MARIE D. PIERRE, APPELLANT,
v.
ROYAL CARE/USIS, APPELLEES
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In this workers' compensation case, the court reversed the Judge of Compensation Claims' denial of attorney's fees for obtaining a psychiatric evaluation benefit. The claimant met all statutory requirements under Florida Statutes § 440.34(3) and was entitled to recover fees for the full amount of undisputed attorney time spent.
The claimant is entitled to recover attorney's fees for the full 29.2 undisputed hours at the reasonable hourly rate determined by the JCC. The denial of fees was erroneous because the JCC based it on the claimant's alleged refusal to obtain the evaluation, when the employer/carrier had actually declined to provide the benefit for other reasons unrelated to the claimant's state of mind.
[1] A claimant is entitled to recover attorney's fees for successfully prosecuting a petition for benefits if the employer/carrier responds to the petition and the claimant h…
[2] A workers' compensation claimant is entitled to attorney's fees for obtaining a benefit when the employer/carrier declined to provide the benefit for reasons unrelated to…
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Join FLexlaw to unlock all legal intelligence“A claimant is entitled to recover a reasonable attorney's fee if she requests a benefit via a petition for benefits (PFB), the Employer/Carrier (E/C) files a response thereto, and the claimant has employed an attorney in the successful prosecution of the PFB; the fee does not attach until thirty days after the E/C receives the PFB.”
Establishes the statutory requirements for attorney's fee entitlement under § 440.34(3)
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Join FLexlaw to unlock all legal intelligenceClaimant filed a petition for benefits in July 2009 requesting a psychiatric evaluation. The employer/carrier declined to provide the benefit, citing …
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In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying her request for an attorney’s fee for obtaining the benefit of a psychiatric evaluation, and basing the fee award on only half the undisputed attorney time (14.6 of the 29.2 undisputed hours) on the reasoning that the total time was divided equally between work on the psychiatric evaluation and work on another benefit. Because Claimant meets the requirements of section 440.34(3), Florida Statutes (2007), we reverse the order, and remand.
A claimant is entitled to recover a reasonable attorney’s fee if she requests a benefit via a petition for benefits (PFB), the Employer/Carrier (E/C) files a response thereto, and the claimant has employed an attorney in the successful prosecution of the PFB; the fee does not attach until thirty days after the E/C receives the PFB. See § 440.34(3), Fla. Stat. (2007). Here, Claimant filed a PFB in July 2009 seeking a psychiatric evaluation. The E/C declined to provide that benefit, on the grounds that there was no medical necessity for a psychiatrist and no referral for such by an authorized treating provider.
In the order on the merits, the JCC awarded a psychiatric evaluation, but reserved jurisdiction on entitlement to attorney’s fees for the psychiatric evaluation. The JCC found that Claimant testified at the December 2009 merits hearing she refused to go to a psychiatrist when two doctors “first recommended it” but changed her mind when told it would improve her pain to do so, and the JCC concluded that, “[u]ntil [Claimant changed her mind, there was no reason for [the] E/C to schedule an evaluation with a psychiatrist.” After a fee hearing, the JCC denied a fee for the psychiatric evaluation, reasoning Claimant provided no evidence that her change of mind had been conveyed to the E/C before the merits hearing.
The denial of the fee was error because it was based on the assertion that Claimant would have refused to go to the evaluation. The E/C had declined to provide the benefit for other reasons, however, which did not implicate Claimant’s state of mind. Claimant had to employ an attorney to obtain the benefit, and was awarded the benefit more than thirty days after the E/C received the PFB. Consequently, she is entitled to attorney’s fees under section 440.34(3), Florida Statutes, for the full 29.2 hours submitted, at the hourly fee found reasonable by the JCC and undisputed by the E/C.
*649REVERSED and REMANDED for entry of an order consistent with this opinion.
HAWKES, C.J., ROBERTS and ROWE, JJ., concur.
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FOX v. State, 104 So. 3d 371 (Fla. 1st DCA 2012)…s, an appellate court will consider such a claim only if it is obvious from the record that counsel was ineffective, “the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” Dailey v. State, 46 So. 3d 647, 647 (Fla. 1st DCA 2010) (quoting Corzo v. State, 806 So. 2d 642, 645 (Fla. 2d DCA 2002)). The record in this case does not justify resolving Appellant’s ineffective assistance claim on direct appeal. Appellant may seek relief via postconviction m…
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Hill v. State, 114 So. 3d 1071 (Fla. 1st DCA 2013)…stent with the State’s concession of error, we conclude that this is one of those rare circumstances in which reversal is warranted based on ineffective assistance of counsel that is apparent on the face of the record. See generally Dailey v. State, 46 So. 3d 647 (Fla. 1st DCA 2010) (explaining that appellate court will only consider claims of ineffective assistance of counsel on direct appeal “when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is ind…
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