Williams v. Southern Iron & Metal Co.

7 Fla. Supp. 128

• Court: Florida Industrial Commission
• Decided: May 25, 1955
• Status: Published

Opinions

JAMES T. VOCELLE, Chairman and WALTER L. LIGHTSEY, Commissioner.

This cause came' on to be heard on the carrier’s application for review of a deputy commissioner’s order dated August 3, 1954. The sole question is one of attorney, fees. The deputy found that the deceased employee was survived by a widow and three children (one a step-child). Pursuant to said findings, the deputy ordered the carrier to pay the widow $12.88 per week (35 % of the deceased’s average weekly wage of $36.80) and $3.07 per week to each of the children (8 1/3% of said average weekly wage). The carrier applies for review of that portion of the order requiring payment of attorney fees by the carrier.

The deceased was injured in an explosion in the course of his employment on December 11, 1953 and died the same day. Confronted (as the carrier states in its brief) with the several claims and one by an alleged dependent mother, it wrote to the commission 12 days later on December 23, 1953 “that it was willing to pay compensation” but that “it will be necessary for the commission to determine the proper beneficiaries to receive payment of compensation.” Hearings to determine the above claims were held on May 14, 1954 and June 7, 1954.

Legislative policy with respect to attorney fees in workmen’s compensation cases varies in the several states. Florida is one of the few which charges the carrier under certain circumstances set forth in the Act. Our legislature has determined and incorporated its policy in section 440.34(1), Florida Statutes 1953, as follows—

If the employer or carrier shall file notice of controversy as provided in §440.20 of this chapter, or shall decline to pay a claim on or before the twenty-first day after they have notice of same, or shall otherwise resist unsuccessfully the payment of compensation, and the injured person shall have employed an attorney at law in the successful prosecution of his claim, there shall, in addition to the award for compensation be awarded reasonable attorneys fee . . . (Italics added.)

Under this section, there are three classifications, any one of which makes mandatory the payment of an attorney fee. “There shall .... be awarded reasonable attorneys fee” if — (1) the carrier controverts the claim, or (2) it. declines to pay a claim on or before the twenty-first day after it has notice, or (3) otherwise resists unsuccessfully the payment of compensation. In the case now before us, there is no evidence that the carrier took, any steps to resist the claims. Accordingly, we eliminate (3) as a basis for ordering payment of an attorney fee. It further appears that the carrier never controverted the above claims. It follows that classification (1) does not support the order of payment. It is, however, undisputed that the carrier declined to pay these claims on or before the twenty-first day after it had notice; it is undisputed that the claimants “employed an attorney at law in the successful prosecution of [their] claims.” We are therefore of the opinion that classification (2) and the mandatory provisions of the section support the deputy’s order requiring the carrier to pay attorney fees.

The carrier contends that the imposition of the charge for attorney fees is inequitable where there are conflicting claims among several survivors; that the existence of such conflict made it necessary to hold a hearing to resolve which of the claimants were entitled to benefits under the Act. We are fully aware that the existence of conflicting claims in death cases poses a difficult administrative problem for the carrier. It is understandable that in order to reduce the risk of improper payment ordinary business prudence may well at timesi dictate that the carrier withhold making any payments until the claims have been adjudicated. When, however, a hearing has been held and such adjudication made, there still remains the question as to the burden of paying the attorney fees. The successful claimant, on the other hand, contends that it is inequitable that his statutory benefits be consumed by payment of fees to an attorney whose services were forced on him to obtain that to which he was in fact entitled under the express provisions of the Act; that it is contrary to the purposes and provisions of the Act that the burden of the fees should fall on him when he is as little responsible as the carrier for the existence of other claims adverse to his' own. These opposite points of view find support in the varied legislation of the several states. It is not for this commission to choose between these conflicting policies. The choice has been made by our legislature in section 440.34, quoted above.

In Fidelity & Casualty Co. v. Bedingfield, 60 So. 2d 493, our Supreme Court said — “There can be no question that the acceptance of the workmen’s compensation law by the employee, employer and insurance carrier constitutes a contract between the parties which embraces all of the provisions of the law as they exist at the time the employee sustains an injury.” Part of that contract is the provision that if the employer or carrier — “. . . . shall decline to pay a claim on or before the twenty-first day after they have notice of same . . . and the injured person shall have employed an attorney at law in the successful prosecution of his claim, there shall, in addition to the award for compensation be awarded reasonable attorneys fee . . . .” We can find nothing in that' contract to indicate that in difficult cases the burden shall shift from the carrier to a successful claimant.

There remains for consideration one further argument by the carrier. In substance, it construes sections 440.16(2) (c) and 440.16(5) to mean this — where there are two or more survivors of the deceased employee, no rights to benefits arise until a hearing has been held and an adjudication made by the deputy. Section 440.16(2) (c) reads in part as follows—

.... provided, however, where the deceased is survived by a widow or widower and also a child or children, whether such child or children be the product of the union existing at the time of death or of a former marriage or marriages, the commission may provide for the payment of compensation in such manner as to it may appear just and proper and for the best interests of the respective parties and in so doing may provide for the entire compensation to be paid exclusively to the child or children. (Italics added.)

Section 440.16(5) reads as follows—

If the commission determines that payments in accordance with clause (b) of subsection (4) would provide no substantial benefit to any person of such class, it may provide for the payment of such compensation to the person or persons within such class whom it considers will be most benefited by such payment. (Italics added.)

Quoting from the carrier’s brief—

The case presently before the commission is a fine example of why the employer or carrier cannot undertake to make payment, in any proportion, to the' dependents of the deceased claimant until such time as the commission shall determine which dependents are entitled to compensation, and to what amount of compensation they are entitled. In the instant case the deceased claimant was survived by a wife, a mother, two apparently legitimate children and one step-child. How can the carrier undertake to pay compensation to the widow in the amount of 35% of the average weekly wage of the deceased claimant and then undertake to pay the balance of 25% of the weekly wage in equal amounts to each of the three children? The case may well be one where it may not appear to be just and proper and for the best interests of the respective parties to pay to the widow any benefits, particularly when the widow stated that she and the deceased employee had been separated for over two years, and all the benefits should be paid to the three children. On the other hand, it may be a case in which it would appear to be just and proper that the widow receive 35% of the average weekly wage but that the remaining 8 1/3% for each of the three children would not provide substantial benefit for any one of the children and the entire remaining benefits should be paid to one of the children. These are matters which must be decided by the, commission and are matters which cannot arbitrarily be decided by the employer or carrier. The Act places upon the commission the duty of establishing the benefits payable to the respective dependents for the best interests of the several dependents. Thus, its is the duty of the commission to make its investigation and determine which of the survivors are entitled to what proportion of the benefits payable. The Act specifically lodges in the commission the discretion to make this determination thereby taking from the carrier or employer the right to make the determination.

We find no merit in this argument. The essential feature of the Florida workmen’s compensation law is its self-executing framework. Unlike those states which require an administrative hearing in every compensation case, benefits are intended under our Act to pass directly from the carrier to the beneficiary. The character of the Florida Act is embodied in section 440.20(1) — “Compensation .... shall be paid .... promptly .... and directly to the person entitled thereto, without am, award, except where liability to pay compensation is controverted by the employer.” Section 440.02(11) defines compensation as — “. . . . the money allowance payable to an employee or to- his dependents as provided for in this chapter.” (Italics added.)

The benefits “to his dependents as provided in this chapter,” are covered by section 440.16(2). Under the latter section, “the employer shall pay” a stated percentage of the average weekly wage to the widow and a stated percentage to the children. The rights of the survivors are definite and arise upon the death of the employee. The commission has but a discretionary power to alter the statutory allocation of benefits on its own motion or upon application of an interested party. The deputy commissioner was correct when he stated that — “this can only mean that the employer or carrier may pay in accordance with the provisions of section 440.16(2) (a) and (c), and then after payments have been commenced, the commission or some interested party, feeling that such percentages are not just and proper, asks that consideration be given to changing them. In .the instant case, had the carrier paid in accordance with 440.16(2) (a) and (c), it would have been entitled to credit for such payments even if thereafter the commission by its order required payment in a different ratio. Section 440.16 obviously does not intend to compel the commission to enter an order in eachi and every death case, directing to whom compensation should be paid. If the carrier’s contention with respect to this section is correct, then death benefits could never be paid except after an order by the commission.”

The carrier cites Balatsos v. Nebraska Ave. Cafe & Liquor Store (Fla.), 30 So. 2d 633, as authority for its position. There is considerable difference in the facts. In the case now before us the carrier on December 23, 1953, 12 days after the death of the employee, referred the matter to the industrial commission, ostensibly relieving itself of further labor, and expense of investigation. No benefits were received by the widow and children until somé time after the order of the deputy was entered on August 3, 1954 — over 8 months after the death of the employee. It appears from the Balatsos opinion, however, that the carrier in that case was not only still in the process of investigating the claim, but, as a matter of fact, an advance in excess of the deceased husband’s salary had been made to the surviving widow.

Cited also by the carrier is the commission order in Hayes v. Wilson, claim #P-16821. Upon consideration of the issue before us, we conclude that the Hayes order failed to properly apply the attorney fee section of the Act (section 440.34) and incorrectly states the applicable law. It is, accordingly, by this opinion overruled.

It is the opinion of a majority of the commission, that the order of the deputy commissioner requiring the carrier to pay attorney fees was proper and that the amount allowed was reasonable. The deputy’s order is affirmed and it is ordered that the carrier pay to each of the attorneys for the claimants the sum of $300 as a reasonable attorney’s fee for representing the claimants before the commission in this cause.