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New Twist to Prevailing Party Costs Established by the First DCA

By: Michael Quiggins, Partner, Tallahassee

The First DCA issued another curious decision in the claimant’s favor on December 28, 2015 in Jennings v. Habana Health Care Center, (1D15-1749) which essentially exposes the employer/carrier to pay litigation costs to the claimant for benefits it authorizes on a timely basis, if they are provided after the Petition for Benefits has been filed. This decision has been discussed in many workers’ compensation circles in the last few weeks.  After seeing the oral arguments held on November 17, 2015, I was quite surprised at the published decision. According to the facts of the Jennings case, the claims adjuster took prompt action and authorized the benefits on a timely basis.   Based on the Court’s contrary ruling in regard to prevailing party costs, I sympathize with the prudent adjuster trying to do their job and furnish benefits quickly and efficiently under the allegedly self executing nature of the Florida workers’ compensation system.  

Ms. Jennings sustained a compensable injury on September 2, 2014, when a window awning fell on her while working.  Habana Health Care 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 nonprevailing 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 reversed the JCC order with instructions to award litigation costs.  

My recommendations in light of the Jennings decision:

Prior to the PFB:

  • Treat all informal requests for benefits as a PFB and act upon these requests prior to the filing of an actual petition.  Yes, this places you under the gun as there is no statutory waiting period for prevailing costs per the Jennings decision.  Keep opposing counsel apprised of the action to be taken, e.g., that you have contacted a physician’s office to schedule an appointment. 
  • The E/C should communicate the name of the doctor in writing to the claimant, her attorney and defense counsel. See Lord v. Santa Rosa Corr. Inst. 135 So.3d 1170, 1171 (Fla. 1st DCA 2014); Harrell v. Citrus Cty.Sch.Bd., 25 So. 3d 675, 678 (Fla.1st DCA 2010). The Jennings Court cited these prior decisions that held medical benefits are furnished untimely where the E/C did not advise the claimant of the selection of physician. Notify your defense counsel as well.  

Subsequent to the filing of a PFB:

  • The E/C must determine if the claimant’s attorney made a good faith effort to resolve the dispute PRIOR to the filing of the petition as required under the good faith certification requirement under 440.192(4). 
  • If it is determined that claimant’s counsel has not made a good faith effort to resolve the dispute prior to the filing of the petition as required under the good faith certification of 440.192(4), have your defense counsel file a Motion to Dismiss and bring the matter to the Court’s attention. The DCA provided us a clue in the Jennings decision by making note that the E/C did not challenge the certification that the claimant attempted to resolve the dispute in good faith prior to the filing of the petition.  Please make note that the E/C must file the motion within 30 days from the date the PFB is filed; otherwise, it waives the argument. As a matter of course, analyze all petitions to ensure compliance with the specificity and filing requirements outlined in FS 440.192.
  • It is recommended that the adjuster file a response to the petition within 14 days, asserting that the claimant did not make a good faith effort to resolve the issue prior to filing.
  • The E/C should request that claimant bear their own costs in the proceeding. If not, certainly the E/C should contemplate filing its own motion for costs as the prevailing party under the appropriate circumstances to perhaps lessen or neutralize this situation. 

Please keep in mind that prevailing party costs at the time of the filing of the petition should be quite minimal at that stage in the litigation process. However, creative and proactive claimant attorneys may attempt to use this chance to squeeze in a doctor conference or an IME and tax those costs against the E/C. This strategy will obviously depend upon the timing and how quickly the carrier responds. A much larger concern is whether claimants’ attorneys will reserve on costs and agree fees are not due in order to toll the statute under the Longley decision. See Longley v. Miami-Date County School Board, 82 So.3d 1098 (Fla. 1st DCA 2012). 

In conclusion, the Jennings decision is one where the legal reasoning seems disconnected from the real world experience in claims handling and the furnishing of benefits.  As the defense counsel pointed out in Jennings’ oral arguments, the benefit was being provided regardless of the claimant’s attorney intervention (although the evidentiary record support for this argument was not clear). I would hope that the legislature would take action to fix this situation.  Until such time, please follow our recommendations to avoid exposure to costs.