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Langham: Compelling Florida Fee Petitions

  • State: Florida
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The Florida First District Court of Appeal in September 2016 rendered Law Offices of William Souza v. Truly Nolan. It is an interesting analysis that has answered a few questions, but perhaps also left some curiosity in its wake.

Judge David Langham

Judge David Langham

The case arose when the employer/carrier asked the judge of compensation claims to compel the claimant's attorney to file a verified motion for attorney's fees and costs. This is an authority found in  Rule 60Q-6.124(5). The judge granted the request; claimant's counsel appealed.

The court concluded that the judge "lacked subject matter jurisdiction to grant the E/SA’s motion to compel." Subject matter jurisdiction refers to the authority over the claim.

The court noted that the claimant had previously settled his workers' compensation case in 2008. There had been some dispute about that settlement, and the judge held a hearing, concluding that the case was settled, and all of the pending petitions were dismissed at that time.

The claimant's attorney was troubled by that decision and appealed those conclusions. In 2009, the court affirmed. 

When the workers' case was settled in 2008, all of the pending petitions had been dismissed. The court noted that "jurisdiction was not reserved on any claim." Reservation of jurisdiction is a procedural tool used when a complaint or claim is dismissed, but the adjudicator retains some specific authority over some aspect(s). In that instance, the dismissal is partial rather than complete. It is somewhat common in Florida for a workers' compensation dismissal to include a reservation of jurisdiction over issues such as attorney fees or costs. 

In 2015, six years after the District Court's affirmance of the judge's order dismissing all petitions, the employer/carrier (E/C) filed a motion to compel the filing of a verified motion for attorney's fees pursuant to Rule 60Q-6.124(5), F.A.C. Apparently, the E/C either believed that some outstanding fee issues either existed or were arguable.

The motion was granted, but claimant's counsel objected through a motion for rehearing, alleging that the "JCC had no authority to compel the filing of a verified motion for attorney’s fees in the absence of a pending PFB." The motion for rehearing was denied. 

This set of circumstances thus sets an interesting dispute. The E/C seeks to achieve closure of any remaining claims in the case, and consequently clarification of whether any allegedly remain.

Following the settlement of the case, the only likely such remaining claims would be regarding fees owed for some previously litigated benefits. In some instances, the E/C might wait for counsel to file for such fees. In others, the E/C might seek to spur that filing with a motion. In this instance, the E/C apparently waited for action for about six years before seeking relief. 

The court in 2016 reiterated its conclusion that "the dismissal of all PFBs divests the JCC of jurisdiction." Because there were no pending petitions, "the JCC had no jurisdiction over any particular claim, including a claim for entitlement to attorney’s fees, because all PFBs were dismissed with no reservation of jurisdiction."

In the absence of pending petitions, "there is no justiciable controversy before the JCC about the parties’ rights or obligations under the Workers’ Compensation Act." The court explained that Rule 60Q-6.124(5) F.A.C. can apply only in cases in which there is a "pending claim for attorney’s fees via a PFB." Such could be pending because the petition itself remains pending or because jurisdiction regarding fees had been reserved for future determination when some petition(s) was dismissed.

The court explained in Truly Nolan that because there was no pending PFB and no reservation of jurisdiction, there was no outstanding claim for fees.

Rule 60Q-6.124(5) F.A.C. is a procedural rule and affords the judge of compensation claims authority to manage the docket of pending claims. It is not a grant of authority for a judge to compel a party to file a claim. The court was clear that the party "cannot be forced to make a claim, under either the statute or the rule, if he does not wish to do so." And, in the absence of a claim, the judge of compensation claims lacks jurisdiction. 

Some would perhaps argue that there is thus a friction point apparent in Florida's workers' compensation system. The court has previously ruled that a pending claim for attorney fees regarding some other claims or benefits will toll the statute of limitations. Thus, from the perspective of an E/C, any potential outstanding claim for attorney's fees may require that a claim remain open and monitored for activity, perhaps indefinitely. They might advocate that closure of such claims is beneficial in bringing certainty.

Others would perhaps argue that determining the value of various obtained benefits can require time. After some course of care or treatment is approved, it may not be immediately clear how long such care will continue, or what its value might ultimately be. In the Florida system, there has historically been a statutory relationship between the value of those obtained benefits and the attorney fee calculations. How relevant that value is to the fee amount may be debated, but some would argue that the value has at least some relevance. 

Thus, each side in a dispute over fees may have valid arguments that the time is ripe, or not, for determining fees. The process depends either upon the claimant's attorney electing to file a verified motion for such fees, or the employer/carrier moving to compel such filing.

The analysis in either event must then be whether the Office of Judges of Compensation Claims has authority ("jurisdiction") to decide the fee issue. That decision is dependent upon two questions: (1) is there a pending petition that provides jurisdiction, and if not (2) whether there was some reservation of jurisdiction when some past petition was dismissed.

The court's Truly Nolan decision in September 2016 clarifies that the answer to these two questions should provide both the claimant and the employer/carrier with understanding. In its wake, some have questioned the "point" or "purpose" of Rule 60Q-6.124(5) F.A.C. Simply stated, if such petition or reservation exists, a judge may compel filing and resolution of the dispute under this rule. If not, the OJCC has no jurisdiction, and since no such petition or reservation exits, perhaps there is no reason for the E/C to maintain an "open" claims file. When there is no authority, there is likewise no pleading affecting the claim's statute of limitations. 

Either way, the Rule 60Q-6.124(5) F.A.C. process perhaps provides both sides with answers. There is either a dispute to be adjudicated, or there is not. For those in doubt, perhaps the  60Q-6.124(5) motion will provide answers.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column was reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.

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