Some attorneys who represent injured workers have been engaging in a tactic designed to generate attorney’s fees without the employer/carrier becoming aware of this exposure.
The process is initiated by the claimant’s attorney sending a Petition for Benefits (PFB) via certified mail to the employer/carrier (EC) without ever filing the PFB with DOAH. Even though the PFB is never filed, certain Judges of Compensation Claims have ruled that service of a PFB on the EC compels the EC to provide the claimed benefits or face fee exposure, even though the PFB is never filed with DOAH.
Section 440.192(8), Florida Statutes, indicates that within 14 days after the EC’s receipt of a PFB by certified mail, the EC must pay the claimed benefits or file its Response. This statute makes no reference to the PFB being filed with DOAH. The statute discusses only the EC’s receipt of the Petition.
The attorney’s fee statute, Section 440.34(3), Florida Statutes, provides that irrespective of the date when benefits are initially requested, attorney’s fee exposure shall not attach until 30 days after the EC receives the PFB.
Based on these two statutes, some claimant attorneys are sending PFBs to the EC without ever filing the PFB with DOAH. This causes some EC’s to believe that the 30-day timeframe within which to respond does not begin to run until the PFB is filed with DOAH. Certain JCCs have held that fee exposure can attach in 30 days even though the PFB was never filed. The claimants’ bar is engaging in this practice with more regularity.
Analysis
This writer believes that the statute was not created with the intention of drawing a distinction between service of a Petition on the EC and filing of a Petition with DOAH. The statute contemplates that PFBs will be simultaneously served upon the EC when they are filed with DOAH. This writer believes that the statute is imprecise on this issue because this distinction was not envisioned by the Legislature.
Moreover, fees awarded on a PFB that is served but not filed creates a circumstance where the PFB carries legal significance with respect to certain issues, but not others. A PFB that is served on the EC but not filed with DOAH creates attorney’s fee exposure according to some JCCs. When the EC files a Response to the served-but-not-filed PFB, however, DOAH has suggested that filing of the Response is improper. DOAH has indicated that a Response should not be filed if there is no outstanding PFB.
Other questions arise with respect to the legal effect of a served-but-not-filed PFB. Can the EC depose the claimant without incurring attorney’s fee exposure? Can the EC send the claimant for an IME? Can the EC move to dismiss a legally-deficient PFB that has not been filed with DOAH? It is this writer’s opinion that a PFB that is served but not filed should carry the same legal significance as a PFB that is filed. The claimant cannot “cherry pick” claims that he would like filed with DOAH and those that he does not. This may be an issue that must ultimately be resolved by the First DCA, the Chief Judge’s Office, or DOAH.
Practice Tip
We suggest that an EC who receives a PFB respond as though the PFB has been filed with DOAH. The safest, most prudent course of action is to respond in a timely fashion despite the questionable legal significance of a PFB which is served but not filed.
We also suggest that a Response to Petition for Benefits be filed with DOAH. If this is the claimant’s first PFB, there may not be an open case. The EC’s first step would be to secure an OJCC number from DOAH in order to file the Response. Filing the Response with DOAH will protect the EC’s rights by a significant measure by confirming the precise date and time of filing, rather than address timeliness and adequacy of filing solely with Claimant’s counsel.
We also believe that if Responses to Petitions for Benefits are being routinely filed in the absence of a filed Petition, DOAH may invoke rulemaking authority which may compel filing of the PFB simultaneously with service on the EC.
