I don’t know if the pending Emma Murray appeal will have future effect on this, but the First DCA, in Guckenberg v. Seminole County, affirmed section 440.34(3), specifically the portion that awards attorney fees and costs to any prevailing party. 

440.34(3) states:

If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees.

The facts in Guckenberg are withheld, but Claimant argued that the award of $5,561.81 for costs to the E/C should be reversed because the JCC did not reserve jurisdiction at the time of his order.  The Court swatted this done, finding that the JCC has expressed jurisdiction in the statute language above. 

Alternatively, the Claimant argued the statute was against public policy since Claimant’s petition for benefits was not “fraudulent or frivolous.”  Once again the First DCA swatted this down on legislative intent.  The language clearly states the JCC may tax the costs of the proceeding “against the nonprevailing party.”  If the legislature wanted only taxable costs to be paid by the E/C, then it would have said so, as clearly is the case in section 440.34(5).  

And I think this makes sense.  Clearly, by mentioning any party and just costs, the legislature wanted prevailing E/C’s the opportunity to collect costs.  The intent was to curb questionable–but not necessarily frivolous–petitions.

This is great news for E/C’s who totally prevail, but what about hearings that include multi-claim petitions?  What if the E/C wins one claim and the Claimant wins the other?  Do the attorney costs wash each other out?  By not delving into the facts, the First DCA has left another question to this provision of 440.  But overall, this is a great case for E/C’s and a case that should give Claimants pause before they file a petition for benefits.

 

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