Greetings,

Here’s one for the good guys.

In one of my cases, the claimant filed a Motion for a $2,000 Advance.  We responded with a Motion stating the claimant has failed to provide evidence justifying the advance or the exact amount of the advance as required by the Kuhn and Worthy cases.   A hearing was set for 9 days later, and we tried to use the time  as an opportunity to settle the claim or at least get the claimant to take a lesser amount before the hearing. 

The claimant would not settle or take less, and it looked likely the JCC would award it. so to save defense costs we agreed to the $2,000 advance in a joint stipulation spelling out how we will recoup the funds.  Then, the claimant attorney dismissed the Motion for the Advance, cancelled the hearing BUT reserved on attorney fees and costs.  As you know under the Longely case, this reservation would toll the Statute of Limitations indefinitely.  So I filed for the JCC to hold a hearing on whether they get a fee.

I argued against the fee advance on several grounds.  First, it was not pled on a PFB.  (However, there are several Motions, such as a Motion to Compel RTP response or a Motion to Enforce where the JCC’s have awarded fees, even though there was no PFB claim for fees).  Secondly, based on the existing caselaw, an advance is not a benefit, it is a loan against future benefits.

The JCC agreed there is no statutory basis for attorney fees for an advance per caselaw.  He also noted it was not on a PFB.   Further, the JCC noted in our response we did not state the claimant was ineligible for the advance, we just requested better documentation.  So we didn’t really deny it, just said we need more information to make a decision, the information that is required by the caselaw.    The JCC decision attached

So, if you get a request for an advance on a PFB, to be safe if you are challenging it, respond that:

“The claimant has failed to provide the documentation to prove the exact amount of the advance needed or a plausible nexus between the need for the advance and the accident.”

And then before 30 days expire from the PFB date, have defense file a Motion to Dismiss for Lack of Specificty on the advance issue.

This way you are not denying an advance, you are saying the claimant failed to prove it.  And then it is very clear no atty fees are due.

________________________________________________________________________________________________

On another note, the claimant’s attorney in the Stahl case (challenging the constitutionality of the entire statute), has now appealed the case to the U.S. Supreme Court.   The Florida Supreme Court, after hearing the oral arguments, declined to decide the case and dismissed it.   It’s pretty unlikely the U.S. Supremes will accept the case…here was the last on it below.

 

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFFICE OF THE JUDGES OF COMPENSATION CLAIMS

1. PETERSBURG DISTRICT OFFICE

John Prim,

Employee/Claimant,

vs.

Southeastern Grocers, LLC,

Employer,

Sedgwick CMS,

Carrier/Servicing Agent.

__________________________________/

OJCC Case No. 16-011022SLR

Accident date: 3/5/2016

Judge: Stephen L. Rosen

FINAL EVIDENTIARY ORDER ON EMPLOYER/CARRIER’S MOTION FOR

DETERMINATION OF FEE ENTITLEMENT AND REQUIRE CLAIMANT TO FILE

VERIFIED MOTION FOR ATTORNEY’S FEES

This Cause came on for hearing before the undersigned Judge of Compensation Claims on August 1, 2016. The subject of the hearing was the Employer/carrier’s motion for determination of fee entitlement and require the claimant to file a verified motion for attorney’s fees. Natalie Adams Esq. was present on behalf of the Claimant and Morgan Indek, Esq. was present on behalf of the Employer/Carrier.

Judge’s Exhibits:

1. Petition for benefits filed May 9, 2016.
2. Response to petition for benefits filed May 10, 2016.
3. Notice of resolution for evidentiary hearing (advance) schedule June 30, 2016, filed June 29, 2016.

Claimant’s Exhibits:

1. Claimant’s motion for $2,000.00 advance filed June 15, 2016, with attachment.
2. Claimant’s response to employer/carrier’s motion for determination of fee entitlement and require claimant to file verified motion for attorney’s fees filed July 22, 2016.

Employer/Carrier’s Exhibits:

1. Response in objection to claimant’s motion for advance filed June 20, 2016.
2. Employer/carrier’s amended response to claimant’s motion for $2,000.00 advance (agreed to provide $2,000.00 advance) filed June 29, 2016.
3. Motion for determination of fee entitlement and require claimant to file verified motion for attorney’s fees filed July 7, 2016.
4. Notice of filing authority and persuasive authority filed July 29, 2016.

After hearing arguments of the parties and otherwise being fully apprised of the facts and applicable law herein, I find that:

1. I have jurisdiction of the subject matter and the parties for this motion.
2. The claimant, John Prim, by and through his attorney, filed a motion for $2,000.00 advance payment of compensation on June 15, 2016. While there was a medical record attached which made the claimant eligible for an advance pursuant to F. S. 440.20(12), the claimant did not list any basis or rationale behind the request for advance or the purpose for which he might use the advance.
3. The employer/carrier filed an objection and response to the request for $2,000.00 on June 20, 2016 advance, basically requesting the claimant to provide rationale for this specific amount of advance. None was provided.
4. However, on June 29, 2016, the employer/carrier file amended response indicating that the employer/carrier agreed to issue a $2,000.00 advance and that the hearing on this issue scheduled for June 30, 2016 be canceled. The claimant filed a notice of resolution of the issue on advance that same day. Neither the motion for advance filed June 15, 2016 nor the notice of resolution regarding the advance filed June 29, 2016 show any time frame that the advance should be paid to the claimant. Also, a recoupment of the advance is contemplated in the amended response.
5. There was no petition for benefits filed regarding payment of advance, and therefore the neither statutory provision or the 60Q rules for payment of compensation is applicable nor was an order entered approving the resolution of advance which would trigger any time frame for payment of the $2,000.00 advance.
6. I find that entitlement to attorney’s fees to the attorney for the claimant should be denied on several grounds. First, I find that the claimant did not properly document adequate justification for the need for the advance. Although the claimant submitted medical evidence that he is eligible for an advance, he failed to establish a plausible nexus as to the reason were necessity for an advance in the amount of $2,000.00. Delta Airlines v. Kuhn, 104 So. 3d 1111 (Fla. 1st DCA 2012).
7. Additionally, I accept the premise in the case of City of Miami v. Mazur, 449 So. 2d 986 (Fla.1st DCA 1984) that there is no statutory basis for awarding a fee for securing an advance. Also, that the employer/carrier did not resist the motion request; it requested better documentation of the need for the amount of the requested advance and paid within an appropriate time frame thereafter.

WHEREFORE, it is determined that the attorney for the claimant is not entitled to

attorney’s fees from the employer/carrier for securing an advance.

DONE AND ORDERED this 2nd day of August, 2016, in St. Petersburg, Pinellas

County, Florida.

Stephen L. Rosen

Judge of Compensation Claims

Division of Administrative Hearings

Stephen L

Rosen

 

Office of the Judges of Compensation Claims

St. Petersburg District Office

501 1st Avenue, North, Suite 300

St. Petersburg, Florida 33701

(727)893-2321

www.fljcc.org

COPIES FURNISHED:

Catherine F. Agacinski, Esquire

wcservice@silveragacinski.com

cfagacinski@aol.com

Morgan A. Indek

ccalderon@eraclides.com

chayes@eraclides.com