Florida/Georgia Personal Injury & Workers Compensation

...[*], 79 L.Ed.2d 891 (1984) (Brennan, J., concurring in part, dissenting in part). [6] The United States Supreme Court has recognized that different categories exist concerning attorney's fees. Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). [7] See § 440.34, Fla....

...Compensation Law. Wage loss requests were also filed for the months of January and February. The January request was approved on March 7, 1980, and the February request was approved March 10, 1980. A hearing was held pursuant to the requirements of Section 440.34(2)(b) for the sole purpose of determining liability for interest, penalties and attorney's fees....

...In our view the deputy commissioner correctly ruled that the notice to controvert did not comply with the statute, payment was not made within fourteen days, and the punitive penalty for late payment was properly assessed. We next consider the assessment of attorney's fees under the "bad faith" provision. Section 440.34(2), Florida Statutes (1979), provides that a claimant shall be responsible for the payment of his own attorney's fees, except under limited circumstances set forth in subparagraph (a) of subsection (2), and except as provided in subpar...

...lful, wanton or reckless disregard of the rights of the claimant. Any determination of bad faith shall be made by the deputy commissioner through a separate fact-finding proceeding; ... The carrier argues that the "bad faith" definition contained in Section 440.34(2)(b) tracks the longstanding case law dealing with punitive damages....

...4th DCA 1978); Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla. 1977); Allstate Mortgage Company v. Strasser, 277 So.2d 843 (Fla. 3rd DCA 1973), aff'd 286 So.2d 201 (Fla. 1975). Finally, the carrier maintains that the elimination of Section 440.34(1), Florida Statutes (1978), providing for assessment of attorney's fees against the employer or carrier "if the claimant proves to the judge that the employer or carrier handled his claim in a negligent, arbitrary, or capricious manne...

...ove the amount necessary to compensate for his loss. Punitive damages are damages that "go beyond the actual damages suffered in the case... ." Richards Company v. Harrison, 262 So.2d 258 (Fla. 1st DCA 1972). We have not overlooked the provisions of Section 440.34(2)(c), arguably punitive in nature, which prohibit the carrier from directly or indirectly recouping any such attorney's fees assessed against it in the rate base, premium, or any rate filing....

...Under the new act, the claimant pays his own attorney's fees as a general rule. Provision is made, however, for payment of attorney's fees by the carrier or employer in certain limited instances: when the claimant successfully asserts a claim for medical benefits only (Section 440.34(2)(a)), or when the claimant prevails on the issue of compensability after the same has been denied by the carrier or employer (Section 440.34(2)(c)). The third circumstance under which attorney's fees may be recovered is the "bad faith" provision of Section 440.34(2)(b) involved in this case....

...the rights of all parties." The self-executing tenor of the new act is emphasized further by the reenactment of provisions effectively discouraging the claimant's resort to legal assistance in the early stages of a worker's compensation proceeding. Section 440.34 provides that no attorney's fees may be paid for services rendered for a claimant in connection with any proceedings under the law unless approved as reasonable by the deputy commissioner, or the court having jurisdiction over such proceedings....

...The further withholding of needed benefits for more than six additional weeks adds further justification, in our opinion, for a finding that the carrier's conduct in the handling of this claim amounts to "oppression," or "willful ... or reckless disregard of the rights of the claimant." Section 440.34(2)(b)....

...Whether and to what extent the new act has or will accomplish its desired purposes, as convincingly explicated by the authors of this law review, are matters not before us for consideration. [2] Id., pp. 649-654. [3] This provision, appearing in the prior law as Section 440.34(5), Florida Statutes (Supp....

...Nevertheless, in the instant case, the district court concluded that Zabawczuk was no longer relevant in light of the subsequent overhaul of the worker's compensation law in 1979. As the basis for its conclusion, the court said: It is clear, however, that the present attorney's fees provisions found in section 440.34, Florida Statutes (1983), reflect a recognition by the legislature that in specific circumstances — namely, those covered by 440.34(3)(a)-(c) — without the intervention or potential intervention of an attorney acting for the claimant, medical or compensation benefits due the claimant are likely to be delayed or denied to the claimant....

...We agree with the district court of appeal that because the present worker's compensation law places primary responsibility for the claimant's attorney's fees on the claimant, those limited instances in which the claimant may recover attorney's fees represent a substantial benefit to the claimant. § 440.34(3), Fla....

...lso be included in the award, but it is clear from the record that the award was predicated only upon the attorney's services rendered through the second hearing. [2] The affidavit may also include any other pertinent factors which are recognized by section 440.34(1), Florida Statutes (1985), and opposing counsel should be permitted the opportunity to challenge in writing both the reasonableness of the time spent and the applicability of such other factors.

...g approach to its chapter 440 obligations, we cannot find the deputy erred in assessing an attorney's fee for having acted "in bad faith with regard to handling an injured worker's claim," resulting in an injured worker suffering economic loss. Sec. 440.34(3)(b), (5)....

...ermining whether the appellant has fairly and expeditiously determined its obligation to place needed benefits in the hands of the injured *328 worker, or whether it has instead acted recklessly in handling the claim. That is the necessary effect of section 440.34(5), which is juxtaposed to the statutory criteria for awarding fees when "a carrier has acted in bad faith with regard to handling an injured worker's claim and the injured worker has suffered economic loss." Section 440.34(5) provides: If any proceedings are had for review of any claim, award, or compensation order before any court, the court may allow or increase the attorney's fees, in its discretion, which shall be paid as the court may direct....

...case-by-case basis, and the reasons for the delay must be closely scrutinized. We are nevertheless satisfied, however, on the record before us that there is competent and substantial evidence supporting the deputy's determination. In accordance with section 440.34(5), we grant claimant's motion for an appellate attorney's fee, we assess the fee at $3,000 based on the documentation furnished after oral argument, and we direct that this fee, like the fee to be awarded by the deputy on remand, "not be recouped, directly or indirectly, by any carrier [or group self-insurer, section 440.02(7)] in the rate base, the premium or any rate filing." Sec. 440.34(3)....

...If I thought the record evidence supported the deputy's finding of carrier [*] bad faith in withholding initiatives required of it under chapter 440, I would also agree, for the reasons stated by the Court, that the deputy's award of attorney fees should be sustained under section 440.34(3)(b)....

...Alternatively an appellate fee, paid in the manner directed by the Court, is justified to deter carrier appeals that are wholly without merit. That is the case here, for the carrier's appeal on the $350 issue is but an inconsequential struggle over labels. I note, as does the Court, that section 440.34(5) does not require a finding of bad faith in a carrier's appeal as a predicate for awarding fees not recoverable through the rate base; to deter wholly groundless carrier appeals it is necessary that the Court employ this economic disincentive....

...assisted by a servicing agent, or is insured by Peninsular Fire Insurance Company. In any case the term "carrier" is all-encompassing, section 440.02(7)(a), though there is some difficulty in speaking of a self-insured as a "carrier" for purposes of section 440.34(3), which directs that attorney fees assessed for carrier bad faith "shall not be recouped, directly or indirectly, by any carrier in the rate base, premium, or any rate filing." Assessing such a fee against a self-insured has the same...

...Zientz, P.A., Miami, FL, on behalf of NPAC Worker's Compensation Section of The Florida Bar, as Amici Curiae. WELLS, J. In this case petitioner Emma Murray, the claimant in a workers' compensation case, challenges the constitutionality of the statute governing attorney fees in such cases, section 440.34, Florida Statutes (2003)....

...Giorgetti, 868 So.2d 512, 518 (Fla.2004) ("We are also obligated to construe statutes in a manner that avoids a holding that a statute may be unconstitutional."). We hold, based upon the plain language of the statute, that when a claimant is entitled to recover attorney fees from a carrier or employer as provided by section 440.34(3)(a), (b), (c), or (d), the claimant is entitled to recover "a reasonable attorney's fee." See § 440.34(3), Fla. Stat. (2003). Section 440.34(3), does not define "reasonable attorney's fee," and an ambiguity results when subsection (1) and subsection (3) are read together....

...Hearings Compensation Order filed May 9, 2005) at 5. Accordingly, the JCC found that petitioner's claims were compensable and awarded her $3,244.21 in benefits. When petitioner prevailed at the hearing, the next issue to be addressed by the JCC was attorney fees. Section 440.34, Florida Statutes (2003), governs attorney fees in workers' compensation cases....

...edings filed under s. 440.24 or s. 440.28. Regardless of the date benefits were initially requested, attorney's fees shall not attach under this subsection until 30 days after the date the carrier or employer, if self-insured, receives the petition. § 440.34(1), (3), Fla....

...ying on its own prior cases addressing constitutional challenges to the statute: The claimant, Emma Murray, appeals the Judge of Compensation Claims' (JCC) order awarding an attorney's fee in strict accordance with the guideline formula set forth in section 440.34(1), Florida Statutes (2005)....

...Murray, 946 So.2d at 39. II. ANALYSIS Petitioner urges that the JCC and the district court erred as a matter of law in determining that the amount of the reasonable attorney fees award paid by the respondents for the petitioner's attorney under subsection 440.34(3) was determined solely under the statutory formula in subsection 440.34(1)....

...In the case below, the district court affirmed the JCC's order by relying on several prior decisions that addressed these issues, including Wood v. Florida Rock Industries, 929 So.2d 542 (Fla. 1st DCA), review denied, 935 So.2d 1221 (Fla. 2006). Murray, 946 So.2d at 39. [3] Examining only subsection 440.34(1) of the revised statute in Wood, the district court concluded that the Legislature had defined a "reasonable attorney's fee" as the amount determined under the percentage formula of subsection (1) and held that the statute prohibited the JCC from approving an amount exceeding that percentage figure....

...Below, we analyze the issue presented under this standard, keeping in mind that "[w]herever possible, statutes should be construed in such a manner so as to avoid an unconstitutional result." State v. Jefferson, 758 So.2d 661, 664 (Fla.2000). A. Plain Language and Ambiguity An examination of the plain language of subsections 440.34(1) and (3) reveals that when the formula requirement of subsection (1) is read together with the reasonable attorney fee authorization of subsection (3), a statutory ambiguity is created....

...the JCC "must equal" the statutory formula, which is based on a percentage amount of the dollar value of the compensation benefits obtained by the claimant; and the JCC cannot approve an attorney fee exceeding "the amount permitted by this section." § 440.34(1), Fla....

...We rejected strict application of a contingent percentage of the benefit award, finding such to be inappropriate for this area of the law, and remanded for determination of a reasonable attorney fee by applying the factors in our rule. Lee Eng'g, 209 So.2d at 458-59. The Legislature later amended section 440.34(1) and incorporated these factors as follows: (1) If the employer or carrier shall file notice of controversy as provided in s....

...(f) The nature and length of the professional relationship with the claimant. (g) The experience, reputation, and ability of the lawyer or lawyers performing the services. (h) The contingency or certainty of a fee. Ch. 77-290, § 9, at 1293-94, Laws of Fla. (codified at § 440.34, Fla....

...Any determination of bad faith shall be made by the deputy commissioner through a separate fact-finding proceeding; or (c) In a proceeding where a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability. § 440.34(1)-(2), Fla....

...d by the employer/carrier. Nothing in subsection (2) referred directly to the formula or factors of subsection (1). In 1980, the provision for the employer/carrier-paid fee award was renumbered as subsection (3). See ch. 80-236, § 14, Laws of Fla.; § 440.34(3), Fla....

...Further, we expect the appellate courts to review the factors in cases presented to the courts so that only reasonable and necessary fees are awarded. III. CONCLUSION In sum, our decision in Lee Engineering controls our decision here. We find it to be unclear why in the 2003 revision to section 440.34 the Legislature deleted reference to the reasonable fee factors which had been included in the earlier revisions of the statute....

...bell. We direct that this case be remanded to the JCC for entry of an attorney fee award to respondent in the amount of $16,000. Petitioner is also entitled to an award of reasonable attorney fees for the appeal in the First District and this Court. § 440.34(5), Fla....

...was error because this type of percentage fee was abolished when section 733.617 was amended in 1975 and 1976. In response, Patterson asserts that, since the lodestar approach is inapplicable in workers' compensation cases where fees are governed by section 440.34, Florida Statutes (1987), the lodestar approach should not be applicable under the provisions of section 733.617, Florida Statutes (1987)....

...First, we reject respondent's contentions that the lodestar approach is not applicable because it does not apply in workers' compensation or condemnation proceedings. The statutes in those two types of cases are distinctive. In workers' compensation cases, section 440.34, Florida Statutes (1987), specifically sets forth how the fee should be calculated....

...(e) The time limitation imposed by the claimant or the circumstances. (f) The nature and length of the professional relationship with the claimant. (g) The experience, reputation, and ability of the lawyer or lawyers performing services. (h) The contingency or certainty of a fee. § 440.34(1), Fla....

...not infrequently are due to the preliminary conduct of the case, ... ." Shattuck v. Pennsylvania R. Co., supra at 348. The lower court, no doubt assuming that Sohn would be paid a fee for his services in the workmen's compensation claim as required by Section 440.34, Florida Statutes (1977), in essence discounted the value of those labors in evaluating the fee it awarded Sohn in the tort proceeding....

...tolled during appellate review. In the first place, the Workmen's Compensation Act does authorize attorneys' fees to claimants' attorneys under certain conditions and circumstances. The fees awarded in this case were specifically authorized by F.S. Section 440.34(1), F.S.A., since the claim was controverted and the Claimant's attorney was successful in prosecuting the claim to an award....

...in situations which could work hardships upon persons ordinarily least able to be burdened by any delays in compensation cases. The argument that penalty provisions and rule nisi enforcement procedures of the Act (see F.S. §§ 440.20(6), 440.24 and 440.34, F.S.A.) are legislative alternatives to allowance of interest on attorneys' fees lacks both logic and merit and overlooks such penalties and procedures are not applicable until after reviews and appeals are final, and are no more justificatio...

...Ohio Casualty appealed this order to the District Court of Appeal, Third District. In addition, James C. Parrish, Jr. filed a motion in the District Court of Appeal, Third District, for award of attorney's fees pursuant to Fla.App. Rule 3.16(e) and Section 440.34(1), Florida Statutes (1975)....

...e appellate court. Without specific permission by the appellate court, that judgment cannot be interfered with by the trial court. *468 The district court also held that respondents' attorney's fees should be assessed against petitioner, pursuant to Section 440.34(1), Florida Statutes (1975)....

...Waites, supra, which court found that leave of the appellate court was not required for the trial court to entertain a timely motion filed pursuant to Fla.R.Civ.P. 1.540(b), and (2) to reverse the order of the District Court of Appeal, Third District, awarding respondent attorney's fees pursuant to Section 440.34(1), Florida Statutes (1975)....

...on to modify the equitable distribution order, petitioner was essentially resisting payment of compensation by attempting to both deprive respondent of prospective payments and recover half of all benefits paid after October 1, 1974. The language of Section 440.34, Florida Statutes (1975), articulates the policy that the claimant should not be required to pay his own legal fees in attempting to retain past benefits paid or future benefits already determined to be forthcoming. Furthermore, the proceedings in the district court involved review of the equitable distribution award. Section 440.34, Florida Statutes (1975), was enacted to enable an injured employee who has not received an equitable compensation award to engage competent legal assistance and, in addition, to penalize a recalcitrant employer....

...stitute a net recovery. See Alpert, Florida Workmen's Compensation Law, § 15:10, p. 445 (1966). Cf., Steele v. A.D.H. Building Contractors, Inc., 196 So.2d 430 (Fla. 1967). Thus, in adding attorney's fees to the injured worker's compensation award, Section 440.34, Florida Statutes (1975), discourages the carrier from unnecessarily resisting claims in an attempt to force a settlement upon an injured worker....

...modest benefit due the claimant. Conversely, if the attorney believes the claim is frivolous, he would be inclined to decline representation. The conduct of the petitioner in the instant cause falls squarely within both the policy considerations of Section 440.34(1), Florida Statutes (1975), calling upon it to pay respondents' attorney's fees and the express language of that statutory provision....

...[3] See also the Report of Proposed Amendments to the Rules of Civil Procedure for the United States District Courts (1955), prepared by Advisory Committee on Rules for Civil Procedure, wherein the Advisory Committee recommended the position later adopted by the Court in Standard Oil. [4] § 440.34(1), Fla....

...We reject this argument, since the jury may have found no agency and no duty (therefore, no negligence) by being told that a finding of compensation or other benefit was a predicate. [5] The attorneys' fees section of the Workmen's Compensation Act, § 440.34, Fla....

...enses should not have been considered by the deputy commissioner when computing the claimant's average weekly wage and the concomitant compensation rate. The appellants also argue that the deputy erred in awarding Scott an attorney's fee pursuant to Section 440.34(2)(b), Florida Statutes (1979)....

...it. We reject the carrier's argument in its second point on appeal that the deputy erred in awarding an attorney's fee upon a finding that the carrier had demonstrated bad faith in its handling of the claimant's catastrophic disability benefits. See § 440.34(2)(b) (1979)....

...representing a claimant before an appellate tribunal. An award of an attorney fee to any litigant is in derogation of the common law, and it is allowed only when provided for by contract or statute. Stone v. Jeffres, 208 So.2d 827 (Fla. 1968). F.S. Section 440.34(1), F.S.A., does permit an award of attorney fees in connection with proceedings for review of any claim, award, or compensation order, but it allows only the reviewing court to make the award, in its discretion....

...l purpose of the Workmen's Compensation Act. Having disposed of the question of compensation, the Deputy Commissioner proceeded to the more difficult question of awarding attorneys fees to the successful claimants' attorneys. He concluded that under Section 440.34, F.S., F.S.A., attorneys for the successful claimants were entitled to compensation and that their fees should be paid by the carrier....

...On appeal to the full Commission, the finding of the Deputy Commissioner was affirmed on a two to one judgment. The sole question before the full Commission was that of attorneys fees. The full Commission held that since the carrier "declined" to pay the claims on or before the 21st day after notice, Section 440.34(1), F.S., F.S.A., was activated and accordingly entitled the successful claimants' attorneys to a reasonable fee....

...In this connection, the minority of the Commission contended that if the legislature had intended that if failure to pay a claim within 20 days after the carrier had notice thereof, would obligate the carrier to pay an attorney's fee, regardless of the circumstances, it would have been extremely simple for Sec. 440.34(1), F.S., F.S.A., to have used the word "fail" rather than "decline." The sole question raised in this court is the same as that which confronted the full Commission, that is to say, are the successful claimants under Sec. 440.34(1), F.S., F.S.A., entitled to an award of attorneys fees to be paid by the carrier? The answer to this question turns in the main on the interpretation of Sec. 440.34(1), F.S., F.S.A., 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 oth...

...investigation to determine these questions and that the claimants were entitled to representation at the investigation. This may not be true in all cases but when as here it is found to be true, attorneys fees may be imposed under the statute, Sec. 440.34(1), F.S., F.S.A....

...Weathers for Use and Benefit of Ocean Accident & Guarantee Corp. v. Cauthen, 152 Fla. 420, 12 So.2d 294. Moreover we are inclined to the view that the carrier was, as the Deputy Commissioner found, such an interested party in the proceedings as to justify imposition of attorneys fees under Sec. 440.34, F.S., F.S.A....

...Claimant also seeks an award of attorney's fees for appellate representation. Unfortunately, this court is without authority or jurisdiction to award such fees in the instant case since the accident occurred after the effective date of the 1979 amendments and before the 1980 amendments to § 440.34, Fla....

...A claimant has a number of remedies if a workers' compensation carrier wrongfully attempts to, or deprives or ignores, a request for medical treatment. Section 440.20, Florida Statutes (2000), sets a deadline for the timely payment of compensation claims and establishes penalties for late payments. Pursuant to section 440.34(3), Florida Statutes (2000), a claimant can recover attorneys' fees from the carrier in a claim for medical benefits....

...As indicated in Wuelling, 683 So.2d at 1092 n. 1, the carrier that takes no action can be subjected to the monetary penalties provided in section 440.20, the penalty assessed in Florida Administrative Code Rule 38F-24.0231 for untimely filing practices, and attorney's fees under section 440.34(3), Florida Statutes (Supp.1994), particularly under subsection (b) thereof, making the E/C responsible for the payment of claimant's attorney's fees in a case in which the E/C has filed a notice of denial and the claimant's attorney has successfully prosecuted the claim....

...The law did not restrict the claimant's ability to obtain medical examinations of his own choice. A testifying expert's witness fee might be assessed as costs, should the claimant prevail in a proceeding at which the expert testified. See Raska v. Glasgow Contracting, 588 So.2d 307 (Fla. 1st DCA 1991); § 440.34(3), Fla....

...for submission of proper proof of the amount of the bills. The third issue concerns the E/C's assertion that the deputy commissioner erred as a matter of law in awarding an attorney's fee of $30,000 for the services provided by claimant's attorney. Section 440.34, Florida Statutes, embodies legislative intent to standardize attorney's fee awards in the workers' compensation area, unless exceptional circumstances warrant a departure from the recommended fee schedule....

...1st DCA 1985), pet. for review denied, 475 So.2d 695 (Fla. 1985). Furthermore, an attorney's fee award will not be set aside merely because it exceeds the statutory rate, when the deputy commissioner's order reflects an appropriate consideration of the section 440.34(1) factors....

...Adams, 431 So.2d 167 (Fla. 1st DCA 1982). In keeping with legislative intent, when reviewing the propriety of an attorney's fee award, this court will examine the findings of fact rendered by the deputy commissioner pursuant to the statutory criteria set forth in section 440.34(1)....

...es. Rivers v. SCA Services of Florida, Inc., 488 So.2d 873 (Fla. 1st DCA 1986). Our review of the findings set forth in the order regarding the attorney's fee award in this case reveals that the deputy commissioner gave a proper consideration to the section 440.34(1) criteria....

...Watson, 397 So.2d 432 (Fla. 1st DCA 1981). Therefore the D.C. should have only used the contract of employment method. Appellant next argues that the D.C. incorrectly assessed a reasonable attorney fee in favor of claimant's counsel since the new statute, Section 440.34(2), Florida Statutes (1979), permits fees in only the following situations: (a) in cases where the claimant asserts a claim for medical benefits only, (b) in cases where the deputy makes a specific finding that the e/c acted in bad fai...

...e claimant suffered a compensable injury, but controverted only the right to TTD benefits after March 5, 1980. Once an e/c admits an accident and pays some disability benefits, but denies that others are due, an attorney's fee is not awardable under § 440.34(2)(c), Florida Statutes (1979)....

...It should be noted that Dolphin construed the e/c's controversion of the claim for catastrophic loss, provided in Section 440.15(2)(b), Florida Statutes (1979), as a denial of a catastrophic injury, thereby authorizing an award of attorney's fees pursuant to Section 440.34(2)(c)....

...1st DCA 1994), wherein this court concluded that because the carrier had not notified a physician of claimant's request for medical services within 21 days after the filing of same, the carrier was required to pay claimant's attorney fees, pursuant to section 440.34(3)(b), Florida Statutes (1989), [3] despite its direct notification to the attorney of the authorization within 21 days after its receipt of the notice of claim....

...Gold Coast Aerial Lift, 705 So.2d 636 (Fla. 1st DCA 1998); see also, e.g., City of Miami Beach v. Schiffman, 144 So.2d 799 (Fla.1962); Smith v. General Parcel Service, 699 So.2d 741 (Fla. 1st DCA 1997). REVERSED and REMANDED. PADOVANO and THOMAS, JJ., concur. NOTES [1] Section 440.34(3)(a), Florida Statutes, authorizes an award of fees to claimant if he or she prevails on a claim for medical benefits....

...One basis for an award of attorney’s fees was available to the claimants in Old Republic that was not available to the Con-nollys: those to a successful claimant where a “carrier has acted in bad faith” in handling a claim. See Fla.Stat.Ann. § 440.34(3)(b)....

...ereof together with statutory penalty, interest, and attorney’s fees); Florida ex rel. Iowa Nat’l Mut’l Ins. Co. v. Florida Industrial Comm’n, 151 So.2d 636, 641 (Fla.1963) (attorney’s fees denied to unsuccessful claimant). Florida Statute § 440.34(1) (1969) entitled a claimant to attorney’s fees under the 1969 version of the Act where a carrier unsuccessfully resisted payment of compensation, regardless of “bad faith.” See Fla.Stat. § 440.34(1) (1969)....

...cated that INA assumed coverage prior to the accident and then subsequently attempted to revoke same. The award of reimbursement is affirmed. However, the award of attorney fees in favor of Risk from INA must be reversed, as this court has held that Section 440.34, Florida Statutes, does not permit an award of fees to anyone other than claimant's attorney. Aetna Insurance Company v. Houck, 411 So.2d 936 (Fla. 1st DCA 1982). Risk's contention that it stood in the shoes of claimant is without merit, as Section 440.34 was intended to enable injured employees who had not received equitable compensation to engage competent legal assistance....

...s, including in that determination the period in December, 1979, regarding which some wage loss benefits have been paid. On cross appeal it is argued that it was error to hold claimant responsible for her own attorney's fees. It is argued that under Section 440.34(2)(c), Florida Statutes (1979), claimant is entitled to an award of attorney's fees because she prevailed on the issue of entitlement to additional benefits. Even if the basis for the TTD award had not been reversed, claimant would not be entitled to an award of attorney's fees under Section 440.34(2)(c), Florida Statutes (1979)....

...Michael Matthews of Fisher & Matthews, P.A., Altamonte Springs, for appellee. ERVIN, Judge. Under the 1979 workers' compensation law, claimant and appellee, William T. Morris was awarded temporary total disability (TTD) benefits, remedial care, and attorney's fees pursuant to Section 440.34(2)(c), Florida Statutes (1979)....

...are must also be reversed. See Lake County Commissioners v. Walburn, 409 So.2d 153, 155 (Fla. 1st DCA 1982); Killebrew Manufacturing Co. v. Dawson, 401 So.2d 876, 877 (Fla. 1st DCA 1981). The claimant also sought attorney's fees pursuant to Sections 440.34(2)(a), (b), (c), Florida Statutes (1979). The deputy commissioner did not rule on the possibility of a fee award based on the first and second sub-sections, because he found that a fee award was justified pursuant to Section 440.34(2)(c)....

...May, 397 So.2d 1003 (Fla. 1st DCA 1981); Ardmore Farms, supra, at 270. The e/c, having paid medical and temporary benefits until September 2, 1980, has obviously removed itself from the type of situation allowing the imposition of sanctions implicit in the award of Section 440.34(2)(c) fees. The fee award is reversed. However, we remand this case so that the deputy may address the issue of the propriety of a fee award based on Sections 440.34(2)(a), (b), and for the determination of the precise date of MMI....

...d of attorney's fees for appellate representation. That petition must be denied, because this court has no authority or jurisdiction to award such fees herein, since the claimant's accident occurred after the effective date of the 1979 amendments to § 440.34, Fla....

...ew of any claim, award or compensation order before any court, the court may allow or increase the attorney's fees, in its discretion, which fees shall be in addition to the compensation paid the claimant, and shall be paid as the court may direct." § 440.34(3), Fla. Stat. (Supp. 1978). This language was deleted entirely by the 1979 amendments to § 440.34, Fla. Stat. [*] *1205 Section 440.34(2), Fla. Stat. (1979), states that "[a] claimant shall be responsible for the payment of his own attorney's fees... ." There are three exceptions to this statutory pronouncement, see § 440.34(2)(a)-(c), Fla....

...uation of all the evidence, including that evidence pointing to the fact that claimant was still undergoing treatment of sorts during a substantial portion of that time. NOTES [*] While this language was essentially reinserted into the statutes, via § 440.34(5), Fla....

...ttorney's fees. We have determined that in the present case, this court has no authority or jurisdiction to award attorney's fees to be paid by the employer/carrier. The claimant's accident occurred after the effective date of the 1979 amendments to § 440.34, Fla....

...ew of any claim, award or compensation order before any court, the court may allow or increase the attorney's fees, in its discretion, which fees shall be in addition to the compensation paid the claimant, and shall be paid as the court may direct." § 440.34(3), Fla. Stat. (Supp. 1978). This language was deleted entirely by the 1979 amendments to § 440.34, Fla. Stat. Section 440.34(2), Fla. Stat. (1979), states that "[a] claimant shall be responsible for the payment of his own attorney's fees... ." There are three exceptions to this statutory pronouncement, see § 440.34(2)(a)-(c), Fla....

...ate level, then this court would be authorized to award appellate attorney's fees. See § 59.46(1), Fla. Stat. (1979). However, we have determined, and the parties have agreed, that none of these conditions exist herein. The claimant points out that § 440.34(5), Fla....

...hether the appeal was instituted prior to the effective date of the statute — not whether the statute was in effect at the time of the appellate disposition of the cause. In the present case, the appeal was instituted prior to the effective date of § 440.34(5), Fla. Stat. (Supp. 1980), and therefore, that statute does not apply to this cause. Even if this appeal had been instituted after the effective date of § 440.34(5), Fla. Stat. (Supp. 1980), the claimant would not be entitled to an award of appellate attorney's fees payable by the employer/carrier. Section 440.34(5), Fla....

...oyee." (emphasis supplied) In the case at bar, the claimant's injury occurred in August, 1979, and at that time, there was no applicable statute which could have been used to award appellate attorney's fees, to be paid by the employer/carrier. While § 440.34(5), Fla....

...This rule applies to statutes that substantially change the liability of the employer/carrier as to awards of attorney's fees, see Duff Hotel Co. v. Ficara, 9 So.2d 360 (Fla. 1942); Hardware Mut. Cas. Co. v. Carlton, 151 Fla. 238, 9 So.2d 359 (Fla. 1942); and § 440.34(5), Fla....

...ttorney's fees was denied. 9 So.2d at 359-60. Here, just as in Carlton, at the time of the claimant's injury, there was no basis for an award of attorney's fees against the employer/carrier. While this situation has been changed with the addition of § 440.34(5), Fla....

...1980), this statute, just as in the 1941 statute in Carlton, "substantially changed the liability of the employer and the insurance carrier from what it was when the injury occurred." 9 So.2d at 359. Therefore, this court could not retroactively apply § 440.34(5) (Supp....

...ier. However, we point out that our decision is without prejudice to the claimant's attorneys' right to a fee, to be paid by the claimant, for services rendered on appeal, after the Deputy Commissioner has approved the reasonableness of the fee. See § 440.34(1) and (2), Fla. Stat. (1979). SHIVERS and SHAW, JJ., concur. NOTES [*] This law, which was codified at § 440.34, Fla....

...rder before any Court, the Court may allow or increase the attorney's fees, in its discretion, which fees shall be in addition to the compensation paid the claimant, and shall be paid as the Court may direct." This language is virtually identical to § 440.34(5), Fla....

...A claimant has a number of remedies if a workers' compensation carrier wrongfully attempts to, or deprives or ignores, a request for medical treatment. Section 440.20, Florida Statutes (2000), sets a deadline for the timely payment of compensation claims and establishes penalties for late payments. Pursuant to section 440.34(3), Florida Statutes (2000), a claimant can recover attorneys' fees from the carrier in a claim for medical benefits....

...that the plain language of section 440.192(7), Florida Statutes (2001), precluded the consideration of same. Because the JCC's interpretation is one of law, our review standard is de novo. Section 440.192(7) states: Notwithstanding the provisions of s. 440.34, a judge of compensation claims may not award attorney's fees payable by the carrier for services expended or costs incurred prior to the filing of a petition that does not meet the requirements of this section....

...preclusion of fees to a petition that fails to satisfy the statute's requirements. Under the circumstances, the provisions of subsection (7) obviously cannot be considered in isolation from other pertinent statutory specifications, namely, those in section 440.34, relating to the factors to be considered in awarding claimant's attorney fees, and those in section 440.192(2), setting out the requisites of a petition for benefits....

...JFK Mem'l Hosp., 624 So.2d 322 (Fla. 1st DCA 1993); Smith v. U.S. Sugar Corp., 624 So.2d 315, 319 (Fla. 1st DCA 1993). Accordingly, once the JCC decides, as he did here, that the application of the statutory factors for assessing a presumptive fee, as provided in section 440.34(1), is "manifestly unfair," the JCC may depart upward or downward, and, in deciding what is a reasonable hourly rate, he or she may consider the fee customarily charged in the area for similar legal work....

...Skidmore, 720 So.2d 1125, 1130 (Fla. 4th DCA 1998). We consider that the JCC's reference to the Guidelines was misplaced. Although no provision under chapter 440 explicitly approves the taxing as costs of pleadings required to be served by certified mail, section 440.34(3) permits a prevailing claimant to tax against the employer "the reasonable costs of such proceedings." We cannot conceive it to be the legislative intent that an injured worker who successfully prosecutes a claim against his or her employer should not be made whole for all costs necessary to maintain the claim....

...For example, this court has observed that the Rowe ( Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985)) lodestar approach, with its contingency factors, used for assessing a reasonable attorney fee, has no applicability to fee awards in which a statute, such as section 440.34, sets out its own criteria....

...They also argue that "contingency" fees are inappropriate in workers' compensation cases, citing Southern Bell Telephone and Telegraph Company v. Rollins, 390 So.2d 93 (Fla. 1st DCA 1980). In addition, the E/C assert that the deputy commissioner erred in his finding that the "fee customarily charged" in the locality (section 440.34(1)(c), Florida Statutes) is the statutorily scheduled amount, and that it was error for the deputy to reject the appellants' contention that this component of the statutory formula must be reduced to an hourly rate....

...Shulenberger's testimony and opinions over those of Dr. Fishe. "Also admitted into evidence was a packet of information including a statement of Jerold Feuer, his hours and some memos produced for the case. A sheet showing comparisons for the various elements found in Section 440.34, Florida Statutes involving both the Sitko case and the case of Florida Medical Center v....

...aking inflation into account and is, indeed, the present value of the benefits secured through the efforts of Mr. Feuer. * * * * * * *500 "4. I find that the 25%/20%/15% numerical schedule gives a starting point attorney's fees of $2,640,000.00. "5. Section 440.34, Florida Statutes, requires a Deputy Commissioner to consider numerous other criteria in a determination of whether the fee schedule initial amount should be raised or lowered....

...r difficulty, novelty and complexity standards to be applied. One position of the Employer/Carrier in this case was that this particular case was so exceptional in the size of the present value of the award so as to remove it from the purview of the 440.34 schedule....

...of law that I have seen in my 10 years on the bench and time in practice before that. It was also the most difficult, complex and novel case that I have seen in that period of time. The standard for determination of the various factors contained in Section 440.34(1)(a) through (h) is not based on the particular lawyer involved, other than that factor dealing with experience, ability and reputation of the lawyer involved, but is based on the average attorney practicing in the State of Florida an...

...I find that Von Stetina, while it is relevant and material, is not controlling here as Workers' Compensation attorney's fees start with a statutory fee schedule set by the legislature to standardize fees. That schedule is presumed correct until one or a combination of the eight factors and sets of factors in Section 440.34 shows that that figure should be raised or lowered....

...I find that the factor involving the amount in controversy and the fact that the benefits resulting to the Claimant are the same tends to raise the fee above the statutory schedulor, at worst, is a neutral element. I find that the consideration found in Section 440.34(b) is a neutral element....

...t or above the statutory schedule. "12. First District Court decisions show that to judge the excessiveness of an attorney's fee award or to award one solely on the basis of its per hour rate is not proper and ignores the sliding scale provisions of Section 440.34 as well as legislative intent....

...Were I to accept Dr. Fishe's opinions from tables 7, 8 and 10 of his exhibit, giving a total present benefit value of $11.71 million, the fee would be the same. There the hourly rate factor would be the same as the present result and the other factors of 440.34(1) (a-h) would be comparable except for the amount in controversy." [1] The depth of consideration given to the statutory factors by the deputy commissioner is apparent from the portions of his order above reproduced....

...to permit the accrual of prejudgment interest on attorney's fees in worker's compensation cases from the date entitlement to the fee is determined even though the amount of the award has not yet been determined. We held in the negative, finding that section 440.34(1), Florida Statutes (1997), precluded the payment of attorney's fees in workers' compensation cases until the amount of the fees was established by final order. We reached that conclusion because section 440.34(1) provided that no fee could be paid in workers' compensation cases for services rendered until approved by the workers' compensation claims judge....

...4, of the Florida Constitution, F.S.A., and requested briefs on the question, presented for the first time by a motion in this cause, of awarding a claimant's attorney's fees for services in successfully resisting the application for the writ in such circumstances. F.S. § 440.34, F.S.A., reads in part as follows: "(1) * * * If any proceedings are had for review of any claim, award or compensation order before any court, the court may allow or increase the attorney's fees, in its discretion, which fees shall be in a...

...were correctly and voluntarily paid by Appellees based, in part, on his AWW at that time. This determination requires the JCC to recompute Appellant's entitlement to attorney's fees, which is based upon the benefits secured *161 by his attorney. See § 440.34(2), Fla. Stat. (1997); see also Wiseman v. AT & T Technologies, Inc., 569 So.2d 508, 511 (Fla. 1st DCA 1990) (holding § 440.34(2) is construed to mean fee should be based on the total benefits secured as a result of the attorney's intervention); Monterey Builders v....

...Taylor of Stiles, Taylor & Grace, P.A., Atlanta, for Amicus Curiae/Florida Insurance Council. PER CURIAM. The claimant seeks review of a final order of the judge of compensation claims (JCC), denying stipulated attorney's fees as being in excess of the fees permitted by section 440.34(1), Florida Statutes (2004), and approving a fee permitted by section 440.34(1). On appeal, the claimant contends that: (1) section 440.34(1) should be construed to allow the payment of a reasonable fee that exceeds the mandated percentage of benefits secured; (2) the JCC should have approved the parties' joint stipulation agreement providing for fees in excess of that allowed by statute pursuant to Spitzer v. Bartlett Bros. Roofing, 437 So.2d 758 (Fla. 1st DCA 1983); and (3) section 440.34(1) violates the separation of powers doctrine, the due process clause, the equal protection clause, the right to counsel, and the right to freely contract as provided by the Florida Constitution....

...t $1,700 in past indemnity benefits and pay counsel for the claimant $1,900 for securing the benefits. The JCC denied approval of the stipulated fees, reasoning that she was without authority to approve a fee in excess of $340, the amount allowed by section 440.34(1). *509 The JCC entered an order approving the statutory fee of $340, and this appeal followed. The JCC properly construed section 440.34(1). In Wood v. Fla. Rock Indus., 929 So.2d 542 (Fla. 1st DCA 2006)(amended May 25, 2006, to certify a question of great public importance), this court explained that "the court must presume that the legislature intended the amended statute [section 440.34(1)] to mean what it clearly says." The statute begins by generally providing that no fee may be paid under chapter 440 unless approved as reasonable, and then specifically addresses the approval of fees "for benefits secured" by setting forth the formula for determining the amount of fees to be paid. A JCC may approve a fee as reasonable under section 440.34(1) when the fee equals the statutory percentage of benefits secured....

...2d DCA 1986)("Where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control."). Spitzer does not serve as an exception to the provisions set forth in section 440.34(1)....

...Reversing, this court noted that "[i]t is the policy of the law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes." Id. at 760. Though Spitzer is still good law, it is not controlling in this case because section 440.34(1) expressly prohibits a JCC from approving a fee in excess of the statutory percentage....

...The party challenging a statute has the burden to demonstrate the unconstitutionality of the statute by negating every conceivable basis for upholding the law. Burley, 707 So.2d at 839. The claimant in this case has not met that burden. The legislature did not encroach upon the powers of the judiciary by amending section 440.34(1) to restrict the payment of fees to a percentage of the benefits secured....

...Furthermore, the legislature is charged with setting forth the criteria it deems will further the purpose of workers' compensation law and will result in a reasonable fee. See id.; see also Schick v. Dep't of Agric. & Consumer Servs., 599 So.2d 641, 644 (Fla.1992). Therefore, section 440.34(1) does not violate the separation of powers doctrine. Nor does section 440.34(1) violate the equal protection clause or the due process clause, which, inter alia, protects the *510 right to be represented by counsel. In limiting fees to a percentage of the benefits secured, section 440.34(1) bears a reasonable relationship to the state's interest in regulating fees so as to preserve the benefits awarded to the claimant. See Samaha, 389 So.2d at 640. Section 440.34(1) is not discriminatory, arbitrary or oppressive because it applies to all claimants in a workers' compensation proceeding, and sets forth a definite formula for determining attorney's fees so as to protect the claimant's interest in retaining a substantial portion of the benefits secured. Therefore, section 440.34(1) does not deny a claimant equal protection, due process, or the right to be represented by counsel. The claimant has also failed to demonstrate that section 440.34(1) impermissibly restricts the right to freely contract....

...A statute restricting the right to contract will not be invalidated if the restriction was enacted to protect the public's health, safety, or welfare. Khoury v. Carvel Homes S., Inc., 403 So.2d 1043, 1046 (Fla. 1st DCA 1981). The restrictions set forth in section 440.34(1) were enacted to protect the public's welfare by ensuring that a worker is able to retain a substantial portion of awarded benefits so as to prevent the burden of support for that worker from being cast upon society. Therefore, the statute does not offend the right to freely contract. Although the claimant abandoned the issue of whether section 440.34(1) denies access to courts during oral argument, we note that the statute has not been shown to deny access....

...The claimant has failed to demonstrate that the statute has unduly burdened a claimant's ability to retain counsel in order to secure benefits, or that the statute limits the types of benefits a claimant is authorized to pursue under chapter 440. Because the claimant has not demonstrated that section 440.34(1) has abolished or unduly burdened a claimant's right to obtain benefits under chapter 440, we cannot conclude that the statute denies access to courts. See Burley, 707 So.2d at 839; Strohm v. Hertz Corp., 685 So.2d 37, 39 (Fla. 1st DCA 1996). In conclusion, the claimant has not demonstrated that section 440.34(1) is constitutionally infirm or that the JCC otherwise erred in declining to approve a fee in excess of the fee permitted by section 440.34(1). Therefore, we affirm the order of the JCC. As in Wood, however, we certify the following question of great public importance: DO THE AMENDED PROVISIONS OF SECTION 440.34(1), FLORIDA STATUTES (2003), CLEARLY AND UNAMBIGUOUSLY ESTABLISH THE PERCENTAGE FEE FORMULA PROVIDED THEREIN AS THE SOLE STANDARD FOR DETERMINING THE REASONABLENESS OF AN ATTORNEY'S FEE TO BE AWARDED A CLAIMANT? AFFIRMED....

...ERVIN, J., concurring. I concur with the majority's disposition of the constitutional issues that it has specifically addressed. I also concur with the question certified. In addition, I strongly doubt that the Florida worker's compensation attorney-fee statute, section 440.34(1), Florida Statutes (2003), could be subjected to a successful facial constitutional challenge, *511 which requires the challenger to establish that no set of circumstances exists under which the statute could be determined valid in t...

...At the time of the adoption of the Florida Constitution an employee had a common-law right of action for damages against his or her employer resulting from an employment-related injury. I strongly question whether a challenger to the constitutional validity of section 440.34(1), as applied to any set of facts, could satisfy the Kluger test, because the legislature still provides the employee the right to pursue a workers' compensation claim against his or her employer, despite the modification of the employee's right to recover fees from the employer....

...obviated by simply interpreting the statute as ambiguous, thereby allowing a judge of compensation claims (JCC) the discretion to award a fee as reasonable, notwithstanding that such amount might exceed that permitted by the fee schedule provided in section 440.34(1)....

...ee with that authorized by the statutory percentage formula, which is the construction I would place on the statute were it not for the recent decision of this court in Wood v. Florida Rock Industries, 929 So.2d 542 (Fla. 1st DCA 2006), interpreting section 440.34(1) as requiring a JCC to "approve a fee as `reasonable' only when it equals a statutorily established percentage of the value of benefits secured on behalf of the Claimant." Id. at 545. Unlike the panel in Wood, I am unable to find in the statute such clarity of legislative purpose. Section 440.34(1) was amended by chapter 2003-412, section 26, Laws of Florida, to provide as follows: (1) A fee, gratuity, or other consideration may not be paid for services rendered for a claimant in connection with any proceedings arising under t...

...rate of $13.08. The JCC clearly found herself in a dilemma. She made no finding that a fee of $340 was, under the facts, reasonable, but she felt constrained by the statute to award a fee consistent with the statutory formula. Nowhere, however, does section 440.34 define the term "reasonable," nor have I found any language in it suggesting that the legislature intended to replace the ordinary definition given it, meaning "fair, proper, or moderate under the circumstances," or "[a]ccording to reason." BLACK'S LAW DICTIONARY 1293 (8th ed.2004)....

...t, if such were its intent, this legislation does not display it. As stated, I find nothing in the statute restricting a judge's determination of a fee's reasonableness to the percentage formula, and my conclusion is supported by other provisions of section 440.34....

...yer's cost of workers' compensation insurance premiums, particularly in circumstances where the fee authorized by the formula is substantial, and the attorney's involvement minimal. In my judgment, the legislature, in drafting the 2003 amendments to section 440.34, could not have reasonably contemplated such bizarre results. NOTES [1] Section 440.34(7) explicitly, unlike other provisions authorizing recovery of fees for the successful prosecution of certain types of claims, limits recovery of a fee from the employer in a medical-benefits-only claim to $1500 per accident.

...McKnight of William H. McKnight, P.A., Tampa, for Appellant. Joey D. Oquist of Joey D. Oquist & Associates, P.A., St. Petersburg, for Appellees. ALLEN, J. The claimant appeals a workers' compensation order denying his request for an attorney's fee award under section 440.34(3)(b), Florida Statutes. As the claimant asserts, he established the necessary predicate for a fee award under the statute and thus should have been found entitled to payment of his attorney's fee. *633 Section 440.34(3)(b), as effective when the claimant was injured in 1996, provided for the recovery of an attorney's fee when the employer or carrier files a notice of denial and the claimant has employed an attorney in the successful prosecution of a claim for benefits....

...Gold Coast Aerial Lift, 705 So.2d 636 (Fla. 1st DCA 1998); see also, e.g., City of Miami Beach v. Schiffman, 144 So.2d 799 (Fla. 1962); Smith v. General Parcel Service, 699 So.2d 741 (Fla. 1st DCA 1997). The claimant thus met both of the necessary criteria under section 440.34(3)(b), so as to establish entitlement to an attorney's fee award....

...ution being achieved on acceptance and payment of the claim. Insofar as the employer/carrier denied the claim which the claimant's attorney thereafter successfully prosecuted, the claimant established his entitlement to an attorney's fee award under section 440.34(3)(b)....

...In this workers' compensation appeal, the employer/carrier challenges the deputy commissioner's order which found that the employer's bad faith refusal to notify the carrier of the claim imputed bad faith to the carrier. As a result, the carrier was ordered to pay the claimant's attorney's fees pursuant to § 440.34(2)(b), Florida Statutes (1979). [1] The employer/carrier asserts that the deputy erred in two respects: first, § 440.34(2)(b) applies only to acts of bad faith attributable solely to the carrier; and second, even if the employer's acts can be imputed to the carrier, those acts did not meet the definition of "bad faith" provided for in the statute....

...yer until November 26, 1979. The carrier proceeded to pay compensation benefits to claimant on November 30th. The deputy commissioner found that the employer's actions in this case were in bad faith and caused economic loss to the claimant. Although § 440.34(2)(b) refers only to the carrier's bad faith in the handling of the claim, the deputy imputed bad faith to the carrier through § 440.41(1), Florida Statutes (1979), which provides: In any case where the employer is not a self-insurer, in o...

...chapter. For such purposes: (1) Notice to or knowledge of an employer of the occurrence of the injury shall be notice to or knowledge of the carrier. The deputy reasoned that under § 440.41, the employer was the carrier's alter ego for purposes of § 440.34(2)(b) and the manner in which the claim was handled....

...eceived actual notice of the injury, § 440.41(1) imputes the employer's knowledge of the injury and its dilatory tactics in handling the claim to the carrier. The employer/carrier disagrees with the deputy's statutory interpretation and argues that § 440.34(2)(b) was not intended to apply to an employer's wrongful acts. In oral argument, the employer/carrier referred to several statutory provisions in an effort to shed light on the legislative intent of § 440.34(2)(b). Under § 440.34(2), any payment of attorney's fees that is required by subsection (b) may not "be recouped, directly or indirectly, by any carrier in the rate base, premium, or any rate filing." This provision, in effect, makes the carrier fully responsibl...

...In conjunction with this argument, the employer/carrier also contends that § 440.41's provision imputing the employer's knowledge or notice to the carrier applies only to impute an employer's liability for "compensation" to the carrier and does not operate to impute liability for a "penalty" provision such as § 440.34(2). In response to the claimant's contention that § 440.34(2)(b) was clearly intended to prevent exactly the type of recalcitrant conduct engaged in by the employer in this case, the employer/carrier points to § 440.185(2) and (9)....

...dge of the injury. The employer/carrier argues that the civil penalty is the counterpart to the attorney's fees "penalty" assessed against the carrier for bad faith. A common thread in each of the employer/carrier's arguments is the proposition that § 440.34(2)(b) is a penalty provision....

...Under this rationale § 440.41(1) would operate to impute notice to the carrier since that section was intended to assist in the effective administration and discharge of "liability for compensation." Claimant's analysis of the purpose and effect of § 440.34(2)(b) coincides nicely with this Court's recent decision in Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). In that case, the carrier argued that "bad faith" under § 440.34(2)(b) should be defined by the strict interpretation given that term in cases dealing with punitive damages. As in the case before us, the carrier's basic assumption was that § 440.34(2)(b) was primarily intended to be a penalty provision....

...For this reason, a claimant is now generally required to pay his or her own attorney's fees. The limited instances where attorney's fees are awardable, however, involve occasions where the employer/carrier's actions in totally rejecting the claim for disability (§ 440.34(2)(c)) or medial benefits (§ 440.34(2)(a)) or, as in this case, in ignoring and mishandling the claim (§ 440.34(2)(b)) necessitated the claimant's use of legal assistance to recover payment of benefits....

...Therefore, the court in McDonald concluded that the "award of attorney's fees under the bad faith provision of the new act does no more than reimburse the claimant for expenses incurred in the assertion of his right to benefits." 395 So.2d at 208. Despite the obvious deterrent effect, the attorney's fee award of § 440.34(2)(b) was clearly intended to compensate the claimant for the monetary losses sustained in trying to force some action on the claim. Admittedly, § 440.34(2)(b) refers only to the carrier's bad faith in handling the claim....

...By the same token, liability for the monetary damages suffered by the claimant as a result of delayed notice would certainly not be "effectively discharged" if the employer's notice could not be imputed to the carrier under § 440.41(1). In reaching this result, we have not neglected or ignored § 440.34(2), which prevents the carrier from recovering the attorney's fees payment from the dilatory employer....

...Where, as in this case, the carrier has acted diligently, this provision does seem to result in an unfair burden on the carrier. Unfortunately, the legislature has left us with a situation where any decision we make will result in an inconsistency. We have chosen to construe § 440.34(2)(b) consistently with § 440.41 and the purpose of the Workers' Compensation Act....

...This interpretation is in keeping with our obligation to construe remedial legislation "in such a manner as to effectuate the purpose for which it was enacted." McDonald, 395 So.2d at 210, citing Gillespie v. Anderson, 123 So.2d 458 (Fla. 1960). AFFIRMED. MILLS and SHAW, JJ., concur. NOTES [1] Section 440.34(2)(b) entitled a claimant to recover attorney's fees from a carrier or employer: "In cases where the deputy commissioner issues an order finding that a carrier has acted in bad faith with regard to handling an injured worker's claim and the injured worker has suffered economic loss....

...to award a further fee; and whether the additional fee awarded was excessive. To this petition the respondent-claimant filed his motion to quash. The motion was predicated upon the argument it was clear that an attorney's fee should be allowed under Section 440.34(1), F.S.A....

...warranted a further award of attorneys' fees even though it was an award of a penalty rather than one for disability compensation. Subsequently, this Court has further broadened its construction of the word "compensation" as related to the statute, Section 440.34(1)....

...In Ringling Bros., 134 So.2d 244, supra, "compensation" was construed to include the payment of medical benefits. We concluded that an award of attorneys' fees was proper when there had been an award benefiting the claimant. Our position therein is substantiated by the statute, Section 440.34(1), which reads as follows: "(1) If the employer or carrier shall file notice of controversy as provided in § 440.20 * * *, or shall decline to pay a claim on or before the twenty-first day after they have notice of same, or shall oth...

...counsel at this stage, or to call again upon counsel already retained, to enforce his rights. He should not be impeded by the thought of counsel fees which may render the enterprise an empty gesture so far as he is concerned. The salutary purpose of Section 440.34(1), which is one of the few provisions of its kind in the United States, should not be nullified by restrictive interpretation....

...ediately paid compensation benefits to the claimant based thereon does not remove its liability for attorneys' fees. The City unsuccessfully resisted the payment of the claim for additional benefits beyond the 21-day period specified in the statute, Section 440.34(1)....

...aim since the employer's prior refusal to pay benefits to him necessitated his employing *805 counsel to obtain such benefits. In support thereof he referred to our statements in Taff. This Court ruled, as it was compelled to do by the provisions of Section 440.34(1), that since the compensation was paid within 21 days of the filing of the claim the employer was not responsible for the attorneys' fees....

...Rissman of Cooper & Rissman, P.A., Orlando, for appellants. Paul Smalbein of Smalbein, Eubank, Johnson, Rosier & Bussey, Rockledge, for appellee. PER CURIAM. Employer/carrier appeal the order of the Deputy Commissioner finding claimant temporarily totally disabled and awarding her attorney's fees under 440.34(2)(b), Florida Statutes (1979)....

...[Claimant]: This is part of the claimant's — Deputy Commissioner: All right. I'll allow it. Overruled. [Claimant]: We can have an attorney's fee hearing later, whether or not the facts justify — Deputy Commissioner: This is for entitlement. All right. Continue. On appeal, appellant urges that under Section 440.34(2)(b) entitlement to attorney's fees based on bad faith may only be determined at a hearing separate and apart from the hearing on other matters....

...ar hearing and to hold a later hearing or submit affidavits to prove amounts. Appellant failed to claim prejudice at the hearing below and has demonstrated no prejudice in his brief on appeal. Farm Stores v. Dyrda, 384 So.2d 269 (Fla. 1st DCA 1980). Section 440.34(2)(b) in pertinent part provides: "Any determination of bad faith shall be made by the deputy commissioner through a separate fact-finding proceeding." We do not read this language as requiring the deputy commissioner to hold a completely separate hearing on the question of bad faith....

...KAHN, DAVIS and BENTON, JJ., concur. ERVIN, J., concurs with result. NOTES [1] Sections 440.20(6), 440.20(7), and 440.20(8) provide sanctions (penalties and interest) for the carrier's failure to timely pay compensation within seven days after it becomes due. Section 440.34(3) provides for payment of the claimant's attorney fees by the carrier or employer under certain conditions, including denial of compensability....

...However, the amount of the fee is at least unusual. We therefore deem it appropriate to employ the instant order as a basis for announcing certain minimum rules which we think should be used as guides in fixing attorneys' fees in matters of this kind. Section 440.34, Florida Statutes, F.S.A....

...We have held that the burden to establish attorneys' fees is always on the claimant. Balatsos v. Nebraska Ave. Cafe and Liquor Store, 159 Fla. 71, 30 So.2d 633. The statute, of course, authorizes the award of a fee under circumstances thereby defined. Section 440.34, Florida Statutes, F.S.A....

...Kupfer of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellee. LILES, WOODIE A., Associate Judge (Retired). The employer/carrier appeals from a deputy commissioner's order awarding to the claimant a reasonable attorney's fee pursuant to Section 440.34(2)(c), Florida Statutes (1979)....

...Since they did not deny that an injury occurred for which compensation benefits were payable and in fact stipulated to the contrary, the employer/carrier argues that this case does not involve the denial of a compensable accident within the purview of Section 440.34(2)(c), Florida Statutes (1979)....

...ch compensation benefits were payable, and the claimant prevailed in obtaining these compensable benefits. In light of the self-executing tenor of the Act and the principles enunciated above, we conclude that this factual situation is encompassed by Section 440.34(2)(c) and that the claimant was entitled to an attorney's fee. It is arguable, of course, that the legislature intended that attorney's fees only be awarded where the employer/carrier denies any right to compensability. However, such a narrow interpretation of Section 440.34(2)(c) is contrary to the underlying policy to construe doubtful provisions of the Workers' Compensation Act in favor of the claimant....

...Lindenfeld even though they were in receipt of his psychological report that clearly sets out that as a result of her industrial accident, Claimant was in need of psychological care and treatment. Entitlement to attorney's fees based on bad faith under Section 440.34(3)(b), Florida Statutes (1983) [2] must be specifically litigated as a separate issue at the hearing with factual evidence presented going directly to that issue....

...f the claimant's condition which are consistent with this opinion. Attorney's Fees As the JCC did not err in finding that the claimant prevailed on his compensation claims, the JCC properly awarded the claimant an entitlement to attorney's fees. See § 440.34, Fla....

...In addition to the above two issues, the E/C raise a third issue for the first time on appeal. They contend that they are not responsible for paying the entire amount awarded for attorney's fees, but rather they are responsible for paying only seventy-five percent (75%) of that amount pursuant to the provisions of section 440.34(1), Florida Statutes (1978), in effect when claimant was injured, which provided in part as follows: With respect to attorney's fees on claims for benefits other than medical benefits, 75 percent shall be paid by the employer or carrie...

...1951, 55 So.2d 741." It is seen, therefore, that the issue here is precisely limited to the question, in the light of the facts and circumstances recited in the stipulation, of whether there is any basis in law or in fact for the award of the mentioned attorney's fees. Section 440.34(1), Florida Statutes, F.S.A., provides: "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 had notice of s...

...rst aid' or proper medical treatment during such delay, and every presumption shall be against the validity of the claim." It is evident that the notice contemplated by Section 440.18, supra, is separate and distinct from a "claim" as referred to in Section 440.34(1), supra, and from a "claim" as referred to in Section 440.19(1) (a), (c), also to be considered in pari materia and upon which the employer relies, providing as follows: "(1) (a) The right to compensation for disability under this ch...

...e cases where voluntary payment of compensation is made or remedial treatment furnished until the date *433 of the last payment of compensation or the date of the last remedial treatment. Considering this provision in the light of its application to Section 440.34(1), it is clear that no attorney's fee is payable by the employer or its carrier in the case on review because by the latter section the obligation of the employer to pay for the services of the employee's attorney is limited to those...

...t on the amount dating from 21 days after a joint stipulation was approved by order. We reverse only the second point. On August 21, 1978 the deputy originally awarded a fee of $10,000, deviating only slightly from the statutory formula set forth in Section 440.34, [1] Florida Statutes (1977) because there was nothing particularly unique or novel about the issues in the *454 case and attorney time should not have exceeded 40 hours....

...On remand, the deputy reduced the award to $7,950.00. Under the sliding scale provisions of the statute an award would initially have been set at $11,025.00. In affirming the first point, we have considered the percentage fee schedule and Lee Engineering [2] factors codified in Section 440.34, effective here after the accident date, but before the time of the deputy's award....

...le fee. Therefore, the interest in this case should run from the date of January 15, 1980, the date of the appealed order. Affirmed in part and reversed in part. McCORD, SHIVERS and JOANOS, JJ., concur. NOTES [1] The statute in relevant part states: 440.34 (1) [T]here shall, in addition to the award for compensation, be awarded a reasonable attorney's fee of 25 percent of the first $5,000 of the amount of the benefits secured, 20 percent of the next $5,000 of the amount of the benefits secured,...

...laim. No similar provision is made for attorney’s fees. . In contrast, Florida’s Workers' Compensation Law requires every workers’ compensation insurance policy to include coverage for attorney's fees entered against the insured employer under section 440.34, Florida Statutes (2008)....

...that the insurance carrier is liable for the obligations and duties that chapter 440, Florida Statutes (2008), imposes upon the employer. One such obligation and duty that, therefore, must be included in the insurance policy is attorney's fees under section 440.34. See Fla. Ins. Guar. Ass’n v. Gustinger, 390 So.2d 420, 421 (Fla. 3d DCA 1980) (stating that a section 440.34 attorney’s fee award was a covered claim ”[s]ince the workmen’s compensation policy issued by [the carrier] to [the employer] obviously insured against the employer’s responsibility to pay the claimant’s attorney’s fees”); Dilme v. SBP Service, Inc., 649 So.2d 934, 935 (Fla. 1st DCA 1995) (holding a section 440.34 fee award to be within the coverage of the employer’s workers' compensation insurance policy); What An Idea, Inc....

...e issue of the fee to be awarded claimant's attorneys for prosecuting the merits claim. The undersigned has considered the factors set forth in the landmark decision of the Supreme Court in Lee Engineering as well as the schedule provided in Chapter 440.34, Florida Statutes......

...better than even chance of successfully prosecuting their particular claim. But, as stated by the First DCA in [ What an Idea, Inc. v. ] Sitko [505 So.2d 497 (Fla. 1st DCA 1987)], Rowe is not applicable because we have the guideline fee schedule in Section 440.34, F.S....

...fee is awarded may have no potential for collateral consequences. On that basis we distinguish the cited decisions and decline to compel a determination of the bad faith issue by the deputy. For purposes of determining an attorney's fee award under section 440.34(1), Florida Statutes, a starting point in the analysis is the amount of benefits obtained for the claimant by his attorney. Prestressed Decking, supra, at 405. Section 440.34 embodies a legislative intent to standardize the method for assessing fees absent special circumstances, and when a deputy departs from the statutory schedule, his order should reflect that he considered all of the relevant, prescribed factors to the extent that circumstances permit....

...An attorney's fee award will not be set aside merely because it varies from the statutory rate, when the deputy commissioner's order reflects an appropriate consideration of the statutory factors. Id. In this case, the order contains very specific findings as to each of the criteria enumerated in section 440.34(1)....

...NIMMONS, J., CONCURS; ZEHMER, J., DISSENTS W/WRITTEN OPINION. ZEHMER, Judge (dissenting). While I agree, for the reasons stated in the court's opinion, that there is no need for a bad faith determination, I would reverse and remand for a redetermination of the amount of the fee. Section 440.34(1), Florida Statutes, governs the determination of the amount of the fee in this case....

...The deputy commissioner found on the evidence presented to him that the present value of the benefits recovered by claimant's attorneys was $5,085,362. The fee calculated under the statutory formula is $763,554. Although the deputy commissioner analyzed each of the factors in Lee Engineering and section 440.34(1), the order contains no explanation showing why the statutory formula fee should be reduced so drastically....

...1st DCA 1989), we explained: In establishing the amount of the fee the deputy noted the number of hours expended by claimant's attorney, and determined the resulting fee in accordance with an hourly rate. The deputy's order does not adequately address the other criteria described in section 440.34(1), Florida Statutes....

...mula when based solely upon the number of hours expended. See e.g., Brevard County Mental Health Center v. Kelly, 420 So.2d 911 (Fla. 1st DCA 1982). In the context here presented, the deputy's order does not reflect a sufficient consideration of the section 440.34(1) attorney's fee criteria, nor does it delineate an adequate basis for exceeding the amount which would result from the statutory percentage formula....

...." This manipulation of the present value figures was plain error. If the previously found amount for "benefits secured" was not supported by the evidence, and thus was believed to be unreliable, the deputy commissioner should not have found it as a fact in the first place. Under section 440.34(1), it was his duty to determine the dollar value of the benefits secured, make a finding of fact thereon, and then apply the statutory formula to determine the amount of the statutory fee....

...enhance the fee. Finally, the deputy commissioner recognized that the fee was contingent, and that the multipliers suggested in Florida Patients Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), do not apply because the statutory fee formula in section 440.34(1) is applicable, citing What an Idea v....

...ad faith as a part of the over all program," citing Florida Erection Services, Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981). In Sam Rogers Enterprises v. Williams, 401 So.2d 1388, 1391 (Fla. 1st DCA 1981), this court rejected an argument that section 440.34(3)(b) (formerly 440.34(2)(b)) was primarily intended to be a penalty provision, and noted that section 440.34(3)(b) "does no more than reimburse the claimant for expenses incurred in the assertion of his right *594 to benefits," citing McDonald at 208. Section 440.34(3)(b) is therefore unlike the punitive provisions contained in sections 440.20(7)(9) and (16) which provide for penalties, interest and suspension or revocation of an operating license in cases where the employer or carrier either dela...

...techniques. A clear collateral consequence of a bad faith finding by a judge of compensation claims is that a carrier may not recoup (either directly or indirectly) the payment of the attorney's fee in the rate base, the premium, or any rate filing. Section 440.34(3)....

...For reasons pointed out in the motion for rehearing, I now conclude that this holding is erroneous. The employer in this case is a self-insurer who administered this claim through its authorized servicing agent. Section 440.02(3) defines "carrier" as including "a self-insurer." Section 440.34(3)(b) authorizes the award of an attorney's fee upon a finding that the carrier has acted in bad faith....

...The word "carrier" as used in this section necessarily includes an employer/self-insurer acting through its authorized servicing agent. When a fee is awarded for bad faith, the payment thereof "may not be recouped, directly or indirectly, by any carrier in the rate base, the premium, or any rate filing." § 440.34(3)(c), Fla....

...the cited decisions on page 6 of the majority opinion, thus requiring a determination of the employer/carrier's bad faith on remand. The holding in the majority opinion, as the motion for rehearing so aptly points out, is based on a construction of section 440.34 that the self-insured employer should not be treated as a carrier under this section, and thus would excuse all self-insured employers and their servicing agents from liability for bad faith attorney's fees....

...d encouraging the usual binding effect of stipulations. The deputy erred in rejecting the stipulation in this case. Under the peculiar circumstances here involved, we find no reason to disturb the deputy's denial of attorney's fees to claimant under § 440.34(2)(b), Florida Statutes (1979), on grounds of the employer's bad faith....

...The City of Tampa, employer in this workers' compensation case, appeals three orders of the deputy commissioner. The first, entered on September 3, 1981, awarded temporary total disability (TTD) and wage loss benefits; the second, entered on July 29, 1982, found that Fein was entitled to attorney's fees pursuant to Section 440.34(3)(b), Florida Statutes (1981); the third, entered on December 1, 1982, set the amount of attorney's fees at $10,500....

...you know —, you have a right to fight claims if you want to and certainly you fought this claim all the way down to the client [sic]. But when you fight it in the face of all odds being against you, then I think you're going to have to pay a fee under 440.34(3)(b)." The record before the deputy commissioner disclosed the depositions of both Dr....

...erent question than whether the City "arguably" acted in bad faith. On this record, I cannot say that the City's conduct, even arguably, amounted to "fraud, malice, oppression, or willful, wanton or reckless disregard of the rights of the claimant." Section 440.34(2)(b), Florida Statutes (1979)....

...They argue that there is no statutory basis for such attorney's fee and that bad faith was neither litigated nor found. We conclude there is statutory basis for the services of claimant's attorney not only for adjudicating compensability but also for his services in securing the permanent total disability benefits. Section 440.34(3)(c), *517 Florida Statutes (1981) provided that a claimant shall be entitled to recover a reasonable attorney's fee from a carrier or employer [i]n a proceeding where a carrier or employer denies that an injury occurred for which com...

...1st DCA 1982) (Appellate court will not reverse on a point not presented in the tribunal of first resort). This decision does not preclude the carrier from administratively asserting this off-set if appropriate under the circumstances. Claimant's motion for appellate attorney's fees pursuant to section 440.34(5) is granted, and we remand to the deputy commissioner for determination of the appropriate amount....

...Supreme Court of Florida. October 16, 1980. B. Robert Ohle, St. Petersburg, for appellant. Jim Smith, Atty. Gen., and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee. *640 McDONALD, Justice. John N. Samaha, an attorney, assails the constitutionality of section 440.34(5)(a), Florida Statutes (1977)....

...County of Sarasota, 177 So.2d 665 (Fla. 1965), and Husband v. Cassel, 130 So.2d 69 (Fla. 1961). Utilizing the guidelines set forth in those cases, we can discern no merit to the appellant's argument on this issue either. This Court upholds the constitutionality of section 440.34(5)(a), Florida Statutes (1977), and affirms the conviction. It is so ordered. SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., concur. NOTES [1] Former § 440.34(5), Fla....

...for a lawyer or for himself or herself in respect of any claim or award for compensation, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Similar provisions are now contained in § 440.34(4), Fla. Stat. (1979). [2] § 440.34, Fla....

...rder which finds that the employer/carrier's handling of the claim constituted bad faith and awards attorney's fees. We affirm that portion of the order which finds bad faith, but reverse and remand on the issue of the amount of the attorney's fees. Section 440.34, Florida Statutes (1979), contains a sliding fee schedule....

...Galen of Eraclides, Johns, Hall, Gelman, Johannessen & Kempner, L.L.P., Sarasota, for Appellees. PER CURIAM. At issue in this workers' compensation case is whether claimant's attorney is entitled to be paid an attorney fee and costs by the employer/servicing agent (e/sa) under section 440.34(3)(b), Florida Statutes (2006)....

...de, not when forms indicating the acceptance of PTD were completed. See Amerimark, Inc. v. Hutchinson, 882 So.2d 1114, 1115 (Fla. 1st DCA 2004). *710 The JCC then addressed whether claimant's attorney met the burden of establishing entitlement under section 440.34(3), Florida Statutes (2006), which provides that a fee is due when the following circumstances exist: the "carrier files a response to petition denying benefits;" there is a "successful prosecution of the petition;" and a period of 30 days elapses from "the date the carrier ....

...Palm Beach County School District, 901 So.2d 887 (Fla. 1st DCA 2005), to find the claim was never controverted and claimant's attorney did not successfully prosecute the petition because "more than minimal effort to procure benefits for the claimant" was necessary. The JCC's reliance is misplaced. Section 440.34, Florida Statutes, has been amended since 2000 when Zabik's accident occurred. The 2003 amendments removed the discretionary factors in section 440.34(1), Florida Statutes (2000)....

...The parties agreed payment was made on the 31st day following the e/sa's receipt of the petition. Because more than 30 days elapsed from the date the e/sa received the petition and claimant successfully achieved acceptance and payment of the claim, all of the statutory requirements of section 440.34(3), Florida Statutes (2006), have been met....

...The claim did not give the employer adequate notice and the question directed to Dr. Miller did not overcome the deficiency. The order also finds that claimant's attorney is entitled to a fee and that the parties have stipulated to the application of the numerical schedule in Section 440.34, Fla....

...o construed, the strict use of the formula is comparable to the use of minimum fee schedules condemned as contingency fees in Heavy Constructors, Inc. v. Dericho, 259 So.2d 489 (Fla. 1972) and Galarneau v. Caroly of Miami, 299 So.2d 579 (Fla. 1974). Section 440.34(1) Fla....

...After hearing the evidence with respect to this claim, the Deputy Commissioner awarded the claimant twenty percent of the amount of the previous award then delinquent, pursuant to Section 440.20 (6), Florida Statutes, F.S.A., but refused to grant an attorney's fee under Section 440.34, Florida Statutes, F.S.A., for services rendered by claimant's attorney at the hearing above mentioned....

...added to such unpaid compensation an amount equal to twenty per cent thereof, which shall be paid at the same time as, but in addition to such compensation, unless review of the compensation order making such award is had as provided in § 440.27." "440.34 Attorney's fees; costs; penalty for violations *818 "(1) 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 no...

...eys fee, * * *." (Emphasis added.) Petitioner contends that it was error to deny him a reasonable attorney's fee because the award of the additional twenty percent under Section 440.20 was an award of additional compensation and therefore covered by Section 440.34. Respondent contends just as vigorously that the Deputy was correct in holding this additional award to be a penalty, as to which no provision is made in Section 440.34 for payment of fees to counsel....

...counsel at this stage, or to call again upon counsel already retained, to enforce his rights. He should not be impeded by the thought of counsel fees which may render the enterprise an empty gesture so far as he is concerned. The salutary purpose of Section 440.34(1), which is one of the few provisions of its kind in the United States, should not be nullified by restrictive interpretation....

...Florida Game & Fresh Water Fish Commission v. Driggers, Fla., 65 So.2d 723; Di Giorgio Fruit Corp. v. Pittman, Fla., 49 So.2d 600. We hold that the twenty percent additional amount here recovered under Section 440.20(6) was "compensation" within the meaning of Section 440.34(1)....

...ted or offer for attendance made. As to the E/C's last contention, because the request for treatment at the Head Injury Rehabilitation Center was a "medical only" claim, we must affirm the deputy's award of attorney's fees on its authorization. See, Section 440.34(3)(a), Florida Statutes (1981)....

...er agreement between the claimant and his attorney. Standing to appeal is based on the fact that the appellant carrier is required to control the method of payment. The appeal presents issues of first impression and requires judicial construction of § 440.34, Fla....

...carrier to retain and pay periodically to claimant's attorney a percentage of "all monies paid to the claimant." Appellants contend that the order imposing that burden on them should be reversed on several grounds: (1) it is premature and void under § 440.34(1), Fla....

...age fee is based; and (4) the statute does not provide or permit the order's provision for continuing administrative duties by the appellant carrier in remitting fees to the attorney. We reverse on grounds 2 and 4, and on point 1 our construction of § 440.34(1) rejects both appellee's contention that it is inapplicable and appellants' contention that it forbids approval *338 of any fee agreement before successful prosecution of a claim. We find no necessity for treatment of the policy argument on point 3, and remand for further proceedings in compliance with our construction of the statute. Section 440.34(2), Fla....

...'s fees" except in three specific instances not affecting the issue in this case. Another subsection also provides a misdemeanor penalty for any person who "receives any fees ... unless such consideration ... is approved by the deputy commissioner." § 440.34(4). The 1979 legislative act repealed the former provision of § 440.34(2) that "in awarding a reasonable attorney's fee, the judge ... shall consider only that portion of the award to the claimant that the attorney is responsible for securing. " It also repealed the specific requirement for "the successful prosecution of the claim" by an attorney claiming a fee. Section 440.34(1) now states: No fee ......

...(e) The time limitation imposed by the claimant or the circumstances. (f) The nature and length of the professional relationship with the claimant. (g) The experience, reputation, and ability of the lawyer or lawyers performing services. (h) The contingency or certainty of a fee. (emphasis supplied) Prior to 1977, § 440.34(1), Fla....

...And as to the benefits considered, the percentage fee was to be predicated only on those benefits obtained through the efforts of the claimant's attorney. C.E. Domes Construction Co. v. Hilaire, IRC Order 2-3096 (Jan. 27, 1977). In 1977 the legislature amended § 440.34(1) so as to codify the various Lee Engineering criteria, followed by amendment in 1978 to visit 25% of the fee upon claimant, and amendment in 1979 as above set forth. The claimant and attorney are now clearly free to enter into a fee agreement at *339 any time; § 440.34(1), Fla. Stat. (1979), merely requires approval of the agreement upon payment. Unlike the prior statute, § 440.34(1), Fla....

...(1979) relates to "any attorney's fee approved" and omits the former restriction to fees awarded upon the "successful prosecution of the claim." Such a substantive omission is presumed intended to alter the statutory meaning. See Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla. 1977). While § 440.34(2), Fla....

...es and the Lee Engineering [Lee Engineering & Construction v. Fellows, 209 So.2d 454 (Fla. 1968)] factors, in my mind that pertains to a contingent fee basis rather than a contractual fee basis and would apply only where the exceptions under (2) ... 440.34(2) are applicable [to require a fee payable by carrier]." That is also the position argued by appellee in defense of the order....

...in excess of $10,000.00." Even under the former law, an interim fee could be awarded before all the "benefits secured" were ascertainable. Perez v. Carillon Hotel, 272 So.2d 488 (Fla. 1972); Tampa Aluminum Products Co. v. Watts, 132 So.2d 414 (Fla. 1960). However, consideration of the various § 440.34(1), Fla....

...We also note the apparent impropriety of the agreement's measurement of the fee by a share of "any and all compensation benefits" paid, rather than those in connection with which the attorney's services had been or would be rendered. The language from the former statute remaining in § 440.34(1) with respect to the presumptive scale for percentage fees, based on the "amount of the benefits secured, " is now preceded by the words "Except as provided by this subsection, ..." The exceptions are the prescribed factors designated (a)...

...of that duty by the deputy. Neither is the amount of the agreed fee substantiated by the Code of Professional Responsibility for attorneys in Florida EC2-19, cited by appellee, even if we assume its applicability. But implicit in our application of § 440.34(1), supra, is a rejection of appellee's argument that the revision was intended to require resort to the Code to determine a reasonable claimant's contract attorney fee, while retaining the statutory framework solely for fees paid by carriers....

...Small Claims Court of City and County of San Francisco, 76 Cal. App.2d 376, 173 P.2d 38 (1946); Cline v. Warrenberg, 109 Colo. 497, 126 P.2d 1030 (1942). However inconvenient the results may be, we are unable to read into the provision for a lien "upon compensation payable to the claimant," § 440.34(3), Fla....

...a retainer agreement, obligating claimant to pay an attorney's fee based upon a percentage amount of certain compensation benefits paid claimant, is not supported by evidence showing the fee reasonable. I agree also with the majority's opinion that Section 440.34(1), Florida Statutes (1979), does not require, as did its predecessor, that a fee award be conditioned upon the claim's successful prosecution....

...1968), we said: "[T]he nature of the Workmen's Compensation Law is such that the contingent percentage basis is not appropriate." [7] Fla. Bar Code Prof. Resp., D.R. 2-106(B)(4). [8] Attorney's fees awarded in workmen's compensation cases are, of course, required to be "reasonable". § 440.34(1), Fla....

...[9] This is not the first case in which we have remanded a case to the Commission on the ground of an excessive fee award. See R.H. Coody & Assoc., Inc. v. Shelton, 352 So.2d 852, No. 50,806 (Fla., filed Sept. 29, 1977). The Legislature's recent amendment of § 440.34, Fla....

...crease of a fee for the attorneys for the claimant when a Workmen's Compensation matter is heard on appeal. They advance the point that the statute does not make the appellate fee contingent on success at the appellate level. The statute involved is Section 440.34 (1), Florida Statutes, F.S.A., which reads as follows: "(1) 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 t...

...In his brief, appellee's attorney agrees that the fee is in excess of the approximately $15,000 statutory fee and states that he would not be adverse to a reduction if warranted by the facts and the law. In his order the deputy commissioner states that he has taken into consideration all the factors set forth in § 440.34, Fla....

...r. Co. v. Fellows, 209 So.2d 454 (Fla. 1968). We reduce the fee award to $25,000. The fee payable to claimant's counsel in this case is properly assessed at an amount greater than the $8,250 indicated by the percentage-of-benefits formula enacted in Section 440.34, Florida Statutes (1979)....

BENTON, J. Constrained by the statutory formula set forth in section 440.34(1), Florida Statutes (2009), the judge of compensation claims awarded claimant’s counsel an attorney’s fee of only $164.54 for 107.2 hours of legal work reasonably necessary to secure the claimant’s workers’ compensation benefits....

...We do not disagree with the learned judge of compensation claims that the statute required this result, and are ourselves bound by precedent to uphold the award, however inadequate it may be as a practical matter. The judge of compensation claims, as an executive branch adjudicator, was without authority to declare section 440.34 unconstitutional....

...2d DCA 1996) (holding that appellees should have raised their due process claims on direct appeal of the administrative order rather than filing a subsequent action in circuit court). In reaching our decision today, we have therefore considered claimant’s arguments that section 440.34 should be deemed in violation of several constitutional provisions....

...1st DCA 2006), disapproved on other grounds by Murray, 994 So.2d at 1062 ; Wood v. Fla. Rock Indus. & Crawford & Co., 929 So.2d 542, 545 (Fla. 1st DCA 2006), disapproved on other grounds by Murray, 994 So.2d at 1062 . In Kauffman , we recognized that section 440.34 was amended in 2009 in response to the supreme court’s decision in Murray and noted that although Murray disapproved of this court’s decisions in Lundy, Campbell, and Wood , the supreme court did not address any constitutional issu...

...hysician. "(4) I find that the employer/carrier has resisted this claim and I therefore find that it was necesary for the claimant to employ counsel to represent his interests in this cause and that the claimant's attorney is entitled to a fee under Section 440.34....

...When the appellant/claimant prevailed on the merits of his workers' compensation claim, the deputy's order required that all attorney's fees payable to appellant's attorney, Mr. Keyfetz, be placed in a trust account and that Mr. Keyfetz seek the deputy's approval as required by § 440.34(1), Florida Statutes (1979), [1] before reimbursement of his fees. Arguing that § 440.34(1) is constitutionally invalid, appellant moved that this portion of the order be vacated. Although the deputy refused to decide the constitutional issues, he did enter brief "findings of fact." On this record, appellant now seeks review before this Court asking generally that we find § 440.34(1) violative of equal protection, due process or the "contract clause." Relying on the arguments and authority presented to us, [2] we have not been persuaded that § 440.34's requirement of obtaining deputy approval before disbursement of a claimant's attorney's fees is unconstitutional....

...ional time required in connection with seeking approval and may provide useful information to the employer-carrier in defending against the claim and making decisions in connection with their position as to any claim... . Appellant first argues that § 440.34(1) unconstitutionally violates equal protection in that it discriminates against claimants as a class....

...generally." Id. at 640. As additional support for its decision, the court in Samaha cited Yeiser v. Dysart, 267 U.S. 540, 45 S.Ct. 399, 69 L.Ed. 775 (1925), involving a workers' compensation statute which sought to regulate attorney's fees much like § 440.34(1)....

...sation the State may attach such contentions on the license to practice law as it deems necessary for the public good. The Yeiser Court's rejection of the "liberty to contract" argument applies with equal weight to appellant's second contention that § 440.34(1) violates what appellant loosely describes as his constitutional "right to contract." [3] Merely because legislation places some restriction on the right to freely contract will not invalidate the legislation if the restriction was intended to protect the public's health, safety or welfare....

...olly inadequate to achieve the legitimate state interest recognized in Samaha. For the foregoing reasons, we AFFIRM the deputy's denial of the motion to vacate. ERVIN, J., concurs. BOOTH, J., dissents. BOOTH, Judge, dissenting: I am of the view that Section 440.34(1), Florida Statutes (1979), as interpreted by the majority, restrains and impairs the rights of claimants to contract and to engage the services of an attorney of their choice....

...s intended by the legislature. Ohio Casualty Group v. Parrish, 350 So.2d 466 (Fla. 1977). Under the present act, a claimant's right to recover attorney's fees from the employer/carrier *1047 has been narrowly proscribed to certain limited instances. Section 440.34(3), Florida Statutes....

...en to recover in tort against employers for on-the-job injuries. So long as the statutory remedy afforded is substantially equivalent to the common law remedy relinquished, certain constitutional objections can be overcome. The restraints imposed by Section 440.34(1) result in deprivation of fundamental rights of injured workers and impose a limitation not applicable to parties injured in non-job-related accidents....

...not contend the fee contracted for was excessive or improper in any way. No claim is being made by claimant or his counsel that the agreed upon fee be paid by the employer/carrier or be a lien against compensation benefits. [1] The interpretation of Section 440.34(1) which precludes freedom to contract and restricts the ability to obtain needed services seriously impairs the right of claimants to obtain compensation benefits due to them in what has become a complex area of the law, thereby penalizing, rather than protecting, the injured worker. I respectfully dissent. NOTES [1] Section 440.34(1) provides: No fee, gratuity, or other consideration shall be paid for services rendered for a claimant in connection with any proceedings arising under this chapter, unless approved as reasonable by the deputy commissioner, commission, or court having jurisdiction over such proceedings....

...(g) The experience, reputation, and ability of the lawyer or lawyers performing services. (h) The contingency or certainty of a fee. [2] Neither appellant's initial brief nor his reply brief included any cited case authority in support of or in opposition to his position. [3] Assuming that appellant was arguing that § 440.34 (1979) operated to impair a contract obligation as prohibited by Art. I, § 10 of the federal and Florida constitutions, we note that § 440.34(1) (1979) was in effect prior to the date of the accident in this case. Since the contract for attorney representation on the claim was entered into after the effective date of the statute, it cannot be said that § 440.34 impaired any existing contract obligation....

...constituted the "deni[al] by affirmative action, other than delay, [of] a covered claim," within the meaning of the exception provided by Sec. 631.70. Furthermore, the trial court was authorized to assess fees in the rule nisi proceeding pursuant to Section 440.34(1), Fla....

...ke the allowance of interest on the compensation fee awards from the dates of their entry to the date of the final judgment, March 26, 1980. [2] Otherwise, *422 the judgment under review is affirmed. Affirmed in part, reversed in part. [3] NOTES [1] § 440.34, Fla....

...In the October 11, 2001, order, the JCC found that Claimant has reached statutory MMI, that her psychiatric injury is permanent, and that she is entitled to PTD benefits. Her condition was found to satisfy the section 12.04 impairment listings. Claimant was awarded attorney's fees under section 440.34(c), Florida Statutes (1995)....

...t $150 per hour. We affirm in part, reverse in part, and remand for further proceedings. Initially, we affirm the JCC's finding that the E/C did not act in bad faith in not earlier accepting claimant as PTD. A finding of bad faith is warranted under Section 440.34(3)(b), Florida Statutes (1987), if the claimant shows that the carrier passively delayed paying benefits without making any effort to place benefits in the hands of the claimant....

...Without detailing the testimony, which referenced the time log claimant's attorney submitted into evidence, suffice it to say that we cannot discern why the JCC accepted some entries and not others as having contributed to "the time reasonably spent in obtaining" benefits under section 440.34(3)(b)....

...Although the amount of benefits obtained was found to be $544.88, the time expended was 39.1 hours, so the deputy concluded that "the primary factor to be considered is the time involved." He then found that a fee is justified in excess of the fee schedule contained in section 440.34, Florida Statutes (1983), and awarded $1,500....

...ned. Claimant also argues that the amount of the fee should be determined in accordance with the factors discussed in Florida Patients' Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), which focuses on the time expended as the beginning point. Section 440.34 governs the award of a reasonable fee to be received by claimant's attorney, whether paid by the carrier or by the claimant. Subsection 440.34(1) provides that any attorney's fee approved by the deputy commissioner shall be equal to a *875 certain percentage "of the amount of the benefits secured," but further states: However, the deputy commissioner shall consider the follow...

...(e) The time limitation imposed by the claimant or the circumstances. (f) The nature and length of the professional relationship with the claimant. (g) The experience, reputation, and ability of the lawyer or lawyers performing services. (h) The contingency or certainty of a fee. Subsections 440.34(1) and (6) prohibit an attorney from receiving a fee in any amount not approved by the deputy commissioner or the court....

...at the time and labor required was the primary basis for the fee. The record contains no evidentiary support for finding that a rate of $38 per hour is a reasonable amount of compensation for the claimant's attorney's services in this case. Although section 440.34 sets a percentage of the amount of benefits obtained for the claimant as the starting point in the analysis of a reasonable fee in every case, we agree with the deputy that after considering all the statutory factors, the time and labor required is the major factor that should be applied under the circumstances shown in this case. We do so for the following reasons. In recognition of the dominant self-executing theme of the Workers' Compensation Act, section 440.34 places primary responsibility upon the claimant for payment of his own attorney's fees, and limits the carrier's obligation to pay claimant's attorney's fees to three situations. The fee was awarded in this case because the carrier "has acted in bad faith with regard to handling an injured worker's claim and the injured worker has suffered economic loss" as a result. § 440.34(3)(b), Fla....

...reasonable value of legal services required to vindicate the claimant's rights under the act but also to punish the carrier for its bad faith denial of benefits which defeat the self-executing purpose of the act is made manifest by the provision in section 440.34(3) requiring that the payment of bad faith fees "may not be recouped, directly or indirectly, by any *876 carrier in the rate base, the premium, or any rate filing." The other two provisions in subsections 440.34(3)(a) and (c) shift the responsibility for claimant's attorneys fees to the carrier or employer for the unsuccessful denial of medical benefits or compensability of the injury, and in those instances the full amount of such benefits paid to the claimant are usually included in the calculation of the percentage schedule set forth in section 440.34(1)....

...as the dominant consideration in such bad faith cases will tend to deter attorneys from accepting employment and impede the claimant's ability to obtain legal representation and assistance in obtaining such benefits. Application of the provisions of section 440.34(1) in a manner that promotes such a chilling effect on the claimant's right to obtain legal services in the face of bad faith denial of benefits is inconsistent with the benevolent purposes of the Worker's Compensation Act....

...BARFIELD, J., concurs. NIMMONS, J., dissents. NOTES [1] Bad faith is defined as "conduct by the carrier in the handling of a claim which amounts to fraud; malice; oppression; or willful, wanton, or reckless disregard of the rights of the claimant." § 440.34(3)(b), Fla....

...McKnight, Tampa, for Appellant. Elizabeth P. Lynch and David K. Beach of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellees. PER CURIAM. Dean Stolzer, claimant below, appeals a final order of the Judge of Compensation Claims determining that section 440.34(3), Florida Statutes (2002) [1] retroactively applied to the petition for permanent total disability benefits filed as a result of his compensable motor vehicle accident on *438 April 11, 2000, and therefore an award of attorney's fees was precluded....

...PADOVANO, J. This is an appeal from a final order awarding attorney's fees in a workers' compensation case. The claimant contends that the judge of compensation claims erred in departing downward from the presumptive fee computed by the formula in section 440.34(1), Florida Statutes....

...Alderman, 755 So.2d 604 (Fla.2000). After the decision by the supreme court, the claimant petitioned the judge of compensation claims for an award of attorney's fees. He requested a fee based on the amount of the benefits obtained. The petition was filed pursuant to section 440.34(1), *1099 Florida Statutes (1989), [1] which states in material part: ......

...ure benefits, and that the statutory fee for his services would be $65,002.87. However, the judge departed downward from the statutory formula and awarded the claimant $23,010.00 in attorney's fees. The judge assigned two of the statutory factors in section 440.34(1) as the reason for the downward departure....

...justify a departure, the abuse of discretion standard applies. We conclude that the judge of compensation claims placed undue reliance on the customary hourly rate in departing from the statutory formula. The presumptive attorney's fee authorized by section 440.34(1) is a contingent fee based on the value of the benefits obtained....

...ncrease, it is possible that the award in a given case might be higher than the amount that would be obtained by applying an hourly rate. That is the essential feature of a contingent fee arrangement, and it is inherent in the design of the statute. Section 440.34(1), Florida Statutes reflects a legislative intent to standardize attorney's fee awards in workers' compensation cases....

...r did not play a significant role in the judge's analysis. In any event, we do not think that the attorney-client relationship was so brief or insignificant that it would warrant a reduction in the presumptive attorney's fee. Of the eight factors in section 440.34(1), the judge found three to be positive in the sense that they would support a fee at or above the statutory amount....

...She found that three other factors had no impact on the departure and characterized them as neutral. These were (a) the novelty and difficulty of the issues, (b) the likelihood the case would preclude other legal employment, and (e) the time limitations imposed by the claimant. Although the task of weighing the factors in section 440.34(1) is not a simple numerical process, we conclude that the two factors assigned as the reason for the departure were not sufficient to outweigh the three neutral factors that could be used to justify the presumptive fee and the three positive factors that could be used to support an even greater fee....

...efits for his client. Under the circumstances, it was unreasonable to depart from the contingency arrangement in the statute and limit the fee to an hourly rate. For these reasons, we conclude that the order departing from the presumptive fee set by section 440.34(1), Florida Statutes was an abuse of discretion....

...of $65,002.87, the presumptive amount according to the statute. Reversed. BROWNING and LEWIS, JJ., concur. NOTES [1] The current version of the statute is substantially the same as the 1989 version, except that the percentages have been reduced. See § 440.34(1), Fla....

...ad faith). Appellants next complain that the evidence fails to support an award of an attorney's fee in the amount of $58,000, because that sum is based upon an erroneous assessment of benefits obtained, as well as other relevant factors required by Section 440.34, Florida Statutes....

...It also contends that because there is testimony that claimant should be able to achieve independent living status within two to five years, the evidence does not support a finding that claimant should be in need of attendant care for the remainder of his life. We cannot accept the argument that section 440.34(1) requires a fee to be based on only accrued benefits actually awarded....

...hed by the National Office of Vital Statistics of the United States Department of Health and Human Services." Notwithstanding the fact that the claimant achieved no permanency rating, we do not consider that the "benefits secured" *1383 provision of section 440.34(1) contemplates in every circumstance a determination of accrued permanent benefits when a deputy is asked to decide the value of all benefits secured....

...In fact, if the statutory fee formula had been used exclusively, it would have netted claimant's attorney a fee of $71,550. Instead, the deputy took into consideration the criteria delineated in Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla. 1968), codified in section 440.34, and, in calculating the fee, considered not only the value of all reasonably predictable benefits secured to claimant, but also the time and labor involved, the novelty and difficulty of the issues, the nature and length of the relati...

...of Panama City, Inc., 589 So.2d 917, 918 (Fla. 3d DCA 1991) (applying Rowe where statute, section 57.105, authorizes fee but does not give guidelines for setting the fee) with Mirlisena v. Chemlawn Corp., 567 So.2d 986, 987 (Fla. 1st DCA 1990) (declining to apply Rowe where statute, section 440.34(1), enumerates guidelines for setting the fee)....

...Russell Corp. v. Brooks, 698 So.2d 1334 (Fla. 1st DCA 1997). The E/C did not deny or commence payments within 14 days of receiving claimant's April 4, 1995, petition for benefits, but instead did not respond, which operated as a denial. Therefore, pursuant to section 440.34(3)(b), Florida Statutes (1995), which authorizes fees to a claimant who successfully prosecutes a claim following notice of denial, Montes is entitled to fees for securing these benefits. The E/C relies upon Indian River County School Board v. Baker, 695 So.2d 898 (Fla. 1st DCA), review denied, 703 So.2d 475 (Fla.1997), which is inapposite. This case involved the former 21-day rule provided by section 440.34(3)(b), Florida Statutes (1991), which stated that a claimant was entitled to fees in cases wherein the E/C failed or refused to pay a claim "on or before the 21st day after receiving notice of the claim." The JCC in that case acknowled...

...ndance at the fee hearing. Based on the hours expended, at an asserted reasonable hourly rate of $150, Mr. Sicking represented that his fee would amount to $27,750. In the alternative, a fee was sought based on the statutory guideline fee formula in section 440.34(1), Florida Statutes (1985), [1] by determining the monetary value of all benefits achieved by Mr....

...and no indication as to how many of the 185 hours were devoted to the benefits that he ultimately obtained for his client. Based on the foregoing, the chief commissioner applied the total amount of benefits obtained to the "25/20/15" fee formula in section 440.34(1) to arrive at an attorney's fee of $2,291.40....

...Neither is claimant due a fee based on the fact that the E/C paid TTD benefits beyond the period to which she was entitled to those benefits, and thereafter began voluntarily paying PTD benefits, on the theory that the benefits were untimely paid. Under section 440.34(1), Florida Statutes (1973), three conditions are set forth upon which the employer may be compelled to pay attorney's fees, one most significantly being when the employer shall decline to pay a claim on or before the twenty-first day after notice thereof....

...Johnson Properties, Inc./Holiday Inn, 481 So.2d 88 (Fla. 1st DCA 1986), wherein the claimant prevailed on the issue of compensability. Thereafter, the deputy commissioner awarded benefits and ordered the E/C to pay a reasonable attorney's fee pursuant to section 440.34(3)(c), Florida Statutes....

...litation counselor, he found it reasonably predictable that the E/C would be responsible for wage-loss benefits of $253 weekly through the end of Sul's entitlement thereto. Based on total benefits acquired of $140,679, and using the formula found in section 440.34(1), the deputy computed a fee of $21,851....

...e carrier. We agree with the chief commissioner that the stipulation was of no force and effect due to its not having been approved by a deputy commissioner. Apart from the fact that the stipulation itself required approval by a deputy commissioner, section 440.34(1), Florida Statutes (1985), also requires such approval....

...ANDED for further proceedings consistent with this opinion. BOOTH and BARFIELD, JJ., concur. NOTES [1] The parties and the chief commissioner properly considered this percentage fee schedule although the date of injury preceded the 1977 amendment to section 440.34(1)....

affirmed. However, neither section 440.39(3)(a) or section 440.34(1) authorize attorney's *27 fees for work done

Fellows, 209 So.2d 454 (Fla. 1968). Although Section 440.34, Florida Statutes (1977) sets forth a percentage

awards. The first entitlement was pursuant to section 440.34(3)(b), Florida Statutes, which requires a "reasonable"

well as to all other factors enumerated in Section 440.34, Florida Statutes, and that this determination

amounts and in the same manner as provided for in Section 440.34 of the Florida Statutes, subject to the approval

Subsequently, Soriano sought attorney's fees under section 440.34(3)(b), Florida Statutes (1995),[1] which the

Stat. § 627.0127 (1967), F.S.A. [8] Fla. Stat. § 440.34 (1967), F.S.A. [9] Fla. Stat. §§ 734.01, 737

findings of bad faith at a separate hearing. See § 440.34, Fla. Stat. (1987). But the order does not set

abate nuisances); § 61.16 (divorce proceedings); § 440.34 (workers' compensation proceedings); § 627.428

awarding claimant attorney's fees pursuant to Section 440.34(2), Florida Statutes (1979). The deputy commissioner

issue. See § 440.20, Fla. Stat. (Supp. 1988); § 440.34, Fla. Stat. (1987). I see little justice in punishing

claimant having prevailed thereon on this appeal. Section 440.34(3)(c), Fla. Stat. (1987); Manley v. Bennett's

benefits to $1500 was unconstitutional. Id. (citing § 440.34(7), Fla. Stat. (2003)). To support that claim

awarding bad faith attorney's fees pursuant to Section 440.34(3)(b), Florida Statutes (1981). We affirm in

1983), permits an award under the provision of § 440.34, Florida Statutes, for a fee when employer/carrier

fees or costs to be borne by the appellants. See § 440.34(2)(a)-(c), Fla. Stat. The Deputy's Order is reversed

attorney's fees could not be established under section 440.34(3)(c) since, they assert, the E/C never denied

917 So.2d 1024, 1029 (Fla. 1st DCA 2006). Section 440.34(3), Florida Statutes (2006), states, "If any

court cites as authority for attorney fees section 440.34(5), Florida Statutes (1980), although the date

The fee statute applicable to this case is section 440.34, Florida Statutes (1981). The judge of compensation

compensation order awarding attorney fees under section 440.34, Florida Statutes (1983), the employer and

DCA 1980). The award of attorney's fees under section 440.34(3)(c), Florida Statutes *927 (Supp. 1980),

court has interpreted the language contained in section 440.34(3)(b), Florida Statutes (1980), as not requiring

review of an attorney's fee awarded pursuant to § 440.34(1), Florida Statutes (1978). We find that no point

succeeded Nationwide as the carrier. Pursuant to section 440.34(3)(b), Florida Statutes (1985), the deputy

consider the statutory factors enumerated in Section 440.34(1), Florida Statutes (1977), and failed to

when deciding whether the factors listed in section 440.34(1), Florida Statutes (1994), were sufficient

awarding claimant attorney's fees pursuant to Section 440.34(2)(b), Florida Statutes (1979). We reverse

not been approved by the deputy commissioner. Section 440.34(6), Florida Statutes (1981). Therefore, it

not timely accepted within 21 days pursuant to § 440.34, Florida Statutes (1975). Appellant also contends

which she may be entitled under the statute. Section 440.34(3)(b), Florida Statutes (1981). The original

attorney's fees under the bad faith provision of Section 440.34(3)(b), Florida Statutes. In an order dated

1995. Id. The district court concluded that in section 440.34(1), Florida Statutes (1993),[1] the legislature

claimant's counsel, as awarded by the deputy. Section 440.34(3)(c) provides: "In a proceeding where a carrier

performing the legal service for the claimant. Section 440.34(1)(a), Florida Statutes (1981); Brevard County

have been awarded for bad faith pursuant to section 440.34(3)(b), Florida Statutes (1987), the fee award

made, and no fees were entitled under Fla. Stat. § 440.34(1), F.S.A. Employer contended *5 it commenced

circumstances, be assessed against the carrier under Section 440.34, F. S. 1941 (same F.S.A.)? We feel that a carrier

described as a "statutory guidelines" fee under section 440.34(1)(a)-(h), in the amount of $54,722.34. This

made since it complied with the provisions of Section 440.34(1), Florida Statutes (1977) by accepting the

Burnham was entitled to PTD benefits, pursuant to section 440.34(f), Florida Statutes (1994), see City of Pensacola

fees pursuant to the bad faith sanctions of Section 440.34(2)(b), Florida Statutes. The deputy commissioner

fee under the workers' compensation statute, section 440.34, Florida Statutes, but instead appears to pertain

Guettler & Sons, 450 So.2d 1267 (Fla. 1st DCA 1984); § 440.34(3), Fla. Stat. The general rule prevails notwithstanding

his recovery of additional medical benefits. Section 440.34(2)(a), Fla. Stat. (1979) provides that the

IRC. Now as to the facts sub judice. Fla. Stat. § 440.34(1) makes the employer liable for attorney's fees

attorney a fee under the "bad faith" provision of Section 440.34(3), Florida Statutes. Within the 30-day period

attorney a fee pursuant to the 21-day provision of section 440.34(3)(b), Florida Statutes (Supp. 1990). The E/C

not the prevailing party as contemplated by Section 440.34(3), Florida Statutes. The Department timely

prevailing parties, filed a motion pursuant to section 440.34(3), Florida Statutes (2004), seeking to tax

claim for medical benefits only, pursuant to section 440.34(3)(a), Florida Statutes (1983). The order awarded

symptoms. Turning to the award of attorney's fees, Section 440.34(3), Fla.Statutes, presents a threshold which

a result, claimant suffered an economic loss. § 440.34(3)(b), Fla. Stat. (1983). Appellants' points on

fees. In his analysis of the factors under section 440.34(1), Florida Statutes (1991), the JCC concluded

findings of the doctor as to the extent thereof. Section 440.34(1), Florida Statutes, F.S.A., authorizes the

Barosy suffered no economic loss as required by section 440.34(2)(b), Florida Statutes (1979). The deputy

of her attorney's fees was authorized under Section 440.34(2)(c), Florida Statutes (1979). This issue

See § 627.7372(3), Fla. Stat. (1979). [10] See § 440.34, Fla. Stat. (1979). [11] Lobry did not contend

proportion with the schedule established by Section 440.34, Florida Statutes (1979). Although the deputy

fees and costs for securing that benefit. See § 440.34, Florida Statutes (2006). REVERSED and REMANDED

stipulation, to pay a reasonable attorney's fee under Section 440.34(3)(c), Florida Statutes, which allows recovery

determining the appropriate attorney's fee, section 440.34, Fla. Stat. (1983) requires that in each case

assessed according to the schedule set out in Section 440.34(1), providing a fee which is a percentage of

limited to a percentage of the benefits secured. See § 440.34(1), Fla. Stat. (2003).[1] A JCC "shall not approve

payment in a claim for attorney's fees under Section 440.34, Florida Statutes (1975). In deciding that

2. Based upon the criteria outlined in Florida Statute 440.34(1), the parties agree that the Employer/Carrier

motion for an appellate attorney's fee is DENIED. § 440.34, Fla. Stat. (1979). SHIVERS and WIGGINTON, JJ

gross amount recovered in the case. Pursuant to section 440.34, Florida Statutes (1995), Kelly was required

force at the time of claimant's injury was section 440.34(3)(b), Florida Statutes (1989), allowing a

accordance with the guideline formula set forth in section 440.34(1), Florida Statutes (2005). The appellant's

18, 1980 and an attorney's fee pursuant to Section 440.34(2)(c), Florida Statutes (1979). Walt Disney

workers' compensation fee statute, particularly section 440.34(1), Florida Statutes (2003), the Legislature

this court’s review is de novo. Id. at 1091. Section 440.34(3), Florida Statutes (2007), provides that

factfinding proceeding before deciding the issue. Section 440.34(3)(b), Florida Statutes (1983), does not require

Campbell challenges the JCC's determination that section 440.34, Florida Statutes, as amended in 2003, precludes

deputy commissioner which awarded, pursuant to section 440.34(3)(a), Florida Statutes (1981), an attorney's

reconsideration of the award under § 440.34(1), Fla. Stat. (1978). The 1978 version of § 440.34(1), which applies to

fee was awardable at the hearing level under Section 440.34(2)(a)-(c), Florida Statutes (1979). Jones *443

unsuccessfully controverted. This was error. See Section 440.34(3)(b), Florida Statutes (1979) and (1980).

awards under workers' compensation act, because section 440.34 sets forth specific factors that must be considered

variables, the attorneys fee schedule under F.S. 440.34, and the Lee Engineering Case it is found that

the factors listed in the Florida Statute, Section 440.34(1)(a) through (h) and conclude that only minimal

(JCC's) award of bad faith attorney's fees under section 440.34(3)(b), Florida Statutes. Next, they maintain

JCC's award of attorney's fees pursuant to section 440.34(2), Florida Statutes (2000), which was based

the order denying appellant attorney's fees. Section 440.34(3)(c), Florida Statutes, provides for attorney's

basis for assessing attorney's fees pursuant to Section 440.34(2)(c), Florida Statutes (1979). Four Quarters

has not reached a determination as required by § 440.34(2), Florida Statutes (1979). The industrial injury

awarding a fee to the employer's attorney. Section 440.34, Fla. Stat. does not authorize an award of

(Fla. 1956) at p. 450. Appellee argues that Section 440.34(1), Florida Statutes (1973), authorizes the

21 days of notice of the claim, as required by § 440.34(1) Florida Statutes (1977). Second, the claimant

considered the various statutory factors of section 440.34, Florida Statutes (1997), there is no indication

considered all of the factors delineated in section 440.34(1)(a)-(h), Florida Statutes (1991), and found

impression that the statutory guideline fee of section 440.34(1), Florida Statutes (1989) is the appropriate

Claimant attorney's fees and costs pursuant to section 440.34(3)(b), Florida Statutes, based upon the filing

showing bad faith had been eliminated from Section 440.34, Florida Statutes (1989). The JCC was therefore

the order of the full Commission. *432 F.S. Section 440.34(1), F.S.A., provides in part: "(1) If the employer

claimant in the sum certain of only $10,590.35. Section 440.34(2), Fla. Stat. (1981), states: In awarding

erred in assessing attorney's fees pursuant to section 440.34(3)(b), Florida Statutes (1980). Despite the

until the entire fee is paid.[2] Citing to Section 440.34(4), Florida Statutes, which provides that "in

application of the statutory formula found in section 440.34(1), Florida Statutes (2001). Accordingly, applying

carrier. At that time the applicable statute, Section 440.34(1), Florida Statutes (1977), provided, in relevant

support a constitutional challenge on appeal to section 440.34(7), Florida Statutes (2003). Under that provision

claimant's counsel a reasonable attorney's fee. Section 440.34(2)(b), Florida Statutes (1979), provides for

fee pursuant to the bad faith provision of Section 440.34(3)(b), Florida Statutes (1981), if this court

application of the statutory fee formula set out in Section 440.34(1), Florida Statutes (1979), would result in

contend that the award could be permitted under § 440.34, Florida Statutes, only if such a finding was