For as long as most people in the industry can remember, the standard response on all petitions for benefits was “No PICA due or owing.” That all changed, however, with Judge Hedler’s opinion in Alfronseca v. Marco Barquero Painting, Inc., OJCC Case No. 16-009562TAH (October 13, 2017). In this case, Judge Hedler found that the procurement of taxable costs constituted a benefit to the Claimant because the Claimant may have been liable to pay for such costs if the Employer/Carrier prevailed at trial. Therefore, Claimant’s Counsel obtained a benefit for the Claimant and was entitled to an Employer/Carrier paid fee.
This decision was predicated on a combination of Florida Statutes § 440.34(3)(b), Jennings v. Habana Health Care Ctr., 183 So. 3d 1131 (Fla. 1st DCA 2015), and Poyntz v. William Adeimy, Inc., 190 So. 2d 745 (Fla. 1966). Jennings determined that a prevailing Claimant is entitled to reimbursement of costs even if the Employer/Carrier responds within thirty days of the Petition for Benefits. Poyntz, which was decided 53 years ago, ruled that procuring reimbursement of costs constituted a benefit to the Claimant.
We have subsequently had two other JCCs rule on this same argument and both Judges determined that Claimant’s Counsel was NOT entitled to Employer/Carrier paid fees. The first occurred in Blanchet v. Busy Bee Car Wash, OJCC Case No. 14-021764MGK (July 18, 2018). There, Judge Kerr ruled that Claimant’s Counsel was not entitled to either attorney’s fees or costs because Claimant’s Counsel did not make a good faith effort to resolve the dispute prior to filing the petition for benefits. By failing to make a good faith effort prior to filing the petition, the petition became the first attempt by Claimant to obtain the requested benefit, thus making the petition the good faith effort. Claimant’s Counsel could not be rewarded for needlessly creating litigation when the Employer/Carrier would have authorized the benefit without a petition being filed.
In Patricia Phillips v. Leon County Public Works, Judge Newman wrote a 30 page opinion ruling that Claimant’s Counsel was NOT entitled to attorney’s fees for procuring reimbursement of costs. OJCC Case No. 14-028030JLN (September 13, 2018). Buried at the very end, Judge Newman specifically rejected the argument accepted by Judge Hedler. Judge Newman rejected the ruling in Poyntz because it was decided 53 years and the amount of statutory revisions Chapter 440 has undergone in that timeframe. Specifically, when Poyntz was decided, the statute contained a provision which stated that Chapter 440 should be construed “liberally in favor of the Claimant.” That provision has since been repealed by the Legislature.
It is certainly still prudent to stipulate to taxable costs when you respond to the petition for benefits so long as you have not already provided the benefit. If the Claimant requests authorization of a benefit that you authorized before the petition was filed, there’s no need to stipulate to taxable costs. But even if you respond one day after the petition was filed and authorize the benefit, you should continue to state something along the lines of “Employer/Carrier stipulates to taxable costs incurred as a result of this petition for benefits.” However, at least now we have two opinions which provide arguments to be made on older files littered with “No PICA due or owing” responses.