FUMIGATION DEPARTMENT AND CLAIMS CENTER, APPELLANTS,
v.
WADE PEARSON, APPELLEE
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The Fumigation Department and Claims Center appealed a workers' compensation order finding Wade Pearson permanently and totally disabled from toxic substance exposure and awarding lifetime attendant care. The appellate court affirmed the deputy commissioner's decision, finding no error in the record and imposing sanctions against appellants' counsel for filing a non-compliant brief that failed to raise justiciable issues.
The court affirmed the deputy commissioner's order in its entirety, finding that the appellants failed to demonstrate any error warranting reversal. The court found no justiciable issue of law or fact was properly raised on appeal.
[1] An appellate court may deny a motion to require refiling of a non-compliant brief if the attorney is experienced and refiling would only delay benefits to the claimant.
[2] An appeal that completely fails to raise a justiciable issue of law or fact may warrant an award of attorney's fees under Florida Statutes Section 57.105.
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Join FLexlaw to unlock all legal intelligence“After review of the merits, we conclude that no error has been made to appear to support a reversal.”
The court's core holding that the deputy commissioner's decision was sound and the appeal failed on the merits.
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Join FLexlaw to unlock all legal intelligenceWade Pearson was exposed to toxic substances while working and was found by the deputy commissioner to be permanently and totally disabled as a result…
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PER CURIAM.
This cause is before us on .appeal of an order of the deputy commissioner adjudicating claimant permanently totally disabled due to exposure to toxic substances. So far as we have been able to determine from appellants’ brief, the issues raised on appeal are (1) there was no support for the deputy’s finding that claimant is permanently totally disabled, (2) that the deputy erred as a matter of law in concluding that claimant’s last injurious exposure occurred while working for the employer ultimately held liable, (3) that the deputy erred in awarding lifetime, around-the-clock attendant care, and (4) that the deputy erred in issuing a lengthy, detailed order, supposedly making improper findings and supposedly issued only for the purpose of inflating an attorney’s fee.
The appellants’ initial brief, filed after this court granted an extension of time, violates Florida Rules of Appellate Procedure 9.210(a)(5) and 9.210(a)(2) as to length and as to margin width.1 We will not discuss the tone of appellants’ briefs, which vent counsel’s frustrations and displeasure with the system, but do little to enlighten as to issues and pertinent facts in this 2,000 page record.
The panel has considered ordering that another brief be filed by appellants but, on reflection, we decline to do so.2 Counsel for appellants is an experienced lawyer who is capable of filing a brief in compliance with the rules. To require refiling will not therefore be instructive or rehabilitative for counsel and will only delay the date that benefits would begin to reach the claimant. After review of the merits, we conclude that no error has been made to appear to support a reversal.
The motion for fees under Section 440.-34(5) is granted. Because this appeal completely failed to raise a justiciable issue of law or fact, appellee is also granted fees under Section 57.105, Florida Statutes. Whitten v. Progressive Casualty Insurance Company, 410 So. 2d 501 (Fla.1982).
The order below is affirmed.
BOOTH and MINER, JJ., concur. JOANOS, J., specially concurs in part and dissents in part.
. The brief purports to be 50 pages long, but includes a page "42A" and incorporates by reference a 23-page appendix into the facts. Right-hand margins are but a fraction of an inch wide throughout.
. We issued motion to show cause why the brief should not be stricken and sanctions imposed against counsel, and have considered counsel’s response thereto filed March 24, 1989, as well as appellee’s reply filed March 29, 1989.
JOANOS, J.,
specially concurring in . part and dissenting in part.
I concur in affirming the order on appeal. I also concur in awarding an attorney’s fee pursuant to Section 440.34(5), Florida Statutes. However, I dissent from the granting of fees under section 57.105, Florida Statutes.
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Fumigation Dep't & Claims Ctr. v. Pearson, 559 So. 2d 587 (Fla. 1st DCA 1989)…aith. We affirm. An order on the merits of claimant’s case was entered by the deputy on April 8, 1988. An appeal was taken to this court, and this court affirmed the deputy’s order on the merits on August 15, 1989. Fumigation Department v. Pearson, 547 So. 2d 352 (Fla. 1st DCA 1989). Claimant was found to be permanently totally disabled due to exposure to toxic substances, and was awarded, among other things, lifetime attendant care. Claimant’s recovery, re [*588] duced to present value, was ultimately deter…
Authorities Cited
- Whitten v. Progressive Cas. Ins. Co., 410 So. 2d 501 (Fla. 1982)