UPDATED! I forgot to include the this link to the video of my oral arguments.  I believe you need Windows Media Player to watch.  Enjoy!

In my last blog entry, I wrote of a pending oral argument for an appeal I was handled.  I did not want to publicly comment on the issue since it was a pending matter before the First DCA.  So, allow me some space to explain what the issues were.

At issue was the amount of a Carrier paid fee to a Claimant attorney where the only efforts to secure any benefits was simply filing a Petition.

In Interstate Brands v. Blanco, for almost 10 years, my client voluntary paid permanent total disability (PTD) benefits to Claimant.  They accepted him PTD before any Petition was filed.  Claimant was paid on an automatic electronic diary, and every January–as the statute mandates–the Carrier updated his payments to increase his supplemental PTD benefits.

In January, 2008, Claimant’s PTD payments fell off the electronic diary.  The only possible explanation was computer error.  The Carrier never intended to temporarily or permanently cut off Claimant’s PTD payments.

In March, 2008, Claimant attorney filed a new Petition for the “past and future PTD benefits.”  The Carrier never responded.  About 6 weeks later, the adjuster noticed the computer error and corrected it immediately.  She also paid penalties and interest, per s. 440.20.

Claimant attorney filed a Verified Fee Petition for securing the PTD benefits.  He wanted a statutory fee for the present value of future PTD benefits.  The present value of future benefits is calculated to be over $500,000!  Therefore, Claimant attorney sought a fee of more than $56,000; for just filing a Petition.

Now, there is precedent for this fact pattern.  In Interior Custom Concepts v. Slovak, the E/C also voluntary picked Claimant up as PTD.  However, some time later, they decided to set up a defense to PTD.   They hired a vocational expert who conducted an assessment and determined Claimant could return to work with restrictions.  They then set up a Functional Capacity Evaluation to determine work restrictions.   Claimant refused to attend the FCE and the E/C notified him that they would suspend his benefits–temporarily–until he submitted to the FCE.

Claimant filed a Petition and the E/C filed a Motion to Compel FCE.  The JCC denied the E/C’s Motion and the E/C reinstated PTD benefits.  Claimant attorney then sought a statutory fee on future PTD benefits.  The JCC agreed and the E/C appealed.  The First DCA reversed because all of the evidence supported the finding that the E/C did not intend to permanently suspend Claimant’s PTD benefits.  Under, s. 440.34, A Claimant attorney must prove what benefits he secured in order for a judge to determine the fee amount. 

In Slovak, the E/C’s intent was tied to what benefits the Claimant attorney secured.  Since the E/C only intended to temporarily suspend, the Court found that the fee should be only calculated on past PTD benefits. 

In my case, Blanco, I argued that while Claimant attorney is entitled to a fee–he filed a Petition and the E/C did not correct the problem until after the 30 days passed–he is not entitled to a fee based on future PTD benefits.  Claimant attorney only secured the past PTD benefits since the E/C’s intent was never even to temporarily suspend the benefits.  It was an accident. 

Claimant attorney argued that since the Petition was for “past and future PTD benefits” and the E/C never responded, he secured future benefits.  Under prior case law, a non-response by an E/C to a Petition is deemed to be a denial.  Therefore, the E/C intended to deny all future PTD benefits.

At oral arguments, I countered that such a position makes no sense.  A non-response (or denial) only proves entitlement to a Claimant attorney fee, not amount.  A Claimant attorney must still prove what benefits he secured so a Judge can determine how much the fee should be.  For Claimant attorney to prove that he secured future PTD benefits, he must show more than just a filed Petition.  He would have to show proactive steps on his part or proactive parts on my client to deny future PTD.  At the fee hearing, the only evidence was the testimony of the adjuster who swore her intent was not to permanently suspend benefits.

I argued that fees under s. 440.34 are really just penalties and incentives for E/C’s to perform their duty under the self-executing nature of Chapter 440.  If the Court were to allow the ruling to stand, then what is the incentive of the E/C to fix the problem if this happens again?  If they were to owe such a large fee based on future benefits based on a computer error, why not just fight it?  Fight it and roll the dice, even though the E/C knows Claimant truly is PTD.  That makes no sense.

As per my last oral argument, it was hard to read the three Judge panel of the First DCA.  But, I hope for a positive outcome.  I think it would reflect the real world implications of Workers’ Compensation that some opinions miss. 

Once I hear from the First DCA, I will post.  Stay tuned. . .

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