HOWARD FRANCO, APPELLANT,
v.
SCI AT THE PALMER CLUB AT PRESTANCIA AND ZURICH NORTH AMERICA, APPELLEES
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In this workers' compensation case, the court reversed the Judge of Compensation Claims' denial of attorney fees and costs to the claimant's attorney. The court held that because the employer/servicing agent failed to accept or deny the petition within 14 days and payment was ultimately made more than 30 days later, all statutory requirements for attorney fees under section 440.34(3)(b), Florida Statutes were satisfied.
The court held that the claimant's attorney established entitlement to attorney fees and costs because: (1) the e/sa failed to accept or deny the petition within 14 days and was deemed to have denied it; (2) the claimant successfully achieved acceptance and payment of the claim; and (3) more than 30 days elapsed from the date the e/sa received the petition, satisfying all statutory requirements of section 440.34(3), Florida Statutes.
[1] An employer/servicing agent is deemed to have denied a workers' compensation petition if it fails to accept or deny the petition within 14 days of receipt.
[2] Successful prosecution of a workers' compensation petition is achieved when the claim is accepted and paid.
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Join FLexlaw to unlock all legal intelligence“Successful prosecution is achieving 'acceptance and payment of the claim.'”
Establishes the standard for what constitutes successful prosecution under section 440.34, focusing on the outcome rather than the effort expended.
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Join FLexlaw to unlock all legal intelligenceThe claimant's attorney filed a petition for workers' compensation benefits. The employer/servicing agent failed to accept or deny the petition within…
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PER CURIAM.
At issue in this workers’ compensation case is whether claimant’s attorney is entitled to be paid an attorney fee and costs by the employer/servicing agent (e/sa) under section 440.34(3)(b), Florida Statutes (2006). We find the Judge of Compensation Claims erred in denying entitlement to a fee and reverse and remand.
In determining whether claimant was entitled to an attorney fee from the e/sa, the JCC correctly found the petition was accepted when payment was made, not when forms indicating the acceptance of PTD were completed. See Amerimark, Inc. v. Hutchinson, 882 So. 2d 1114, 1115 (Fla. 1st DCA 2004). The JCC then addressed whether claimant’s attorney met the burden of establishing entitlement, under section 440.34(3), Florida Statutes (2006), which provides that a fee is due when the following circumstances exist: the “carrier files a response to petition denying benefits;” there is a “successful prosecution of the petition;” and a period of 30 days elapses from “the date the carrier ... receives the petition.” When applying this section, the JCC relied on Zabik v. Palm Beach County School District, 901 So. 2d 887 (Fla. 1st DCA 2005), to find the claim was never controverted and claimant’s attorney did not successfully prosecute the petition because “more than minimal effort to procure benefits for the claimant” was necessary. The JCC’s reliance is misplaced.
Section 440.34, Florida Statutes, has been amended since 2000 when Zabik’s accident occurred. The 2003 amendments removed the discretionary factors in section 440.34(1), Florida Statutes (2000). See Ch.2003-412, § 26, at 3943-3944, Laws of Fla. Here, there is no dispute that the e/sa failed to accept or deny the petition within 14 days of its receipt.
Consequently, the e/sa are deemed to have denied the petition. See 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 acceptance and payment of the claim, all of the statutory requirements of section 440.34(3), Florida Statutes (2006), have been met. Consequently, Claimant’s attorney established entitlement to a fee and costs at the expense of the e/sa. The parties agreed that if a fee and costs were due, the proper amounts were $6,702.06 and $14.64, respectively. Accordingly, we reverse the JCC’s order and remand for entry of an order directing payment to claimant’s attorney a fee in the amount of $6,702.06 and costs of $14.64.
REVERSED and REMANDED, with directions.
KAHN, LEWIS, and POLSTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Neville v. JC Penney Corp., 130 So. 3d 235 (Fla. 1st DCA 2013)…the “carrier files a response to the petition denying benefits,” there is a “successful prosecution of the petition,” and a period of thirty days elapses from “the date the carrier receives the petition.” Franco v. SCI at Palmer Club at Prestancia, 989 So. 2d 709, 710 (Fla. 1st DCA 2008). A JCC’s order denying entitlement to an attorney’s fee will be reversed when the findings made by the JCC are not supported by CSE. Hale v. Shear Express, Inc., 946 So. 2d 94, 96 (Fla. 1st DCA 2006). Here, there is no dis…
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Williams v. State of Fla. Dep't OF Corrections/Division OF Risk Mgmt., 97 So. 3d 923 (Fla. 1st DCA 2012)…t. See McDonald’s Rest # 7160 v. Montes, 736 So. 2d 768, 769 (Fla. 1st DCA 1999); see also § 440.192(8), Fla. Stat. (2008). “Successful prosecution is achieving ‘acceptance and payment of the claim.’ ” Franco v. SCI at the Palmer Club at Prestancia, 989 So. 2d 709, 710 (Fla. 1st DCA 2008) (quoting Mitchell v. Sunshine Cos., 850 So. 2d 632, 633 (Fla. 1st DCA 2003)). A successful claimant is not enti- [*926] tied to attorney’s fees, however, “until 80 days after the date the carrier or employer, if self-insured…
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Sansone v. Frank Crum/Frank Winston Crum Ins., Inc., 201 So. 3d 1289 (Fla. 1st DCA 2016)…ion of the petition,” but fees cannot attach until thirty days after the employer receives the petition. § .440.34, Fla. Stat.; see also Neville v. JC Penney Corp., 130 So. 3d 235, 235 (Fla. 1st DCA 2013); Franco v. SCI at Palmer Club at Prestancia, 989 So. 2d 709, 710 (Fla. 1st DCA 2008). Therefore, an award under section 440.34(3)(b) requires some part of the “successful prosecution” to occur after thirty days. In other words, if the petition fully succeeds before the thirty days run, fees do not attach. Cf…
Previewing 3 of 7 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)
- Mitchell v. Sunshine Cos., 850 So. 2d 632 (Fla. 1st DCA 2003)
- McDONALD'S Rest. # 7160 & McDonald's Claim Ctr. v. Montes, 736 So. 2d 768 (Fla. 1st DCA 1999)
- Amerimark, Inc. v. Hutchinson, 882 So. 2d 1114 (Fla. 1st DCA 2004)
- Zabik v. Palm Beach Cnty. Sch. Dist. & F.A. Richard & Assocs., Inc., 901 So. 2d 887 (Fla. 1st DCA 2005)