ROBERT & COMPANY ASSOCIATES AND FIDELITY & CASUALTY COMPANY OF NEW YORK, PETITIONERS,
v.
JOHN ZABAWCZUK AND FLORIDA INDUSTRIAL COMMISSION, RESPONDENTS; JOHN ZABAWCZUK, PETITIONER, V. ROBERT & COMPANY ASSOCIATES, FIDELITY & CASUALTY COMPANY OF NEW YORK AND FLORIDA INDUSTRIAL COMMISSION, RESPONDENTS
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This workers' compensation case addresses whether a deputy commissioner properly awarded attorney's fees of $6,500, expert witness fees for attorneys testifying about counsel fees, and nursing care benefits. The Florida Supreme Court upheld the fee awards and the denial of nursing care, holding that expert witness fees under the statute apply only to experts testifying about direct benefits to the claimant, not collateral proceedings regarding attorney's fees.
The Court held that the $6,500 attorney's fee award was supported by competent evidence and properly approved by the full commission; that expert witness fees under F.S.A. § 440.31 apply only to experts testifying about direct benefits to the claimant, not to fees in collateral attorney's fee proceedings; and that substantial competent evidence supported the denial of nursing services.
“the statutory provision, F.S.A. § 440.31, for the award of expert fees authorizes only the payment of fees to experts testifying in the case with reference to direct benefits to the claimant, and that the statute was never intended to cover the award of fees to witnesses appearing in behalf of attorneys who claim counsel fees payable under our act”
Establishes the Court's narrow interpretation of the expert witness fee statute, limiting it to direct claimant benefits rather than collateral attorney's fee proceedings
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Join FLexlaw to unlock all legal intelligenceJohn Zabawczuk was a workers' compensation claimant. The carrier (Robert & Company Associates and Fidelity & Casualty) determined that Zabawczuk had r…
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The principal contentions upon petitions for certiorari in this workmen’s compensation proceeding concern the awarding of attorney’s fees of $6500, an award of expert witness’ fees for attorneys testifying for the claimant’s attorney, and the question of whether nursing care should have been awarded.
While the amount of fees may be debatable, we find that the record supports the amount of the award and that the basis on which the fee was arrived at by the deputy commissioner is correct. As we read his findings, he took into consideration only the benefits received by the claimant subsequent to the time the carrier determined that the claimant had reached maximum medical improvement and placed him on a 50% permanent partial rating. The valuation evidence of the experts ranged from $2500 to $12,000. Upon consideration of the amount of the fee, the full commission approved it. We do not feel that this Court in administrative proceedings such as this should substitute its judgment relative to the amount of a fee that has been awarded by a deputy on the basis of competent evidence and approved by the full commission.
The contention of the carrier that inasmuch as the claim had not been controverted no fee was justified under any circumstance is untenable in view of the stipulation appearing in the record that the claimant’s attorney was due an attorney’s fee, the only question remaining being the amount.
It is our view, in accord with that of the commission, that the statutory provision, F.S.A. § 440.31,1 for the award of ex*804pert fees authorizes only the payment of fees to experts testifying in the case with reference to direct benefits to the claimant, and that the statute was never intended to cover the award of fees to witnesses appearing in behalf of attorneys who claim counsel fees payable under our act. While the point is novel, the provision for payment to witnesses testifying “in any proceeding under this chapter” is most reasonably construed, in view of the history of the statute, to proceedings for compensation to claimant rather than proceedings, essentially collateral, for determination of the amount of attorney’s fees.
On the remaining issue, we conclude that there was substantial competent evidence to support the deputy’s finding, affirmed by the commission, that the claimant was not entitled to nursing services.
The petitions are accordingly denied.
THORNAL, C. J., and THOMAS and CALDWELL, JJ., concur.
O’CONNELL, J., dissents as to expert fee, concurs in remainder.
ERVIN, J., dissents from award of fee but concurs in holding regarding expert fees.
ROBERTS, J., dissents and agrees with ERVIN, J.
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Citator
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Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985)…OVERTON, Justice, dissenting. Until the legislature directs otherwise, I would hold, consistent with this Court’s prior holding in Robert & Company Associates v. Zabawczuk, 200 So. 2d 802 (Fla.1967), that courts may not tax as costs expert witness fees for attorneys testifying [*1188] as to the reasonable value of services rendered when that issue is collateral to the issue at trial. In Zabawczuk, in interpreting a statute almost ide…1 / 4
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Crittenden Orange Blossom Fruit v. Stone, 514 So. 2d 351 (Fla. 1987)…conclusion that hearings are no longer necessary to establish the amount of reasonable attorney’s fees in workmen’s compensation cases, and that affidavits may be used. [*354] I would recede from the holding in Robert & Co. Associates v. Zabawczuk, 200 So. 2d 802 (Fla.1967) for the reasons set out in my dissent in Travieso v. Travieso, 474 So. 2d 1184 (Fla.1985).…1 / 2
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B & L Motors, Inc. v. Bignotti, 427 So. 2d 1070 (Fla. 2d DCA 1983)…A 1981); Plever v. Bray, 266 So. 2d 54 (Fla. 3d DCA 1972); and Allstate Ins. Co. v. Chastain, 251 So. 2d 354 (Fla. 3d DCA 1971). Cf. Lee Engineering & Construction Co. v. Fellows, 209 So. 2d 454 (Fla. 1968); and Robert & Co. Associates v. Zabawczuk, 200 So. 2d 802 (Fla.1967) (holding that expert witness fees for lawyers testifying on the amount of a reasonable attorney’s fee cannot be collected in workmen’s compensation proceedings). [*1075] Admittedly, this may appear to financially penalize testifying attor…
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