Greetings, we are seeing a new tactic by claimant’s attorneys trying to get attorney fees in regard to seeking costs.
Recently, on a number of Petitions for Benefits, I have seen claimant attorneys claim a specific amount of costs, albeit usually very low, like $3.25 for certified mail of PFB to the employer. The reflexive response to a PFB’s is to respond that the benefits were/are being provided already, and there is no entitlement to P.I.C.A (no penalties, interest, costs or attorney fees).
Most TPA’s/Carriers require the adjuster to respond to a PFB in 14 days, but the statute (440.34) says attorney fees are not due or owing unless we do not provide the benefits within 30 days of the PFB. Historically, attorney fees and costs were linked, no costs were due if no fees were due. Well…that was all blown up in the Jennings case in 2015.
In the Jennings case (below), the 1st DCA, separated costs from attorney fees. In sum, claimant attorney fees are still not owed until after 30 days, but costs are owed if a claimant simply files a PFB and “prevails” on any benefit they requested.
If you already provided the benefits requested prior to the PFB being filed, I would argue nothing was prevailed on, and no costs are owed. For example, the MRI happened before the PFB was filed. Arguably, anything you agree to provide listed on the PFB that you had not already done, you owe costs. Even if you respond to the PFB the same day and agree to provide the benefits, the claimant “prevailed” and we owe costs arguably.
To avoid being caught in an hourly attorney fee trap of thousands of dollars, I would recommend if you owe costs, agree to pay costs in the PFB response. And go ahead and issue the $3.25 to the claimant’s attorney before the 30 days elapses.
Jennings case below, and feel free to ask any questions.
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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 non-prevailing 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.
Sincerely,
Morgan Indek | Managing Partner