KENNY NASH, APPELLANT,
v.
AMR CORP., AND SPECIALTY RISK SERVICES, INC., APPELLEES

Fla. 1st DCA | 2005-10-18
No. 1D04-5243
KAHN, C.J., and THOMAS, J., concur.
913 So. 2d 699 Florida District Court of Appeal, First District (2005) Positive Treatment
Cited by 4 cases

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Holding

The court held that the JCC abused her discretion in denying costs but affirmed the award of attorney's fees.


Headnotes

[1] A judge of compensation claims has the authority to resolve conflicting testimony regarding the reasonable number of hours expended by an attorney in obtaining a successf…

[2] A prevailing party in a workers' compensation proceeding is generally entitled to taxation of costs unless the court orders otherwise.

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Facts & Procedural History

The claimant prevailed on one claim for medical mileage reimbursement, entitling him to attorney's fees and costs. The JCC awarded fees based on 15 ho…

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Opinion of the Court
BROWNING, J.

BROWNING, J.

Kenny Nash, the claimant in these workers’ compensation proceedings, appeals the November 24, 2004, Order on Attorney’s Fees and Costs issued by the judge of compensation claims (JCC). Appellant asserts that the JCC abused her discretion, first, in denying the claim for certain costs relating to certified mail expenses for two petitions for benefits, postage, medical bill and record retrieval fees, and photocopying charges; and second, in reducing (to 15 hours) the amount of time found to have been expended by counsel in successfully prosecuting the claim for medical mileage reimbursement. We affirm the amount awarded for attorney’s fees, reverse the denial of costs, and remand for reconsideration of the claim for costs.

In a January 2004 compensation order, the JCC granted Appellant’s claim for medical mileage reimbursement and ordered Appellees, the ' employer/carrier (E/C), to pay Appellant $94.10. A number of Appellant’s other claims either were withdrawn by the commencement of the November 2003 merits hearing or were denied by the JCC. Because Appellant prevailed on the one claim, the JCC found that Appellant’s counsel was entitled to attorney’s fees and costs pursuant to section 440.34, Florida Statutes (2000). Appellant’s counsel filed a Verified Petition for Attorney’s Fees and Costs, with exhibits.

At the hearing on the verified petition, the parties agreed that a statutory attorney’s fee ($18.82) on the $94.10 value of the medical mileage benefits obtained would be inadequate, and the JCC determined that an upward deviation from the statutory fee would be appropriate. Appellant’s attorney contended that he had expended a total of 107.79 hours in representing Appellant, of which no less than 50-70% was expended securing the mileage reimbursement benefits. Accepting the substantially lower figure (15 hours) suggested by the E/C’s attorney as a reasonable amount of time actually expended by Appellant’s lawyer on the only successful claim, and multiplying those hours by $200.00, the figure asserted by Appellant’s attorney as a reasonable hourly rate, the JCC awarded attorney’s fees in the amount of $3,000.00. In his verified petition, Appellant’s counsel conceded that he was unable to delineate “scientifically” or exactly which hours of the total representation had been spent on the successful claim. Appellant’s own expert witness opined that a range of 35-50 hours, down from the 55.64-77.9 hours claimed by Appellant’s counsel, was reasonable.

At the hearing, Appellant’s counsel never challenged the qualifications of Appellees’ attorney or objected to Appellees’ failure to present their own expert testimony on, the issue of a reasonable attorney’s fee. See Crittenden Orange Blossom Fruit v. Stone, 514 So. 2d 351, 353 (Fla.1987).

In considering the opposing attorneys’ conflicting sworn testimony regarding the number of hours reasonably expended in obtaining the one successful claim for benefits, the JCC exercised her authority to resolve the conflict. See Ullman v. City of Tampa Parks Dep’t, 625 So. 2d 868, 872 (Fla. 1st DCA 1993) (en banc).

Because competent substantial evidence in the record supports the award of 15 hours, at an hourly rate of $200.00, we find no abuse of discretion and affirm the award of attorney’s fees in the amount of $3,000.00.

Appellant also sought costs. Florida Rule of Appellate Procedure 9.400(a) addresses costs and states that “[c]osts shall be taxed in favor of the prevailing party unless the court orders otherwise,” and “[tjaxable costs shall include ... charges for preparation of the record ... and other costs permitted by law.” See also § 440.34(3), Fla. Stat. (2000) (providing for taxation against the employer of “reasonable costs of such proceedings,” not including attorney’s fees, where a claimant prevails in any proceeding before a JCC).

Section 440.192(1), Florida Statutes (2000), calls for the service “by certified mail” of a petition for benefits by any employee who has not received a benefit to which he claims entitlement. Appellant’s claim for taxable costs was sufficiently specific to allow the JCC to make a reasonable determination. See Fla. Admin. Code R. 60Q-6.124(3)(a)5. Concluding that the JCC erred in summarily denying taxable costs, we reverse that part of the final order and remand for reconsideration in light of Rule 9.400(a) and Morris v. Dollar Tree Store, 869 So. 2d 704, 706-07 & n. 1 (Fla. 1st DCA 2004) (finding issue was preserved, and workers’ compensation claimant was entitled to costs associated with certified mail for filing and service of two petitions for benefits for which benefits were secured).

The final order is AFFIRMED in part, REVERSED in part, and REMANDED for reconsideration of the denial of costs.

KAHN, C.J., and THOMAS, J., concur.


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Citator

Cited By

  • …... a specific response ... shall, absent good cause, result in acceptance of the allegations in the motion as true.” Id. A claim for taxable costs must be sufficiently specific to allow the JCC to make a reasonable determination. Nash v. AMR Corp., 913 So. 2d 699, 701 (Fla. 1st DCA 2005). The JCC correctly concluded that Claimant’s response was not evidence because it was unverified. See Hale v. Shear Express, Inc., 946 So. 2d 94, 96 (Fla. 1st DCA 2006) (reiterating that unsworn responses and arguments of c…
  • Nash v. AMR Corp., 937 So. 2d 1205 (Fla. 1st DCA 2006)
    …able costs was denied. In the first appeal, we found no abuse of discretion in the attorney’s fee award and affirmed it, but we reversed the JCC’s summary denial of costs and remanded for reconsideration of the issue of costs. See Nash v. AMR Corp., 913 So. 2d 699 (Fla. 1st DCA 2005). In -that original appeal,. the claimant moved for appellate attorney’s fees pursuant to section 440.34(3)(b), Florida Statutes (2000), and Florida Rule of Appellate Procedure 9.400(b). In our order dated October 18, 2005, appel…

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