Court finds that claimant’s counsel was due a fee by the employer/carrier on an increase in the claimant’s average weekly wage.

The claimant requested adjustment of the average weekly wage as well as fee entitlement to claimant’s counsel. The Judge of Compensation Claims denied that claimant’s counsel was due a fee by the employer/carrier on an increase in the claimant’s average weekly wage. The judge found that “no actual or real benefit was secured.” The judge relied on Section 440.34 (2), Fla. Stat. (2017), which states that employer/carrier paid attorney’s fees must be based on “benefits secured by the attorney.” 

The First District Court of Appeals found that this was reversible error because, even though the claimant had received disability benefits from the date of his accident at the maximum compensation rate, the average weekly wage adjustment increased the 80% “threshold” for temporary partial disability entitlement. 

The Judge of Compensation Claims had also held that no fee entitlement was due because the increase in average weekly wage was smaller than what the claimant had requested. The First District Court of Appeals pointed out that the law does not require an exact match between the claim and the award. This portion of the judge’s order was reversed and remanded for further proceedings.

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