Summary
The Florida First District Court of Appeal reviewed a workers’ compensation fee award involving multiple petitions for benefits. The court held that the July petition could not be dismissed based on an alleged lack of good-faith presuit efforts where the petition contained the required certification, and that time spent defending the dismissal should be included in the fee calculation. The court reversed the fee award based on the November petition because the employer/carrier sufficiently authorized the requested psychiatric care within thirty days, affirmed the hourly-rate determination, and remanded for recalculation.
Topics
Practice areas
Questions Presented
- Whether the July 2010 petition for benefits complied with section 440.192(4), Florida Statutes, based on the petition's certification that the claimant or her attorney had made a good-faith effort to resolve the dispute.
- Whether the Judge of Compensation Claims could independently investigate or go behind counsel's good-faith representations in the petition and dismiss the petition on that basis.
- Whether the Employer/Carrier complied with the procedural requirements for seeking sanctions under Florida Administrative Code Rule 60Q-6.125.
- Whether attorney's fees based on benefits obtained through the November 2010 petition attached when the Employer/Carrier sent a letter to a physician scheduling service within thirty days of receiving the petition.
- Whether the claimant was entitled to attorney's fees for time spent opposing the motion to dismiss the July petition.
- Whether competent evidence supported the hourly rate used to calculate the fee award.
Holdings
- The Judge of Compensation Claims erred in dismissing the July petition because section 440.192 does not independently authorize the judge to go behind counsel's representations that a good-faith effort was made to resolve the dispute.
- Because dismissal of the July petition was erroneous, the fee award improperly excluded hours spent opposing the motion to dismiss, and the fee award had to be recalculated to include those hours.
- Attorney's fees based on the November petition did not attach because the Employer/Carrier sufficiently established authorization within thirty days by sending a letter to a physician scheduling service and indicating willingness to authorize any physician who agreed to undertake the work.
- The Judge of Compensation Claims' finding concerning the reasonable hourly fee rate was affirmed.
Key quotations
“section 440.192 does not independently give the JCC authority to “go behind” a counsel’s representations of good faith effort to resolve the dispute in a PFB” (178)
“It follows that the JCC erred in excluding from the fees the hours spent on the motion to dismiss; therefore, we reverse the JCC’s order in this respect.” (178)
“Here, as in Jennings, the E/C sufficiently established authorization as of the date of the letter, by casting a broad net to a group of physicians, indicating willingness to authorize whichever agreed to undertake the work.” (179)
Factual background
The claimant suffered a compensable workplace accident in October 2008, received medical care, and returned to work in the same capacity until moving to Orlando in April 2010. She filed three petitions for benefits, each including a claim for attorney's fees. In response to the November and January petitions, the Employer/Carrier provided the requested benefits but did not pay attorney's fees; the dispute concerned whether fees attached and what amount was reasonable.
Procedural history
The claimant filed three petitions for benefits in July 2010, November 2010, and January 2011. The Judge of Compensation Claims dismissed the July petition without prejudice, later treated it as amended by the January petition, awarded attorney's fees based on benefits obtained, excluded time spent defending the dismissal motion, and applied a lower hourly rate than requested. The Employer/Carrier appealed the fee rulings and the claimant cross-appealed the dismissal-related and hourly-rate rulings.
Remand instructions
Recalculate the total attorney's fee amount, including compensable time spent opposing the motion to dismiss the July petition and excluding the fee award based on the November petition.