Prior to the 10/1/03 changes to the W/C law, an Employer/Carrier could argue a reduction in an hourly fee sought by a Claimant attorney for secured benefits if the E/C resolves the litigation quickly.  In fact, the First DCA once commended a lower court for denying an hourly fee to Claimant’s attorney based on the E/C resolution of the claims against it with very little discovery, beyond the Claimant’s deposition.  The idea being that an E/C should not be penalized for doing the right thing, and reducing the amount of litigation.

But, in today’s strict statutory fee schedule climate, under section 440.34, the courts can no longer look into whether the E/C resolved the issue quickly, reducing the litigation process.  The First DCA reinforces this notion in Franco v. SCI.  In that decision, Claimant filed a PFB for permanent total disability benefits in connection with his compensable accident.* 

The E/C agreed and voluntarily accepted Claimant has PTD, however the indemnity checks did not go out until 31 days after the filing of the PFB.  According to the statute, after 30 days pass, a Claimant attorney is entitled to a statutory fee.  At 31 days, I doubt even if the E/C had time to depose the Claimant, let alone a doctor or an expert witness.  Yet, under the strict wording of the 2003 amendments, even though a bare minimal effort was exhuded by the Claimant attorney to secure PTD benefits, he is still entitled to a fee.  (The amount was calculated on the present value of future PTD payments.)

So, to all those Employers and Carriers out there who intend to resolve those pending petitions by authorizing the sought after beneftis, make sure you do it before the 30 days is up.  For the courts will not limit the fee based on your concession to limit litigation.

As the saying goes: “no good deed goes unpunished.”**

*Please note that this case would not apply to “medical only” claims, as section 440.34(7) mandates that Claimant attorney’s fee is capped at $1500 in those petitions.

**Also note that if the Florida Supreme Court decides in the Emma Murray case that hourly fees are back, then the old rule of reducing the fee based on the E/C limiting litigation will likely be reinstated as well.

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