New Decision As To Prevailing Party Can Be "Costly" To Employer/Carriers
March 9, 2016 by Patrick W. Luna, Associate
Entitlement to attorney's fees and costs in workers' compensation claims is often evaluated based on the timely provision of benefits. However, in Jennings v. Habana Health Care Center, (2015 WL 9438007), the First DCA ruled that the issue of timeliness is irrelevant in addressing entitlement to costs, as opposed to fees. The result is that an employer/carrier may have to pay litigation costs to the claimant if the benefits are not provided until after a Petition for Benefits has been filed, even if the benefits are provided before the 30 day period related to fees.
In Jennings, the claimant suffered a work injury on September 2, 2014. The employer authorized and provided medical care with a PCP that same day. The PCP diagnosed a shoulder fracture and referred the claimant for orthopedic evaluation. On September 9, 2014, the claimant filed a Petition for Benefits seeking authorization of an orthopedic evaluation. The Petition was received by the carrier on September 11, 2014, and on September 12, 2014, the carrier notified the claimant's attorney of an appointment set with Dr. Greene, an orthopedist, on September 15, 2014.
The JCC found that the claimant was not entitled to costs as she was not the prevailing party, and because the employer/carrier responded timely pursuant to F.S. 440.192(8) & 440.34(3)(d). F.S. 440.192(8) provides that an employer/carrier must provide the benefits requested in a Petition or shall file a response to the PFB within 14 days upon receipt. F.S. 440.34(3)(d) provides that employer/carrier paid attorney's fees are due when benefits are provided more than 30 days from the receipt of the Petition.
On appeal, the First DCA found that the JCC incorrectly applied the statutory provisions, because F.S. 440.192(8) & 440.34(3)(d) do not apply to costs. Rather, the Court pointed out these portions of the statute relate to attorney's fees only and make no mention of costs. As such, these statutory provisions are irrelevant in determining the separate question of whether a party prevails, which entitles the party to costs.
Rather, the First DCA held that any party who prevails is entitled to an award of costs, irrespective of time frame considerations present in other portions of the statute. The Court cited another portion F.S. 440.34(3), which provides "[i]f any party should prevail in any proceeding before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceeding, not to include attorney's fees." The Court found that the claimant was the prevailing party based on the record and reversed with instructions to award litigation costs.
Given the First DCA's holding in Jennings, there are several implications for general claims handling. First, an informal request for benefits, written or verbal, should now be treated as a Petition for Benefits in order to avoid exposure for prevailing party costs, even if they may be minimal. To further protect against this type of exposure, it will be important to keep a record of when a request was received, when a response was provided, the substance of the response, and any other communications with the claimant/claimant's attorney regarding the requested benefit.
Second, the Court in Jennings specifically called attention to the certification included with all Petitions that the claimant has made a good faith effort to resolve the dispute prior to filing, and that the employer/carrier did not challenge this certification. It will now be important to investigate this issue promptly and challenge the Petition on this basis and file a Motion to Dismiss within 30 days of receipt. There may be other methods available for dismissing a Petition, such as lack of specificity, but the Court specifically addressed the certification clause in the instant case.
Finally, the specific name of the doctor being authorized needs to be provided to the claimant/claimant's attorney in response to any and all requests for authorization of a physician. Otherwise, the provision of the benefit could be deemed untimely, as the Court cited prior decisions that held medical benefits are not considered furnished until the employer/carrier advises the claimant of the selection of a specific physician. Prior to this decision, the requirement that a specific physician's name be provided to the claimant/claimant's attorney has been applied only in situations involving timely selection of a one-time change physician. However, it now appears a specific physician's name must be provided any time treatment with a physician is requested for the benefit to be considered provided.
Jennings is in stark contrast to the common train of thought regarding entitlement to costs for prevailing parties. While the costs involved in this case, and in similar factual scenarios, would likely be minimal, there may be scenarios where exposure could be much more significant. As such, there are measures that can and should be taken to limit any such exposure as much as possible. If we can assist with these issues, please contact us.
Patrick W. Luna, Associate