Cases

Employer/carrier had accepted claimant as permanently and totally disabled. Claimant failed to attend a functional medical evaluation (FME) scheduled by the employer/carrier and accordingly, permanent total compensation was discontinued. On motion to compel motion for functional medical evaluation, the JCC determined that such motion should not be granted since Chapter 440 does not expressly provide for a functional medical examination or evaluation and thus the court could not compel the claimant’s attendance at the exam. Accordingly, the employer/carrier reinstated the claimant’s permanent total benefits. Back benefits amounted to approximately $5,000. The question in this case was whether the attorney’s fee awardable to the claimant’s attorney should be based on the $5,000 amount of back PT benefits or should future permanent total compensation be considered in this calculation.

 

Attorney’s fees in a workers’ compensation proceeding should be determined on the basis of total benefits secured as a result of the intervention of the claimant’s attorney. Section 440.15(1)(e)1, Florida Statutes, allows for the discontinuance of permanent total compensation where the employee willfully refuses or fails to appear without good cause for a scheduled vocational evaluation or testing. In this case, the claimant’s permanent total compensation was suspended only temporarily, lasting only until the claimant agreed to appear for the FME. The employer/carrier reinstated claimant’s permanent total compensation immediately after the Judge of Compensation Claims denied a motion to compel the claimant’s attendance at the FME. There was no competent substantial evidence in this case which suggested that the employer/carrier intended to permanently suspend claimant’s benefits. Accordingly, the only benefits counsel secured for the claimant in these proceedings related to the value of past permanent total compensation. It was error for the JCC in this instance to award attorney’s fee based on past and future permanent total compensation.