GREGORY MITCHELL, APPELLANT,
v.
SUNSHINE COMPANIES, EMPLOYER/UNISOURCE ADMINISTRATORS, CARRIER/SERVICING AGENT, APPELLEES
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In this workers' compensation appeal, the court reversed a denial of attorney's fees, holding that a claimant whose attorney successfully obtained acceptance of a permanent total disability claim after the carrier's failure to respond (treated as a constructive denial) is entitled to attorney's fees under Florida Statute § 440.34(3)(b), regardless of whether a merits hearing occurred.
The claimant is entitled to an attorney's fee award under § 440.34(3)(b) because he established both necessary predicates: (1) the carrier filed (or constructively denied) a notice of denial, and (2) the claimant's attorney successfully prosecuted the claim by obtaining the carrier's acceptance and payment of benefits. The successful prosecution is achieved through acceptance and payment regardless of whether a merits hearing occurred.
[1] An employer or carrier's failure to timely respond to an amended petition for benefits is treated as the procedural equivalent of a notice of denial for purposes of attor…
[2] An attorney's efforts in obtaining benefits through mediation and subsequent acceptance by the employer/carrier constitute a successful prosecution of the claim for attor…
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Join FLexlaw to unlock all legal intelligence“the failure to timely respond is treated as the procedural equivalent of a notice of denial”
Establishes that the carrier's failure to respond to the amended petition constituted a constructive denial triggering the attorney's fee provision
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Join FLexlaw to unlock all legal intelligenceMitchell was injured in 1996 and petitioned for permanent total disability benefits. The carrier filed a notice of denial. Mitchell later submitted an…
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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. 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. The claimant here petitioned for permanent total disability benefits, and the carrier filed a notice of denial as to that petition. Several months later the claimant submitted an amended petition again claiming permanent total disability, and the employer/carrier did not file a notice of denial as to the amended petition. The employer/carrier did not then accept the claim, and the failure to timely respond is treated as the procedural equivalent of a notice of denial. Russell Corp. v. Brooks, 698 So. 2d 1334 (Fla. 1st DCA 1997); see also Alachua County Bd. of County Comm’rs v. Starling, 699 So. 2d 310 (Fla. 1st DCA 1997). As indicated in McDonald’s Restaurant # 7160 v. Montes, 736 So. 2d 768 (Fla. 1st DCA 1999), the claimant was therefore entitled to a fee award if his attorney then successfully prosecuted the permanent total disability claim.
Rather than proceeding to an evidentiary hearing, the parties participated in mediation and the carrier thereafter agreed to accept the claim. And while this acceptance avoided the necessity of a merits hearing, the attorney’s efforts in obtaining the benefits constitutes a successful prosecution of the claim for purposes of an attorney’s fee award. Soriano v. 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.
When the carrier eventually began paying permanent total disability benefits several months after indicating that the claim would be accepted, the payment was made retroactive to a date prior to the claimant’s amended petition for such benefits. In denying the subsequent attorney’s fee claim, the judge noted that there was no proof at the attorney’s fee hearing as to when the claimant attained maximum medical improvement and became permanently totally disabled, and the judge indicated that the claimant had failed to show that he was entitled to permanent total disability benefits before the time of acceptance. However, proof as to such details regarding the merits of the underlying disability claim is not required in the context presented here, with the successful prosecution 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).
The appealed order is reversed, and the case is remanded.
BOOTH and BARFIELD, JJ., concur.
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Mylock v. Champion Int'l & Sedgwick Claims Mgmt., 906 So. 2d 363 (Fla. 1st DCA 2005)…DictioNARY 1003 (8th ed. 2004). Such a solution was achieved, and, because claimant prevailed on his medical benefits claim, he was entitled to the payment of a fee at the carrier’s expense. As this court observed in Mitchell v. Sunshine Companies, 850 So. 2d 632, 633 (Fla. 1st DCA 2003): Rather than proceeding to an eviden-tiary hearing, the parties participated in mediation and the carrier thereafter agreed to accept the claim. And while this acceptance avoided the necessity of a merits hearing, the attor…
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Franco v. SCI AT the Palmer Club AT Prestancia & Zurich N. Am., 989 So. 2d 709 (Fla. 1st DCA 2008)…McDonald’s Rest. # 7160 v. Montes, 736 So. 2d 768, 769 (Fla. 1st DCA 1999); Russell Corp. v. Brooks, 698 So. 2d 1334, 1335 (Fla. 1st DCA 1997). Successful prosecution is achieving “acceptance and payment of the claim.” See Mitchell v. Sunshine Cos., 850 So. 2d 632, 633 (Fla. 1st DCA 2003). 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 acceptanc…
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Bussey v. Wal-Mart Store # 725 & Integrated Administrators, 867 So. 2d 542 (Fla. 1st DCA 2004)…sion of compensability but as a denial of every allegation in the petition for benefits.” 698 So. 2d 1334, 1335 (Fla. 1st DCA 1997). From that point forward, we have consistently adhered to this interpretation. See, e.g'., Mitchell v. Sunshine Cos., 850 So. 2d 632, 633 (Fla. 1st DCA 2003) (noting that a failure to timely respond is the procedural equivalent of a [*545] notice of denial); Denestan v. Miami-Dade County, 789 So. 2d 515, 516 (Fla. 1st DCA 2001) (holding that the late filing of notice of denial di…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Russell Corp. & Thomas Howell Group/GAB Robbins v. Brooks, 698 So. 2d 1334 (Fla. 1st DCA 1997)
- City OF Miami Beach v. Schiffman, 144 So. 2d 799 (Fla. 1962)
- Soriano v. Gold Coast Aerial Lift, Inc., 705 So. 2d 636 (Fla. 1st DCA 1998)
- McDONALD'S Rest. # 7160 & McDonald's Claim Ctr. v. Montes, 736 So. 2d 768 (Fla. 1st DCA 1999)
- Delancy v. State, 699 So. 2d 741 (Fla. 3d DCA 1997)
- Alachua Cnty. Bd. OF Cnty. Comm'rs & Palmer & Cay/Carswell v. Starling, 699 So. 2d 310 (Fla. 1st DCA 1997)