Morgan’s Tip of the Week – Surprise Attorney Fees

Greetings, one of the more frustrating aspects of the current WC law is a “later-proved benefit”, thus resulting in claimant attorney fees.

For example, the claimant files a PFB for TPD. The adjuster denies it because there is no lost wages. Then at some later point, while the PFB is still pending, TPD becomes due, and fees are awarded.

This just played out in a JCC decision, Johnson v. Pinellas County Sheriff Dept., OCCC # 15-022118SLR. The claimant filed for PTD benefits in June 2018. The E/C denied PTD on the grounds there was no medical evidence to support PTD, the claimant is capable of gainful employment and voluntary limitation of income.

In the deposition of the psychiatrist in January 2019 (7 months after the PFB), the E/C found out for the first time that the claimant was put at psych MMI in July 2018 with very significant restrictions. The E/C then voluntarily accepted the claimant as PTD in January 2019, and resolved the back due PTD for $2,500, 7 months after the PFB was filed.

The JCC noted the statutory dilemma that exists in 440.34 in this situation. He noted there does not appear to be discretion granted to the JCC regarding the fact that attorney fees become due if a benefit is provided more than 30 days after the PFB is filed. The JCC pointed out the E/C could have filed a Motion To Dismiss the PFB if the claimant was not at overall MMI* or could have conferenced with the psychiatrist. Entitlement to fees was awarded.

(*there is caselaw that a claimant can file for PTD if not at overall MMI if one condition alone that is MMI is enough to argue for PTD by itself).

So, what can be done to avoid this situation? Don’t just reflexively deny a benefit without looking down the road. AWW changes due to cancellation of health insurance are a great example. A PFB is good time to double-check with the ER on the status of HI. Try and get a conference with a doctor either via defense or an NCM in the 30 days to confirm you know what you think you know. Get files to defense as quick as possible, we only have 30 days from when the PFB is filed to file a Motion to Dismiss or its too late. Sometimes, nothing can be done to prevent this situation.


Morgan Indek | Managing Partner