Here are a few new cases brought to you by one of our MKRS Law attorneys for our 2015 April Case Law Review.
Cuenca v. Nova Southeastern University/York Risk Services Group, Inc.
Case No. 1D14-3393 (4/9/15)
Facts – In this case the claimant appealed the JCC’s failure to approve an E/C-paid $1,500 medical only fee under Fla. Stat. 440.34(3)(a) and (7). The claimant had filed an initial PFB on 12/5/13 against the correct employer but incorrect carrier requesting reimbursement of prescriptions and authorization of medical care/treatment. On 12/17/13 and 12/30/13, the correct carrier, through its attorney, filed several pleadings which clarified that it was the appropriate servicing agent for the claim. On 2/14/14, the claimant filed a 2nd PFB which listed the correct carrier and requested payment of past medical bills and authorization of ongoing treatment. On 3/4/14, in a response to the PFB, the E/C asserted that the medical bills would be processed when proper billing form was received. And thereafter on 5/1/14, at a mediation, the parties entered into a lump sum settlement agreement for $5,125 inclusive of statutory fees and costs. In addition, the E/C agreed to pay claimant’s attorney a medical only fee of $1,500 and costs of $275 for past benefits secured including resolution of the claim for authorization of medical treatment and payment of medical bills. However, the JCC denied approval of the E/C paid $1,500 fee. In the order denying the fee, the JCC made several findings which included a presumption that the E/C had failed to respond to the 1st PFB because it listed the wrong carrier. In addition, the JCC found that the E/C had timely responded to the second PFB by its response of 3/4/14. Thus, the JCC concluded there was no E/C liability for fees because the E/C had timely accepted the claims. The claimant subsequently filed a verified motion for approval of the E/C-paid $1,500 fee which made several allegations including (1) that the E/C did in fact respond to the 12/5/13 PFB, on 1/13/14, via an undated/unfiled response which asserted it would review the submitted reimbursement requests and would, under separate cover, authorize a one-time-only medical evaluation; (2) that E/C never raised a notice defense relating to the correct servicing agent nor moved to dismiss any PFB filed; and (3) that the E/C did not timely accept/pay the claims because an appointment was not scheduled until 1/20/14, the claimant was not reimbursed for out-of-pocket expenses until 3/4/14, and the 3/4/14 response from E/C did not agree to pay the submitted medical bills – E/C only agreed to “process” the bills. By subsequent order of 7/9/14, the JCC denied the claimant’s motion and saw no basis for a further hearing on the matter.
Issue – Whether the JCC’s grounds for rejecting the $1,500 fee stipulation were supported by the record and no facts were overlooked or ignored.
Outcome – In reversing the JCC’s denial of the $1,500 fee stipulation, and in concluding that several of the JCC’s findings were not supported by the record, the 1st DCA noted that the attorney representing the correct servicing agent had filed a notice of appearance less than 2 weeks after the 1st PFB was filed, did not move to dismiss that PFB or assert a defense based on improper service, and attended the JCC-ordered mediation on that PFB. Thus, per the 1st DCA, there was no record support for the JCC’s presumption that a response to the 1st PFB had not been filed because an incorrect servicing agent was listed. In addition, the 1st DCA indicated there was no record support for the JCC’s finding that the E/C accepted the claims timely. Rather, the record showed that the E/C did not file a response to either PFB within 14 days which – to be considered timely – was required by Fla. Stat. 440.192(8). The 1st DCA also found that even though the benefits were subsequently provided by the E/C, the issue of fee entitlement remained outstanding and entitlement to a fee was established when the E/C thereafter provided the benefits. Thus, because the record did not support the JCC’s grounds for rejecting the fee stipulation, the 1st DCA found it was appropriate to reverse and remand the matter to the JCC.
Coleman v. American Airlines/Sedgwick Claims Management Services
Case No. 1D14-2232 (4/22/15)
Facts – In this case the claimant appealed the JCC’s award of $2,645.70 in taxable costs payable by the claimant to the E/C under Fla. Stat. sec. 440.34(3). Specifically, the claimant challenged the JCC’s award of the $150 cost of the condensed versions of deposition transcripts which was incurred in addition to the cost for the original and one copy (i.e. a third copy of the depositions).
Issue – Whether all of the total costs awarded of $2,645.70 were reasonable and recoverable by the E/C under Florida law.
Outcome – Under Fla. Stat. sec. 440.34(3), a prevailing party is entitled to reimbursement of all reasonable costs. In reviewing a discretionary act, the appellate court should apply the “reasonable test” to determine whether the trial judge abused his discretion. Here, the 1st DCA agreed with the claimant that the costs reasonably necessary to defend the claims would not include the $150 cost of the condensed versions of deposition transcripts which was in addition to the cost of the original and one copy. Thus, finding the JCC had abused his discretion in awarding the $150 cost, the 1st DCA modified the JCC’s order to exclude the $150 in costs for the condensed transcripts.
Urguelles v. El Oasis Cafe/Technology Ins. Co.
Case No. 1D14-5333 (4/15/15)
Facts – In this case, the claimant appealed the JCC’s reduction of a stipulated claimant-paid attorney’s fee to ten percent of the monetary value of past benefits secured.
Issue – Whether the JCC had erred in reducing the stipulated fee amount under the 20/15/10 fee formula (of Fla. Stat. 440.34(1)) based on his interpretation that the first $10,000 in benefits secured, to which the percentages of 20% and 15% would apply, had been “exhausted” with the approval of another attorney’s fee on a lump-sum settlement (which were collected by another attorney altogether).
Outcome – Citing its recent decision of Cortes-Martinez v. Palmetto Vegetable Co., 40 Fla. L. Weekly D609 (Fla. 1st DCA Mar. 10, 2015), the 1st DCA held that each separate and distinct attorney’s fee is subject to the 20/15/10 formula. Thus, because the JCC’s reduction was based on an incorrect interpretation of the application of the 20/15/10 formula, the JCC’s decision was reversed and remanded for entry of an order approving the stipulated claimant-paid attorney’s fee.