                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

RAFAEL CRUZ-RAMIREZ,                 NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D15-2666

AMERICAN AIRLINES and
SEDGWICK,

     Appellees.
___________________________/

Opinion filed October 4, 2016.

An appeal from an order of the Judge of Compensation Claims.
Stephen L. Rosen, Judge.

Dates of Accidents: July 13, 2009, and November 5, 2009.

Toni L. Villaverde of Toni L. Villaverde, PLLC, Coral Gables, for Appellant.

Robert A. Donahue and Richard B. Robbins of Rissman, Barrett, Hurt, Donahue &
McLain, Orlando, for Appellees.



PER CURIAM.

      In this workers’ compensation appeal, Claimant raises three issues, only one

has merit. The Judge of Compensation Claims (JCC) erred in awarding any portion

of the attorney’s fees paid by the Employer/Carrier (E/C) to claimant’s prior

attorney, Mr. Buechele.
      Claimant, a fleet service clerk for the Employer, sustained a back injury on

July 13, 2009, and a right shoulder injury on November 5, 2009, both of which were

accepted as compensable by the E/C.

      Claimant was first represented by Mr. Buechele who filed multiple petitions

for benefits (PFBs) for both dates of accident in 2010 and 2011. It was agreed,

however, by Mr. Buechele and the E/C’s attorney, that all of the benefits claimed

due were provided by the E/C within thirty days of the date the PFBs were filed.

       Ms. Villaverde filed a notice of appearance on February 1, 2012, listing the

July 2009 date of accident, and on February 10, 2012, filed a PFB seeking payment

of medical mileage on account of the November 2009 date of accident. According

to the E/C’s response, the mileage payment sought in that PFB was paid to Claimant

on February 1, 2012. Notwithstanding that assertion, the JCC found, and the E/C’s

payout ledger confirmed, that the February 1 check was voided and was not reissued

until June 18, 2012.

      On February 21, 2012, Mr. Buechele filed a notice of charging lien for

attorney’s fees and costs on account of the November 2009 accident. Based on a

stipulation of the parties, an order rendered February 27, 2012, accepted Mr.

Buechele’s withdrawal as counsel effective January 30, 2012, and Ms. Villaverde

was substituted as counsel for Claimant effective that same date.       The order




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specifically stated that Mr. Buechele “shall have no further obligations or

responsibilities on this matter after January 30, 2012, and a lien is noted.”

         In awarding an E/C-paid fee on account of the February 10, 2012, PFB, the

JCC found “that, because no order substituting counsel for the claimant had been

entered until February 27, 2012, both Attorney Villaverde and Attorney Buechele

were counsel of record for the claimant when the petition for medical mileage was

filed.” The JCC found further:

         Upon consideration of all the evidence and evaluation of the variables
         of F. S. 440.34(1)(3)(7) above, I find that a reasonable fee to claimant’s
         attorney in case number 10-005218 is in the amount of $1,500.00 based
         on a combined 10 hours of work between two attorneys of record for
         the claimant, at the same time, at $150 per hour, the statutory maximum
         for this date of accident.

The record supports neither finding. The February 27 order referenced by the JCC

relieved Mr. Buechele of all responsibility effective January 30, and there is no

record evidence to support that the ten hours of work represented “hours of work

between two attorneys of record.”∗

         Further, there is no record evidence that Mr. Buechele secured any benefit for

Claimant related to the February 10, 2012, PFB. As such, no fee entitlement

attached. See § 440.34(2), Fla. Stat. (2009) (“In awarding a claimant’s attorney’s

fee, the [JCC] shall consider only those benefits secured by the attorney.”). The JCC



∗
    We note that Mr. Buechele declined the opportunity to participate in this appeal.
                                          3
erred, and abused his discretion, in finding that Mr. Buechele was due any portion

of the $1,500 attorney’s fee, as there is no competent evidence that Mr. Buechele

was in any manner entitled to a fee for securing the payment of medical mileage.

      Accordingly, the order is AFFIRMED in part, REVERSED in part, and

REMANDED for entry of an order in accordance with this opinion.

WOLF and WINOKUR, JJ., CONCUR; WINSOR, J., CONCURS IN PART AND
DISSENTS IN PART WITH OPINION.




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WINSOR, J., CONCURRING IN PART/DISSENTING IN PART.

      The JCC directed the employer to pay attorney’s fees of $1,500 total, $750

each to two particular attorneys. The majority concludes that one of the two attorneys

was not entitled to any fee. That may well be, but that is not a basis to reverse. It is

the claimant who appealed here, and the employer has disclaimed any objection to

paying the fees as directed.

      The fact that one attorney deserved nothing does not necessarily mean the

other attorney was entitled to more than the $750 awarded. It was the appellant’s

burden to show that he was aggrieved by the JCC’s decision, and he has not met that

burden. The appellant does not suffer when his employer overpays one of his

attorneys, and he has not shown that his employer underpaid the other.

      I agree with the majority that the appellant’s additional claims lack merit. I

would affirm in all respects.




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