Last week, the 1st DCA addressed the issue of the counting of 30 days after a PFB is filed for purpose of claimant attorney fee entitlement in Zenith v. Barrizonte-Cruz (Click Here).
Under 440.34(3), a claimant’s attorney is not entitled to a carrier-paid fee for providing benefits untimely “until 30 days after the date the carrier or employer, if self-insured, receives the petition.”
Under the WC “Q” Rules of Procedure, “if any act required to be done, or allowed to be done, falls on a Saturday, Sunday, or legal holiday, performance of that act shall be required on the next regular working day.”
So, the E/C’s argument was if the 30 days for attorney fee purposes falls on a weekend or holiday, the E/C has until the next business day to respond to the PFB or provide the benefit.
Nope. The 1st DCA ruled that 30 days is 30 days, Chapter 440 trumps the Q-Rules. You have to look ahead, and if your 30 day window ends on the weekend, your response is due on Friday.
The 1st DCA also ruled this same way in the 1-time change cases, ignoring the Q-rule and finding five days is five days.
So in an abundance of caution, let’s address the other timeframe in that Q-rule (below). The 1st DCA has basically found that two of the three timeframes in the Q-rule are trumped by the statute. The third rule, yet to be addressed, states that you don’t count the day you receive it as day one, the count starts the next day. Well, given that the 1st DCA ignored the other two rules, I would advise that in handling claims, count the day you receive anything as day one. As long as it is received by 4:59 pm, that counts as a day.
As for Thanksgiving one-time changes….this is a problem. If Wednesday counts, its over before you return to work on Monday. Hopefully common sense will prevail on this one.
60Q-6.109. COMPUTATION OF TIME
In computing any period of time prescribed or allowed by these rules, by order, or by applicable statute, the day of the act or event from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included. If any act required to be done, or allowed to be done, falls on a Saturday, Sunday, or legal holiday, performance of that act shall be required on the next regular working day. When the period of time allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation. As used in this rule, legal holiday means those days designated in Section 110.117, Florida Statutes.
Morgan Indek | Managing Partner