First DCA Rejects Argument Distinguishing Service from FilingThe First DCA recently rejected an appeal where the claimant argued that service of a Petition for Benefits on an EC compelled the employer/carrier to act, even though the PFB was not filed with DOAH until much later. Elms v. Castle Construction, (Fla. 1st DCA, Oct. 10, 2014). This author tried the case before Judge Sojourner of Lakeland and represented the EC before the First DCA.
In this case, the claimant served a PFB on the EC, asking for provision of certain medical benefits. The claimant did not file the PFB with DOAH, however, until several months later. The EC provided the benefits timely with respect to the date upon which the PFB was filed with DOAH. The claimant argued that the EC owed him an attorney’s fee because the claimed benefits were not provided within 30 days after the PFB was served on the EC.
The claimant argued that service of the PFB was the operative event, and that the date when the PFB was filed with DOAH was irrelevant. The claimant pointed to inconsistent language in the statute regarding service and filing. The EC argued that the statute was last modified prior to electronic filing, and that there was no Legislative intent to draw a distinction between service of a PFB and filing of a PFB.
Fortunately, the First DCA agreed with the EC. Although the First DCA did not write an opinion, it affirmed the JCC’s conclusion that the EC was not obliged to act until the PFB was filed with DOAH. The JCC’s Order, coupled with the First DCA’s Per Curiam Affirmance, can create a compelling argument that a JCC should not accord any legal significance to the date upon which a PFB is served, but should consider only the date upon which the PFB is filed with DOAH.
Approximately one year ago, we warned about the “stealth” PFB that was served but not filed. There have been certain Judges who have awarded fees based on the date of service, irrespective of the date of filing. While a written opinion on this case would have been helpful to clarify the issue, this affirmance of Judge Sojourner’s Order clearly implies that the First DCA is not inclined to entertain the argument that a PFB which is served but not filed compels the EC to act.
This is one of the many ways in which the claimants’ bar is attacking the current version of the fee statute. There are several important cases currently pending before the Florida Supreme Court which could re-introduce hourly attorney’s fees payable by the employer/carrier. These opinions could have a major impact on the current status of the workers’ compensation system. Oral argument in one of the most important cases is scheduled for November 5, 2014.