PREVAILING PARTY COSTS: Does E/C’s Timely Response To PFB Negate Injured Worker’s Prevailing Party Status?
Jennings v. Habana Health Care, ___ So.3d ___, 41 FLW D17 (Fla. 1st DCA 12-28-15)
In December last year, the Court offered practitioners clarification as to when an injured worker can become a prevailing party for the purpose of taxing reasonable costs against the Employer/Carrier. In the Jennings case, the injured worker requested authorization of an orthopedic evaluation in a PFB which the adjuster received on 09-11-14. As required by statute, see §440.192(4), Florida Statute (2014), the PFB included certification (that was not challenged by the employer or its carrier) that Jennings (or her attorney) had made a good faith effort to resolve the dispute over benefits with the carrier. The next day, the adjuster informed the claimant attorney an appointment had been set for 09-15-14.
The injured worker alleged she was the prevailing party and sought reimbursement of reasonable taxable costs of $44.40 related to filing the PFB. You would think the EC would make a smart business decision and just pay the $44 in costs to avoid the mess. After all, the injured worker had to go to the trouble of filing the PFB in order to get the medical benefit the carrier should have already provided. However, the E/C didn’t reimburse the costs, and instead chose to litigate the issue maintaining no costs were due or owing because the adjuster had timely responded to the PFB. The JCC denied prevailing party costs under F.S. §440.192(8) and §440.34(3) finding that since the E/C responded within 14 days under the first provision, and within 30 days (eliminating attorney fee entitlement) under the second, no fees or costs were due from E/C.
The DCA reversed, noting that neither of the subsections relied upon by the JCC actually pertained to costs, and that entitlement to costs is distinct from entitlement to attorney’s fees. Whether benefits are timely furnished, either under subsection 440.192(8) or under subsection 440.34(3), is irrelevant on the separate question of whether a party prevails, entitling the party to costs. Prevailing party costs are awarded under F.S. §440.34(3) and are available to the party that prevails “in any proceedings.” The most puzzling thing about this decision is why the carrier practiced such bad claims economics. Was it worth all the time and money it paid its own attorney to defend a $44 cost claim by the injured worker?
By Michael J. Winer. Michael Winer is an FWA past president and current board member. You can view his professional website here.