Under the current state of the Florida law, a claimant can request an advance of up to $2,000 in their claim, even if the claim has been denied, and regardless of whether or not the E/C will be able to recoup it. (There is a 2nd layer of advance of up to $7,500 but those are rare and we have defenses)
In the Kuhn case in 2012, the 1st DCA laid out the 2-step analysis for an advance up to $2,000:
- First, the claimant must fall into one of three statutory categories: 1) not returned to same or equivalent employment with no substantial reduction in wages; 2) suffered a substantial loss in earning capacity; or 3) suffered a physical impairment.
- Second, the JCC must find that the claimant is a proper claimant and has provided justification for the request.
So, almost every claimant qualifies for an advance, even on denied claims unfortunately per the caselaw Taylor v. Air Canada . However, the amount is not automatically $2,000. The claimant must provide evidence at an Evidentiary Hearing as to the exact amount needed and why; this consists of unpaid bills, collection notices, etc..that have to add up the amount they are seeking.
A key point is that the claimant attorney is not entitled to any attorney fees for securing an advance for the claimant. Why? Because an advance is not a “benefit”, it is a loan against future benefits. The second key point is that it does not make sense in most instances to fight the advance at a hearing as typically the claimant will receive some amount and that amount can be recouped as an overpayment by withholding 20% of indemnity or deducting from a future settlement. The defense costs will likely outweigh the advance, especially if it can be recouped.
However, I think negotiating an amount lower than $2,000 makes sense in many cases. It saves defense costs, makes it more likely that it can be recouped and gets the claimant their advance money sooner rather than wait for a hearing a few weeks out at least. Claimant attorneys are inclined to negotiate and accept less because they do not get fees for spending any more time on the issue at a hearing.
Here is the case that states the claimant has to prove the amount, it is not an automatic $2,000.
Worthy v. Jimmie Crowder Excavating, 100 So.3d 727 (Fla. 1st DCA 2012).
The Claimant requested a $2,000 advance payment under section 440.20(c)(12), Florida Statutes. In support of his request, the Claimant testified he had several personal bills that were in arrears and receipt of the funds would be in his best interest. The E/C defended against the award arguing the Claimant failed to provide evidence he needed exactly $2,000 as opposed to some lower amount. The JCC denied the Claimant’s request. The First DCA upheld the JCC’s denial. Notably, the court advised that once a claimant has shown he has not returned the same or similar employment with no substantial reduction in wages as required by the statute, the JCC may provide the award, but is not required to do so. As the Claimant here failed to present evidence of why the amount of the advance, $2,000, was appropriate, adequate consideration of the Claimant’s need could not be had.
For more fun tips like this be sure to attend our webinars, including the 4 hour law and ethics webinar on 12/5/23. You can register on the events page of our website for this or any of our FL, GA and TN webinars : https://eraclides.com/events/ Hope to see many of you at our holiday parties, 11/30 Tampa, 12/1 Orlando and 12/9 Atlanta.
Morgan Indek | Managing Partner