Shannon v. Cheney Brothers, Inc.
37 FLW D2302
Employer/carrier took the claimant's deposition prior to the institution of any claim or Petition for Benefits as permitted by Section 440.30, Florida Statutes. The claimant's attorney attended the deposition and in accordance with Section 440.30, Florida Statutes, filed a request for the payment of a reasonable attorney's fee for such attendance. The employer/carrier did not dispute the claimant's attorney's entitlement to a fee but did dispute the amount of the requested fees. As a part of determining the amount of a fee, the employer/carrier took the claimant's deposition. After attending the second deposition, the claimant's attorney filed an amendment to his motion for fees requesting fees for attending the second deposition related to determining the amount of the fee. Also, the claimant's attorney requested payment of expert witness fees for testifying in regards to the amount of the fee. JCC denied fees to the claimant's attorney for attending his own deposition but awarded fees for attending the claimant's deposition.
Since the denial of attorney's fees payable to the claimant's attorney for his attendance at the second deposition was predicated on the JCC's interpretation of the law, not discretionary factors, the standard of review is de novo.
On appeal, court determined that claimant's attorney was entitled to a fee for attending the second deposition related to the amount of attorney's fees payable. The taking of the claimant's attorney's deposition for the purpose of determining a proper fee was related to the taking of the deposition of the claimant prior to the filing of a claim. See Section 440.30, Florida Statutes (2010). Court determined that claimant's attorney's motion to collect attorney's fee due under the authority of Section 440.30, Florida Statutes, is not a claim and therefore, the deposition was taken prior to the filing of a claim entitling the claimant's attorney to a fee for attending his own deposition. A "claim" as used in Section 440.30, Florida Statutes, is properly construed as the filing of a petition for benefits under Section 440.192, Florida Statutes.