Workers’ Compensation Case Law Update: Attorney Fees – 30 Calendar Days

February 26, 2020 by on News

In the recent case of Zenith Ins. Co. v. Cruz, No. 1D19-1141, 2020 (1st DCA Feb. 12, 2020), the First DCA clarified that the Rule 60Q-6.109, concerning computation of time, does not extend the 30-day period for avoiding fee attachment to the “next regular working day” if the 30th day falls on a weekend or holiday.

In Cruz, the claimant filed a PFB electronically after five o'clock p.m. on August 22, 2018. The E/C acknowledged receipt after six that night, and the parties agreed that the PFB was filed the next day, on August 23rd, and that the thirtieth day after that was September 22, 2018 (a Saturday). The E/C filed a response on August 29th denying the entire claim. On Monday, September 24th, the E/C filed another response in which they rescinded their denial, agreed to provide all requested benefits, and denied fee entitlement. The E/C also issued a check for indemnity benefits that same day.

After the claimant filed a verified petition for attorney’s fees, the E/C responded by denying fee entitlement and relied on rule 60Q-6.109, which provides that if “any act required or allowed to be done falls on a holiday or weekend day, performance of the act is required to be done on the next regular working day.” The E/C argued that based on the agreed filing (and receipt) date of August 23rd, the 30th day thereafter was September 22, a Saturday and, thus, the rescission they filed on the following Monday (the 24th) was timely — thereby preventing fee attachment.

The Court disagreed. It reiterated that section 440.34, which permits E/C paid fees for successful prosecution of PFBs in subsection (3)(b), sets a 30-day grace period of sorts that requires some part of the 'successful prosecution' to occur after thirty days. In other words, if the petition fully succeeds before the thirty days run, fees do not attach.

The Court further explained that under Rules 60Q-6.108(1)(e), (2)(e) and (3), e-filed documents received by the OJCC after 5 p.m. are deemed filed the next day, PFBs e-served through the OJCC system are deemed received when served, and that service by email after 5 p.m. is deemed to have been made on the next business day. However, regarding the computation of the 30th day for purposes of fee attachment, the Court pointed out that 440.34 used the unmodified term “days” rather than “business days.” It ultimately held that “unless the Legislature specifies that the time period that must expire before a right attaches is to be calculated using "business" rather than "calendar" days, or is otherwise subject to a procedural rule that extends that period, the rule cannot operate to do so.”

Therefore, Carriers responding to PFBs must do so and provide the benefits within 30 calendar days of receipt of the PFB in order to avoid attorney fees.

Blake J. Hood
Direct: 904.493.3757

Comprehensive Services

Many cases overlap several areas of law. As a full service law firm, we are able to recognize how one legal discipline impacts another. We work as a team on complex issues that require knowledge of a variety of state and federal laws. This multi-disciplinary approach allows clients to receive the large-firm advantage of access to multiple attorneys in a wide scope of practice areas as well as the hands-on customer service offered by a boutique law firm. In addition to civil litigation, employment law, workers’ compensation defense, commercial law, construction law and appeals, our firm also handles professional liability claims.

Our bilingual staff is available to assist with immigration matters, including consular and removal defenses.