There is some understandable confusion as to when a claimant is entitled to “prevailing party” costs for filing a Petition for Benefits. The Jennings case (below) was the when the 1st DCA separated entitlement to costs from entitlement to attorney fees. In essence, the DCA stated that although fees are not due if a benefit is provided timely (30 days after PFB), if a claimant simply files a PFB and a listed benefit is provided, the claimant is the prevailing party and entitled to recover costs. This is true even if the benefit is given 1 day after the PFB is filed.
There is a mixed bag of JCC level decisions as to whether or not a claimant can secure attorney fees if costs are not stipulated to within 30 days. We do not have a 1st DCA decision yet on this issue, but most are erring on the side of caution and agreeing to costs.
However, costs are not due in all situations.
- If none of the benefits listed on the PFB are denied or not provided, there are no costs owed. If nothing is given, the claimant is not the “prevailing party” and not entitled to costs.
- If the benefits were already provided prior to the PFB being filed, arguably no costs are owed. The claimant did not “prevail” on anything claimed because it was not in dispute. To be safe, in these cases, your defense counsel (in our firm because you are like really smart) needs to file a Motion to Dismiss the PFB within 30 days of when it is filed.
As always, please let me know if you have any questions.
Jennings v. Habana Health Care Center, 1D 15-1749 (Fla.1st DCA 12/28/2015)
The Claimant sustained a compensable injury on September 2, 2014, when a window awning fell on her while working. Habana Health Care, the Employer authorized and provided medical attention that same day, and the PCP referred the claimant to an orthopedic specialist, following x-rays that revealed a shoulder fracture. On September 9, 2014, a week later, a Petition for Benefits was filed seeking authorization of the orthopedic specialist. The adjuster authorized an orthopedist on September 12, 2014, and notified the claimant’s attorney that the scheduled appointment would take place three days later on September 15, 2014.
The JCC ruled that the claimant was not entitled to costs as she was not the prevailing party. The JCC found that the E/C response was timely pursuant to FS 440.192(8) which provides that the E/C must pay the requested benefits or shall file a response to the PFB within 14 days upon receipt. The JCC also ruled the E/C response was timely under FS 440.34(3), the 30 day attorney fee portion of that provision, since the E/C clearly authorized the requested benefit within 30 days from the receipt of the Petition.
However, the First DCA determined the JCC misread the statutory provisions, conflating attorney’s fees and costs. The DCA found that although attorney’s fees and costs are routinely claimed, and not infrequently denied the entitlement to costs is a distinct issue, separate and apart from entitlement to attorney’s fees. The DCA found FS 440.192(8) and 440.34(3) (the 30 day attorney fee language in which the JCC relied) were irrelevant and did not apply to prevailing party costs. The DCA pointed out that the prevailing party costs section of FS 440.34(3) states “If any party should prevail in any proceeding before a [JCC]….there shall be taxed against nonprevailing party the reasonable costs of such proceeding, not to include attorney’s fees.” The DCA reasoned that the Claimant was the prevailing party since the petition was received by the Carrier on September 11, 2014 and the Carrier then “furnished” the requested benefits on September 12, 2014, entitling the claimant to litigation costs as a matter of law. The DCA pointed that the PFB included a certification that the Claimant made a good faith effort to resolve the dispute but was unable to do so prior to the filing of the Petition which the Employer/Carrier did not challenge. The DCA reversed the JCC order with instructions to award litigation costs.
Morgan Indek | Partner