07-2409 CTL DISTRIBUTION, INC. and GALLAGHER BASSETT SERVICES, INC. v. STEVEN WOOD

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State: Florida

Court: Florida First District Court

Docket No: 07-2409

Case Date: 04/21/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA CTL DISTRIBUTION, INC. and GALLAGHER BASSETT SERVICES, INC., Appellants, v. STEVEN WOOD, Appellee. ___________________________/ Opinion filed April 21, 2008. An appeal from an order of the Judge of Compensation Claims. Mark H. Hofstad, Judge. Kevin G. Malchow and Keef F. Owens of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellants. Raymond F. Ayres, II, Lakeland and Bill McCabe, Longwood, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D07-2409

BENTON, J. At issue on this appeal is a workers' compensation claimant's entitlement under section 440.34(3)(b), Florida Statutes (1999), to attorney's fees at his employer's expense, where the employer filed no pleading in response to his petition for benefits but paid all benefits then due and owing within fourteen days of the petition's filing.

I. Injured while working for CTL Distribution, Inc. ("CTL"), on September 24, 1999, Steven Wood sought and received permanent total disability benefits from his employer and its servicing agent, Gallagher Bassett Services, Inc. When Mr. Wood turned 65 on September 15, 2002, he became entitled to supplemental benefits as well as permanent total disability benefits. See generally Scott v. Mohawk Canoes, 730 So. 2d 731, 732 (Fla. 1st DCA 1999). Because the supplemental (but not the underlying permanent total disability) benefits went unpaid, a lawyer filed a petition for benefits seeking supplemental benefits on Mr. Wood's behalf. Filed June 14, 2005, and received by CTL's servicing agent two days later, the petition sought "Supplemental Permanent Total Disability benefits from 09/15/2002 as the claimant turned 65 years old on that date." The petition did not specifically ask for disability payments to the present "and continuing" or for any other future benefits. On June 28, 2005, CTL's servicing agent paid Mr. Wood more than $15,000, representing all supplemental benefits ripe, due and owing at the time the petition for benefits was filed (and through July 1, 2005), together with all related penalties and interest. See Amerimark, Inc. v. Hutchinson, 882 So. 2d 1114, 1115 (Fla. 1st DCA 2004) (holding payment of a claim for benefits occurs on the date that a check is 2

placed in the mail). Mr. Wood concedes the payment made on June 28, 2005, was full payment and that no attorney's fee is owed on account of it. II. The next four biweekly checks Mr. Wood received (for the period July 2, 2005, through August 26, 2005) paid him permanent total disability benefits in full, but did not include supplemental permanent total disability benefits. Not until August 31, 2005, when CTL and its servicing agent (on their own initiative) corrected the underpayments,1 did the checks they sent begin covering both permanent total disability and supplemental permanent total disability benefits. Regularly thereafter checks to Mr. Wood paid both permanent total disability and supplemental permanent total disability benefits in full as they came due. On September 21, 2006, Mr. Wood's attorney filed a petition for attorney's fees seeking a fee for securing supplemental permanent total disability benefits. In response, CTL and its servicing agent contended claimant's attorney was not entitled to a fee because they had timely paid all benefits that were ripe, due, and owing at the time claimant filed his June 14, 2005 petition, and did so less than 14 days after the

The judge of compensation claims found that the supplemental benefits for the period between July 2, 2005, and August 26, 2005, totaled $839.04. The supplemental benefits for this period and related penalties and interest are not themselves at issue in this proceeding. 3

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petition was received. The ensuing underpayments in July and August of 2005 had also been remedied, they contended, more than a year before the second petition was filed on September 21, 2006. After a hearing on claimant's second petition,2 the judge of compensation claims entered the final order under review, awarding attorney's fees on account of the late payment of supplemental permanent total disability benefits for the period July 2, 2005, to August 26, 2005. At the hearing, the parties agreed that the servicing agent discovered and corrected the final four biweekly checks' insufficiencies itself, without

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