court held that the 1978 version of the attorney's fee statute applied because it was in effect at the time of the claimant's injury, and that statute did not require a showing of 'bad faith.' An additional attorney's fee was properly awarded because the employer/carrier declined to pay and unsuccessfully resisted the permanent total disability claim more than 21 days after receiving clear medical evidence of entitlement.
[1] The attorney's fee statute in effect on the date of a claimant's accident governs subsequent attorney's fee awards, even if the statute is later amended.
[2] An employer/carrier may be liable for an additional attorney's fee when they fail to promptly pay a claim or unsuccessfully resist its payment, as defined by the applicab…
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Join FLexlaw to unlock all legal intelligence“We find that the 'bad faith' amendment was a substantive enactment, and as such the applicable attorney's fee statute is that which was in effect on the date of claimant's accident.”
Establishes that the 1978 statute applied, not the 1982 amended version with the 'bad faith' requirement
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Join FLexlaw to unlock all legal intelligenceIn April 1979, the claimant suffered an industrial injury resulting in an initial permanent partial disability award of 20% anatomic impairment. An at…
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WENTWORTH, Judge.
Employer/carrier seek review of an attorney’s fee awarded pursuant to § 440.-34(1), Florida Statutes (1978). We find that no point of reversible error has been presented, and we affirm the order appealed.
In April 1979 claimant sustained an industrial accident which resulted in an initial award of permanent partial disability benefits for a 20% anatomic impairment. Claimant’s attorney was awarded a fee payable by employer/carrier pursuant to an agreed order in September 1980 which mandated that it be “in full discharge of any attorney’s fee earned in this cause.” However, in April 1982 an additional claim and petition for modification were filed, seeking various benefits including compensation for permanent total disability. Employer/carrier took no record action upon receipt of this additional claim and petition for modification, and in July 1982 claimant’s attorney suggested in a settlement request letter that claimant may be permanently totally disabled. Employer/carrier again took no immediate action, but eventually wrote claimant’s treating physician in October 1982, seeking an opinion as to the degree of claimant’s disability. The doctor responded by an October 25 letter advising that claimant had attained maximum medical improvement in April 1982 with a residual permanent total disability. Employer/carrier then accepted claimant as permanently totally disabled on November 29, 1982, with benefits deemed “retroactive” to November 9. Claimant’s attor- ney was subsequently awarded an additional attorney’s fee.
Employer/carrier argue that “bad faith” has not been shown so as to justify an attorney’s fee award pursuant to § 440.-34(8)(b), Florida Statutes (1982).
But claimant’s injury occurred when the effective attorney’s fee statute was § 440.34(1), Florida Statutes (1978), which did not require that a fee be predicated upon “bad faith.” We find that the “bad faith” amendment was a substantive enactment, and as such the applicable attorney’s fee statute is that which was in effect on the date of claimant’s accident. See Sullivan v. Mayo, 121 So. 2d 424 (Fla.1960).
We further find that an additional attorney’s fee was properly awarded pursuant to § 440.34(1), Florida Statutes (1978), in that employer/carrier did “decline to pay a claim on or before the 21st day after ... notice of same, or ... otherwise resist unsuccessfully the payment of compensation.” Although charged with an affirmative duty to promptly investigate entitlement to claimed benefits, see DiMuro v. Dave’s Tile Service, Inc., 409 So. 2d 107 (Fla. 1st DCA 1982), employer/carrier pursued a course of delay and inaction, culminating in an attempt to retroactively accept the permanent total claim more than 21 days after receiving a clear medical opinion as to claimant’s permanent total disability. While an initial fee had already been awarded “in full discharge of any attorney’s fee earned,” the additional fee which we now approve encompasses additional services rendered subsequent to the initial award. In these circumstances the deputy did not err in concluding that in accordance with § 440.34(1), Florida Statutes (1978), employer/carrier’s resistance and untimely acceptance of the additional claim and petition for modification should serve as a basis for an additional attorney’s fee.
The order appealed is affirmed.
JOANOS, J., concurs
THOMPSON, J., dissents.
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City OF Crestview & Ins. Servicing Adjusting Co. v. Howard, 657 So. 2d 73 (Fla. 1st DCA 1995)…s. Therefore, it [*75] is substantive, and amendments to the statute occurring alter a claimant’s injury may not be retroactively applied.” Kraft Dairy Group v. Sorge, 634 So. 2d 720, 721 (Fla. 1st DCA 1994). See also WFTL Broadcasting Co. v. Rowen, 480 So. 2d 233 (Fla. 1st DCA 1985) (amendment imposing a bad faith requirement as a predicate for attorney’s fees is a substantive amendment which cannot be applied retroactively; therefore 21-day grace period contained in rule in effect at time of accident applie…
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McCARTHY v. BAY Area Signs & Armor Ins. Co., 639 So. 2d 1114 (Fla. 1st DCA 1994)…were enacted after McCarthy was injured. The rule is that the substantive rights of the parties are fixed by the law in effect on the date of [*1116] injury, Meek v. Layne-Western Co., 624 So. 2d 345 (Fla. 1st DCA 1993); WFTL Broadcasting v. Rowen, 480 So. 2d 233, 234 (Fla. 1st DCA 1985); Sullivan v. Mayo, 121 So. 2d 424 (Fla.1960), while no party has a vested right in any particular procedure, including the allocation of the burden of proof. See Litvin v. St. Lucie County Sheriffs Dept., 599 So. 2d 1353 (Fl…
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Kraft Dairy Grp. & Ideal Mut. Ins. Co. v. Sorge, 634 So. 2d 720 (Fla. 1st DCA 1994)…a fee statute impacts the respective rights and responsibilities of the parties. Therefore, it is substantive, and amendments to the statute occurring after a claimant’s injury may not be retroactively applied. E.g., WFTL Broadcasting Co. v. Rowen, 480 So. 2d 233 (Fla. 1st DCA 1985); Ship Shape v. Taylor, 397 So. 2d 1199 (Fla. 1st DCA 1981). The right to an attorney fee award in workers’ compensation cases is purely statutory. If the claimant believes that he or she is entitled to an award of an attorney fe…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sullivan v. Mayo, 121 So. 2d 424 (Fla. 1960)
- MacEk v. State, 409 So. 2d 107 (Fla. 4th DCA 1982)
- Clemente DiMURO v. Dave's Tile Serv., Inc., 409 So. 2d 107 (Fla. 1st DCA 1982)