IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
RAFAEL CRUZ-RAMIREZ, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-2666
AMERICAN AIRLINES and
SEDGWICK,
Appellees.
___________________________/
Opinion filed October 4, 2016.
An appeal from an order of the Judge of Compensation Claims.
Stephen L. Rosen, Judge.
Dates of Accidents: July 13, 2009, and November 5, 2009.
Toni L. Villaverde of Toni L. Villaverde, PLLC, Coral Gables, for Appellant.
Robert A. Donahue and Richard B. Robbins of Rissman, Barrett, Hurt, Donahue &
McLain, Orlando, for Appellees.
PER CURIAM.
In this workers’ compensation appeal, Claimant raises three issues, only one
has merit. The Judge of Compensation Claims (JCC) erred in awarding any portion
of the attorney’s fees paid by the Employer/Carrier (E/C) to claimant’s prior
attorney, Mr. Buechele.
Claimant, a fleet service clerk for the Employer, sustained a back injury on
July 13, 2009, and a right shoulder injury on November 5, 2009, both of which were
accepted as compensable by the E/C.
Claimant was first represented by Mr. Buechele who filed multiple petitions
for benefits (PFBs) for both dates of accident in 2010 and 2011. It was agreed,
however, by Mr. Buechele and the E/C’s attorney, that all of the benefits claimed
due were provided by the E/C within thirty days of the date the PFBs were filed.
Ms. Villaverde filed a notice of appearance on February 1, 2012, listing the
July 2009 date of accident, and on February 10, 2012, filed a PFB seeking payment
of medical mileage on account of the November 2009 date of accident. According
to the E/C’s response, the mileage payment sought in that PFB was paid to Claimant
on February 1, 2012. Notwithstanding that assertion, the JCC found, and the E/C’s
payout ledger confirmed, that the February 1 check was voided and was not reissued
until June 18, 2012.
On February 21, 2012, Mr. Buechele filed a notice of charging lien for
attorney’s fees and costs on account of the November 2009 accident. Based on a
stipulation of the parties, an order rendered February 27, 2012, accepted Mr.
Buechele’s withdrawal as counsel effective January 30, 2012, and Ms. Villaverde
was substituted as counsel for Claimant effective that same date. The order
2
specifically stated that Mr. Buechele “shall have no further obligations or
responsibilities on this matter after January 30, 2012, and a lien is noted.”
In awarding an E/C-paid fee on account of the February 10, 2012, PFB, the
JCC found “that, because no order substituting counsel for the claimant had been
entered until February 27, 2012, both Attorney Villaverde and Attorney Buechele
were counsel of record for the claimant when the petition for medical mileage was
filed.” The JCC found further:
Upon consideration of all the evidence and evaluation of the variables
of F. S. 440.34(1)(3)(7) above, I find that a reasonable fee to claimant’s
attorney in case number 10-005218 is in the amount of $1,500.00 based
on a combined 10 hours of work between two attorneys of record for
the claimant, at the same time, at $150 per hour, the statutory maximum
for this date of accident.
The record supports neither finding. The February 27 order referenced by the JCC
relieved Mr. Buechele of all responsibility effective January 30, and there is no
record evidence to support that the ten hours of work represented “hours of work
between two attorneys of record.”∗
Further, there is no record evidence that Mr. Buechele secured any benefit for
Claimant related to the February 10, 2012, PFB. As such, no fee entitlement
attached. See § 440.34(2), Fla. Stat. (2009) (“In awarding a claimant’s attorney’s
fee, the [JCC] shall consider only those benefits secured by the attorney.”). The JCC
∗
We note that Mr. Buechele declined the opportunity to participate in this appeal.
3
erred, and abused his discretion, in finding that Mr. Buechele was due any portion
of the $1,500 attorney’s fee, as there is no competent evidence that Mr. Buechele
was in any manner entitled to a fee for securing the payment of medical mileage.
Accordingly, the order is AFFIRMED in part, REVERSED in part, and
REMANDED for entry of an order in accordance with this opinion.
WOLF and WINOKUR, JJ., CONCUR; WINSOR, J., CONCURS IN PART AND
DISSENTS IN PART WITH OPINION.
4
WINSOR, J., CONCURRING IN PART/DISSENTING IN PART.
The JCC directed the employer to pay attorney’s fees of $1,500 total, $750
each to two particular attorneys. The majority concludes that one of the two attorneys
was not entitled to any fee. That may well be, but that is not a basis to reverse. It is
the claimant who appealed here, and the employer has disclaimed any objection to
paying the fees as directed.
The fact that one attorney deserved nothing does not necessarily mean the
other attorney was entitled to more than the $750 awarded. It was the appellant’s
burden to show that he was aggrieved by the JCC’s decision, and he has not met that
burden. The appellant does not suffer when his employer overpays one of his
attorneys, and he has not shown that his employer underpaid the other.
I agree with the majority that the appellant’s additional claims lack merit. I
would affirm in all respects.
5