07-1287 HOWARD FRANCO v. SCI AT THE PALMER CLUB AT PRESTANCIA and ZURICH NORTH AMERICA

State: Florida

Court: Florida First District Court

Docket No: 07-1287

Case Date: 08/27/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA HOWARD FRANCO, Appellant, v. SCI AT THE PALMER CLUB AT PRESTANCIA and ZURICH NORTH AMERICA, Appellees. _______________________________/ Opinion filed August 27, 2008. An appeal from an order of the Judge of Compensation Claims. Diane B. Beck, Judge. Keith A. Mann, Sarasota, and Bill McCabe, Longwood, for Appellant. Cindy R. Galen of Eraclides, Johns, Hall, Gelman, Johannessen & Kempner, L.L.P., Sarasota, for Appellees. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D07-1287

PER CURIAM. At issue in this workers' compensation case is whether claimant's attorney is entitled to be paid an attorney fee and costs by the employer/servicing agent (e/sa) under section 440.34(3)(b), Florida Statutes (2006). We find the Judge of Compensation Claims erred in denying entitlement to a fee and reverse and remand.

In determining whether claimant was entitled to an attorney fee from the e/sa, the JCC correctly found the petition was accepted when payment was made, not when forms indicating the acceptance of PTD were completed. See Amerimark, Inc. v. Hutchinson, 882 So. 2d 1114, 1115 (Fla. 1st DCA 2004). The JCC then addressed whether claimant's attorney met the burden of establishing entitlement under section 440.34(3), Florida Statutes (2006), which provides that a fee is due when the following circumstances exist: the "carrier files a response to petition denying benefits;" there is a "successful prosecution of the petition;" and a period of 30 days elapses from "the date the carrier . . . receives the petition." When applying this section, the JCC relied on Zabik v. Palm Beach County School District, 901 So. 2d 887 (Fla. 1st DCA 2005), to find the claim was never controverted and claimant's attorney did not successfully prosecute the petition because "more than minimal effort to procure benefits for the claimant" was necessary. The JCC's reliance is misplaced. Section 440.34, Florida Statutes, has been amended since 2000 when Zabik's accident occurred. The 2003 amendments removed the discretionary factors in section 440.34(1), Florida Statutes (2000). See Ch. 2003-412,

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