Ward v. Leon County School Board

538 So. 2d 1307, 14 Fla. L. Weekly 463, 1989 Fla. App. LEXIS 739, 1989 WL 10982
CourtDistrict Court of Appeal of Florida
DecidedFebruary 14, 1989
DocketNo. 87-1714
StatusPublished
Cited by2 cases

This text of 538 So. 2d 1307 (Ward v. Leon County School Board) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ward v. Leon County School Board, 538 So. 2d 1307, 14 Fla. L. Weekly 463, 1989 Fla. App. LEXIS 739, 1989 WL 10982 (Fla. Ct. App. 1989).

Opinion

JOANOS, Judge.

Claimant in this workers’ compensation appeal seeks review of the deputy commissioner’s order denying her petition for attorney’s fees. The issues concern (1) the deputy commissioner’s failure to award attorney’s fees based on temporary total disability benefits received by claimant between January 5, 1987, and May 27, 1987; and (2) the deputy commissioner’s failure to award attorney’s fees based on the award of permanent total disability benefits. We reverse and remand with directions.

The accident which forms the basis of this appeal occurred on January 14, 1985, while claimant was working as a fifth grade teacher. Claimant was involved in a verbal altercation with a student, which escalated into a physical attack. Following the attack, claimant developed a severe speech problem, marked by stuttering, stammering, and mispronunciation of words. She has not returned to work since the January 1985 attack.

On June 4, 1979, claimant had been involved in a similar incident. At that time, she stopped a fight between two students and was in turn attacked by a parent. Although claimant missed only eight days of work in connection with the 1979 incident, she remained under a doctor’s care for several months. In addition, claimant has suffered continuing anxiety, and has been treated with medication and therapy for several years.

On January 16, 1985, and on January 18, 1985, claimant filed claims seeking, among other things, medical benefits, temporary total and temporary partial disability benefits, wage loss or permanent total disability benefits, costs, and attorney’s fees. At the hearing held on the claim, the employer [1308]*1308and carrier controverted the claim in its entirety. It was the position of the employer and carrier that any psychological problem claimant had was related to a pre-exist-ing condition; that claimant suffered only minor injuries in the instant incident and had no need for continued medical care, or if care were needed, it was not related to the accident; that there was no medical causation between the incident of January 14, 1985, and claimant’s current medical condition, if any; that claimant was not temporarily totally disabled; and finally, that claimant did not suffer a compensable accident.

The deposition of Dr. Head, claimant’s treating psychiatrist, indicated that claimant suffered severe depression, anxiety, and fear. Dr. Head said that claimant was unable to stay alone, and was being cared for by her husband and family. In addition, claimant had developed a partial paralysis of her right arm and right leg, as well as a severe speech defect. Dr. Head diagnosed claimant’s condition as traumatic neurosis marked by anxiety, fear, and depression. Dr. Head treated claimant on a continuing basis, with antidepressants, tranquilizing medications, supportive psychotherapy, and interpretive psychotherapy. Dr. Head stated that claimant had improved under treatment, to the extent that she was able to stay home alone and was able to perform some of the household duties.

Nevertheless, Dr. Head found claimant unable to return to work as a teacher. He stated that claimant would require medication for at least another one to two years, although he expected the office visits to become less frequent. Dr. Head opined that within reasonable medical probability, claimant had been temporarily totally disabled since the January 1985 accident. He further stated that, in his opinion, claimant would never be able to return to teaching, and certainly not in the near future.

In an order entered December 3, 1986, the deputy commissioner found that claimant had been temporarily totally disabled since July 16, 1985,1 and that she was entitled to payment of outstanding medical bills causally related to the January 14, 1985, accident. In addition, the deputy commissioner retained jurisdiction on the issue of attorney’s fees. Thereafter, the parties stipulated that pursuant to the benefits awarded in the December 3, 1986, order, the employer and carrier paid an attorney’s fee in the amount of $5,250.00 for benefits paid through January 5, 1987. It was further stipulated that benefits were paid after January 5, 1987, in connection with the December 3, 1986, order.

On April 10, 1987, claimant’s counsel obtained a letter from Dr. Head, in which Dr. Head opined that claimant reached maximum medical improvement as of October 1, 1986, and that she is permanently and totally impaired. Dr. Head’s letter concluded with the following statement: “In my opinion she is unemployable and will never be able to return to work because of the fear and emotional distress caused by the memories of two physical attacks on the job.” Claimant’s counsel transmitted a copy of Dr. Head’s letter to employer and carrier on April 10, 1987.

On the basis of Dr. Head’s letter, claimant’s counsel attempted to negotiate a settlement of all future benefits on a basis of permanent total disability. On May 8, 1987, claimant’s counsel filed a claim for permanent total disability benefits and attorney’s fees. On May 27, 1987, employer and carrier filed form BCL-4, accepting claimant as permanently totally disabled as of April 10, 1987.

On August 19, 1987, claimant’s counsel filed a petition for attorney’s fees based on temporary total disability benefits for the period from January 5, 1987, through May 27,1987, and for a statutory fee for obtaining permanent total disability benefits, on the ground that employer and carrier denied compensability. In an order entered October 8, 1987, the deputy commissioner denied the petition for attorney’s fees for [1309]*1309the permanent total disability award, finding that counsel had not been required to litigate the issue. The order contains no reference to the claim for an attorney’s fee based on claimant’s receipt of temporary total disability benefits for the period from January 5, 1987, through May 27, 1987.

The first issue in this case presents a scenario somewhat analogous to that in Barr v. Pantry Pride, 518 So.2d 1309 (Fla. 1st DCA 1987), review denied, 525 So.2d 876 (Fla.1988). In Barr, as in the instant case, an attorney’s fee was awarded based on the success of claimant’s counsel in obtaining temporary total disability benefits. And in Barr, as in the instant case, the fee award contemplated only the amount of benefits paid up to the date of the award. This court reversed, noting that “the rule is that an attorney’s fee should be determined on the basis of the total benefits secured as the result of the lawyer’s intervention.” 518 So.2d at 1317-1318. The court found that even though after the order, the employer and carrier paid all temporary total disability benefits due and owing, the payment of those benefits was largely attributable to the efforts of claimant’s attorney, which efforts resulted in the order finding Barr to be temporarily totally disabled and ordering benefits in accordance with that finding. In a footnote, the court in Barr emphasized that the total amount of temporary total disability benefits achieved by claimant’s attorney was a quantifiable amount by the time of the fee hearing. Therefore, a fee which encompassed the full amount of temporary total benefits achieved would not be based in any sense on speculative future benefits. 518 So.2d at 1318 fn. 4.

This court’s opinion in Jackson v. Dade County School Board, 484 So.2d 1290 (Fla. 1st DCA 1986), is also instructive on this issue. In Jackson,

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Bluebook (online)
538 So. 2d 1307, 14 Fla. L. Weekly 463, 1989 Fla. App. LEXIS 739, 1989 WL 10982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-leon-county-school-board-fladistctapp-1989.