Greetings,

The 1^st DCA issued a ruling last week regarding the award of claimant attorney’s fees when no actual benefits are awarded at the time of the trial, but possibly due later.  The case is attached, Guerrea v. Becton Dickinson & Co.

At the trial, the claimant’s was awarded an increase in his AWW, but because he was already at the maximum compensation rate, no additional indemnity benefits were due at that time.  Also, although the AWW awarded was an increase over what the E/C had been using, it was a smaller increase than the claimant had been seeking. 

At the trial level, the JCC denied entitlement to attorney fees because “no actual or real benefit was secured”.

The 1^st DCA disagreed and awarded the claimant’s attorney fees. 

The court pointed out that although the AWW correction did not result in any immediate benefits being due, it could possibly, maybe, at some point in the potential future, perhaps result in additional benefits being due because it increased the 80% threshold for TPD and also affected any future SS Offsets.  Also, the fact that the AWW that was awarded was less than the claimant sought does not change the fact the claimant did win an increase.

Frustrating for sure, but a good reminder that it doesn’t always make sense to litigate some issues.

Guerrea v. Becton Dickinson & Co.

Sincerely,

Morgan Indek | Managing Partner