MARIA T. NEVILLE, APPELLANT,
v.
JC PENNEY CORP., WELLINGTON GREEN MALL/CHARTIS INSURANCE AND CHARTIS, APPELLEES
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In this workers' compensation appeal, the Florida First District Court of Appeal addressed whether an employer/carrier must pay the claimant's attorney fees under section 440.34(3)(b). The court affirmed the denial of fees for a July 2009 petition but reversed the denial of fees for a November 2009 petition, finding all statutory requirements were met.
The court affirmed the denial of attorney fees for the July 2009 petition because competent substantial evidence supported the finding that claimant's counsel did not secure benefits sought in that petition. The court reversed the denial of attorney fees for the November 2009 petition, finding all three statutory requirements were satisfied: the carrier denied benefits by failing to respond, more than thirty days elapsed from the petition date, and claimant successfully achieved acceptance and payment of the claim.
[1] A workers' compensation carrier is deemed to have denied a petition for benefits by failing to accept or deny the claim within fourteen days.
[2] Entitlement to an employer/carrier-paid attorney's fee under section 440.34(3), Florida Statutes (2008), requires the carrier to deny benefits, successful prosecution of…
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Join FLexlaw to unlock all legal intelligence“In order to establish entitlement to an E/C-paid attorney's fee under section 440.34(3), Florida Statutes (2008), the following circumstances must exist: 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.'”
Establishes the three-part statutory test for E/C-paid attorney fees
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Join FLexlaw to unlock all legal intelligenceMaria Neville filed petitions for workers' compensation benefits on July 20, 2009, and November 17, 2009, seeking dental treatment. The employer/carri…
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At issue in this workers’ compensation appeal is whether Claimant’s attorney is entitled to be paid an attorney fee by the Employer/Carrier (E/C) under section 440.34(3)(b), Florida Statutes (2008), based on petitions for benefits filed on July 20, 2009, and November 17, 2009. Because competent substantial evidence (CSE) supports the finding that Claimant’s counsel did not secure benefits sought in the July 2009 petition, we affirm this issue without further comment. As to Claimant’s November 2009 petition, we find the Judge of Compensation Claims (JCC) erred by denying entitlement to a fee, and reverse and remand.
In order to establish entitlement to an E/C-paid attorney’s fee under section 440.34(3), Florida Statutes (2008), the following circumstances must exist: 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 dispute that the E/C failed to respond to Claimant’s November 2009 petition seeking additional dental treatment. Thus, Claimant established that the E/C denied benefits sought in her petition. See McDonald’s Restaurant # 7160 v. Montes, 736 So.2d 768, 769 *236(Fla. 1st DCA 1999) (holding E/C is deemed to have denied petition by failure to either accept or deny claim within fourteen days). It is undisputed that the E/C agreed to authorize additional compensa-ble dental treatment with Dr. Smarinsky during a February 2010 mediation conference, well in excess of thirty days after the filing of Claimant’s November 2009 petition. Further,.it is undisputed that the E/C accepted and paid Dr. Smarinsky in full (in December 2010) for services rendered on June 24, 2010. Moreover, the E/C’s adjuster testified that but for the motion to compel compliance with the mediation agreement filed by Claimant’s counsel, the bill for services rendered on June 24, 2010, would never have been paid. Thus, Claimant established that Claimant’s attorney successfully prosecuted her claim. See Franco,. 989 So.2d at 710 (noting successful prosecution is achieving “acceptance and payment of the claim”). In Franco, this Court held that because more than thirty days had elapsed from the date the E/C received the petition and claimant had thereafter successfully achieved acceptance and payment of the claim, all of the statutory requirements of section 440.34(3) had been met for entitlement to attorney’s fees. Id. Accordingly, the JCC erred by denying Claimant’s entitlement to an award of attorney’s fees based on her November 2009 claim for additional dental care. For these reasons, this issue on appeal is reversed and remanded for determination as to the amount of the E/C-paid attorney’s fee.
AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.
PADOVANO, WETHERELL, and SWANSON, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Churchill v. DBI Servs., LLC, 361 So. 3d 896 (Fla. 1st DCA 2023)…. 1st DCA 2020). Attorneys’ Fee for Success A JCC’s order denying entitlement to an employer/carrier paid fee will be reversed when the findings made by the JCC are not supported by competent, substantial evidence. See Neville v. JC Penney Corp., 130 So. 3d 235, 235 (Fla. 1st DCA 2013). Churchill is entitled to recover a reasonable fee for her attorneys’ successful prosecution of some of her claims in the PFB. Section 440.34(3), Florida Statutes provides: A claimant is responsible for the payment of her…
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Sansone v. Frank Crum/Frank Winston Crum Ins., Inc., 201 So. 3d 1289 (Fla. 1st DCA 2016)…Analysis Attorney’s fees under section 440.34(3)(b) require the “successful prosecution 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 wor…
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Neville v. J.C. Penney Corp., 135 So. 3d 525 (Fla. 1st DCA 2014)…sons that follow, we reverse. This case made its first appearance when Claimant sought review of an order denying entitlement to an Employer/Carrier (E/C)-paid fee based upon the filing of two petitions for benefits. See Neville v. JC Penney Corp., 130 So. 3d 235 (Fla. 1st DCA 2013). This Court affirmed the denial of an E/C-paid fee for a July 2009 petition, but held Claimant entitled to a fee from the E/C for success on the November 2009 petition. Id. The matter was reversed and remanded for a determination…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McDONALD'S Rest. # 7160 & McDonald's Claim Ctr. v. Montes, 736 So. 2d 768 (Fla. 1st DCA 1999)
- Franco v. SCI AT the Palmer Club AT Prestancia & Zurich N. Am., 989 So. 2d 709 (Fla. 1st DCA 2008)
- Hale v. Shear Express, Inc., 946 So. 2d 94 (Fla. 1st DCA 2006)