12 Fla. L. Weekly Supp. 1106a

Attorney’s fees — Insurance — Personal injury protection — Amount — Contingency risk multiplier — Where relevant market requires application of multiplier to obtain competent counsel, amount in controversy was small and results obtained excellent, agreement between insured and counsel was pure contingency fee arrangement, and chance of success at outset of case was less than 50%, multiplier of 2.0 is appropriate — Expert witness fees, costs and prejudgment interest awarded

STEPHEN TANGO, Plaintiff, v. ALLSTATE INSURANCE COMPANY, a corporation authorized and doing business in the State of Florida, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 02-SC-002760. August 1, 2005. J.R. Sloop, Judge. Counsel: Michael B. Brehne. Evelyn Cranford.

FINAL JUDGMENT AWARDING ATTORNEY’S FEES AND COSTS

This cause came on to be heard before the Court on July 5, 2005, on the Plaintiff’s Application for Attorney’s Fees and Costs. Having viewed the evidence presented, the Court file and having heard live testimony, the Court makes the following findings:

1. The court holds that46.8hours is reasonable under the circumstance presented for Michael B. Brehne, Esquire’s attorney time prosecuting this case and 55.4 hours for Lee M. Jacobson, Esquire’s attorney time prosecuting this case.

2. A reasonable hourly rate for Plaintiff’s attorney, Michael Brehne is 350.00 per hour and a reasonable hourly rate for Plaintiff’s attorney, Lee Jacobson is 300.00 per hour.

3. This court finds that this case is the type to which a multiplier should/should not be applied under the Rowe and Quanstrom guidelines. Specifically, the court finds that the relevant market requires the application of a multiplier in order for Plaintiff to find competent counsel. The Court finds that the litigation presented an undesirable claim, and that with the issues presented in this case, Plaintiff could not have obtained competent counsel on a standard contingency fee unless a multiplier was used. The factors set forth in Rowe have also been met. Specifically, the amount in controversy was small; the results obtained were excellent with Defendant having to pay all benefits available to Plaintiff. Finally, the contingency fee contract utilized by Plaintiff was a pure contingency fee agreement, which allowed for a contingency risk multiplier.

4. The Court finds that a multiplier of 2.0 is appropriate as Plaintiff’s chance of success at the outset of the case was (less than) 50%. This is because Defendant refused to pay for charges submitted for certain medical services received by Stephen Tango at the offices of Dr. Kevin Wynne, Dr. Pedro Oliveros and Dr. O’Neill based on the Defendant’s belief that the charges submitted were not reasonable, the services were not medically necessary and the services provided were not related to the accident in question.

Specifically, Defendant refused to pay for charges submitted for medical services received by Stephen Tango at the office of Dr. Wynne, Dr. Oliveros and Dr. O’Neill at Wynne Family Chiropractic, Orlando Pain & Medical Rehabilitation and Mid-Florida Imaging based on the Defendant’s belief that the physicians’ services were not medically necessary or unreasonable in price due to the doctor’s participation in a Beechstreet PPO organization.

In order to discontinue benefits, Defendant compelled Mr. Tango to an insurance medical examination with chiropractor Dr. Neil Weider who opined that no further chiropractic treatment was necessary for Mr. Tango. Further, Defendant had the medical records pertaining to the electrodiagnostic studies performed on Mr. Tango submitted to neurologist for a peer review who determined that the EMG/NCV performed on Mr. Tango were not medically necessary.

Lastly, Defendant compelled Mr. Tango to an orthopedic examination who determined no further orthopedic/neurological treatment would be medically necessary.

In addition, Defendant submitted bills for various dates of service to an elaborate computer bill review system that was designed to interpret the CPT codes used by the physician and compared them to the charges submitted by the provider to other providers within the same geographic region. According to the Beechstreet, Inc. & ADP Integrated Medical Solutions used by Defendant, the charges submitted by Plaintiff were excessive charges or lacked required documentation for consideration of reimbursement.

Additionally, the Defendant denied chiropractic services as a result of an IME report obtained from Dr. Neil Weider. Dr. Weider opined that further chiropractic treatment would not be reasonable, necessary or related to the accident of 3/21/2001. To make this determination, Dr. Weider notes the following points:

· “The patient mentions that he feels he has reached his plateau with his chiropractic care and does not felt hat he is improving any further or receiving any benefit from his current regime.”

· Patient told Dr. Weider, “he felt worse following a chiropractic adjustment by his chiropractor, Dr. Wynne.”

· Mr. Tango is currently working full-time as a self-employed tile and roof installer.

· Ambulation, posture are normal.

· Cervical compression test was negative.

· Sensory/motor exam of the upper and lower extremities was normal.

· ROM of the left and right shoulders were normal in all range of motions.

· The chiropractic treatment rendered, to date, was unnecessary.

· Patient needs treatment from a neurologist for intradural spinal injections and possible multiple diskectomy of the c-spine to reduce the herniations.

Additionally, Defendant denied certain bills it received from Orlando Pain and Medical Rehabilitation as a result of an IME report obtained from Dr. Narinder Aujla. Dr. Aujla opined further orthopaedic treatment would not be reasonable, necessary or related to the accident of 3/21/2001. To make this determination, Dr. Aujla notes the following points:

· “The patient has some discomfort in his back with no radiation of pain down his legs.”

· “He has no numbness or tingling.”

· “He is able to lay tile, walk, crawl and rive for about thirty minutes.”

· “He has no true pain down his arms.”

·“In the standing posture, he has a normal lumbar lordosis.”

·“Palpation reveals no spasm.” — lumbar.

· “Sitting down, he is holding the neck comfortably. Palpation reveals no spasm.”

· “The upper extremity shows no motor weakness in the individual muscle groups tested.”

· “There is no sensory loss in the upper extremity.”

· “The patient sustained mostly a soft tissue type injury related to the automobile accident as described.”

· “The patient can go back to his regular work without any restrictions.”

4. Additionally, Defendant denied bills it received from Orlando Pain and Medical Rehabilitation as a result of a peer report obtained from Dr. Shane Vervoot. Dr. Vervoot opined the NCV performed on Mr. Tango’s right arm would not be reasonable, necessary or related to the accident of 3/21/2001. To make this determination, Dr. Vervoot notes the following points:

· There was documentation of Dr. Ressler, D.C. where, “Dr. Ressler documented the above-mentioned complaints with decreased sensation essentially throughout the entirety of the “right” arm, even though his complaints were limited to the left arm.

· There were no documented complaints of right upper extremity pain, weakness or numbness by either, Dr. Ressler, D.C. or Dr. Pedro Oliveros, M.D.

· The left wrist pain had resolved.

· “There were, however, no consistent complaints of right upper extremity pain, weakness or numbness and in fact one doctor documented that Mr. Tango had absolutely no complaints of right upper extremity pain, weakness or numbness.”

· “When he was evaluated by Dr. Oliveros, he had no complaints of right upper extremity numbness and the only positive finding on the examination was a Phalen’s test.”

· “Given that there is no well-documented history of trauma to the right arm and that Mr. Tango is a manual laborer, it is my opinion that the right arm nerve conduction testing was not reasonable, necessary or related.”

5. The Plaintiff’s attorney was required to litigate this case until the Defendant agreed to pay the benefits that were at issue in this lawsuit.

6. A reasonable attorney’s fee for the Plaintiff’s attorney for the underlying claim is therefore calculated as follows: 46.8 + 55.4 hours x $350 + 300 per hour x 2.0 (multiplier) = $32,760 + 33,240

7. The court finds that $66,000.00 is due and payable to the Plaintiff’s attorney as and for costs associated with the prosecution of the Plaintiff’s claim.

8. The court finds that Plaintiff’s attorney is entitled to interest on the attorney’s fees at 7% from the date of confession of judgment the entry of final judgment through the date of this order in the amount of $1,734.08. Quality Engineering Installation v. Higley South, Inc., 670 So.2d 929 (Fla. 1996); Orlando Regional Med. Ctr., Inc. v. Chmielewski, 573 So.2d 876 (Fla. 5th DCA 1990).

9. Plaintiff’s expert witness on attorney’s fees, Kevin Weiss, Esq., is entitled to be compensated for the time he expended in preparing to testify and testifying in this case. Mr. Weiss expended 7.5 hours in this case, and a reasonable hourly rate for Mr. Weiss is $350.00 per hour. See, Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995).

IT IS THEREFORE ORDERED AND ADJUDGED as follows:

1. Plaintiff’s attorney shall have and recover from the Defendant, ALLSTATE INSURANCE COMPANY, a corporation authorized and doing business in the State of Florida the sum of $66,000.00 as attorney’s fees, together with the sum of $798.45 as and for costs associated in this matter for which let execution issue forthwith.

2. Plaintiff’s attorney shall have and recover from the Defendant, Allstate Insurance Company, interest on the attorney’s fees at 7% from the date of the Judgment through the date of the fee hearing (168) in the amount of $1,734.08 for which let execution issue forthwith.

3. Plaintiff shall have and recover as expert witness fees for Kevin Weiss, Esquire from the Defendant, ALLSTATE INSURANCE COMPANY, fees in the amount $2,625.00 for the time expended in this case for which let execution issue forthwith.

4. Plaintiff shall take from Defendant, Allstate Insurance Company, the TOTAL SUM of $71,157.53 as attorney’s fees and costs for prosecution of this claim for which let execution issue forthwith.

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