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Langham: Fees on Costs

  • State: Florida

An interesting subject is adjudicated in Bustos v. Nissan Motor Corp.

Judge David Langham

Judge David Langham

The injured worker filed a verified petition for attorneys' fees. This was related to a petition for benefits filed in September 2020 seeking a medical benefit, a small medical mileage reimbursement "and reimbursement of costs in the amount of $6.90 for certified mail of the petition for benefits."

There have been various Florida appellate decisions in recent years regarding the entitlement to reimbursement of litigation costs. One might want to read Coto v. Univision/Sentry Cas. Co. (2019) and Frederick v. Monroe Cty. Sch. Bd. (2012).

In Bustos, the employer/carrier "confirmed compensability of the case, agreed to authorize the follow-up appointment ... timely paid the mileage reimbursement and agreed to reimburse the $6.90 in costs." The petition issues were thus purportedly concluded without resort to significant litigation. The judge noted, "however, the E/C did not actually pay the $6.90 in costs until Nov. 16, 2020, more than 30 days after the petition for benefits."

The claimant sought an award of an attorney fee based upon "the E/C's failure to make payment of the agreed-upon costs within 30 days of the petition for benefits."

Entitlement to such fees was disputed. Arguments against the fee included alleged procedural impediments to the cost reimbursement, including the carrier not having claimant's counsel's "tax ID number;" that there was no "cost reimbursement form ... submitted or approved by the JCC," and that there was no proof that claimant was "the prevailing party." 

The trial judge noted that the employer/carrier "did not pay the $6.90 in costs within 30 days of the petition." Though it claimed that this was caused by the absence of a tax ID number, "the E/C did not request claimant's counsel's tax ID number within 30 days of the petition." The judge rejected the argument that a "reimbursement data sheet" or judicial approval was necessary because eventually, the "E/C paid the $6.90 in costs without requiring" that form or approval. 

The judge analyzed the appropriate method for calculating a reasonable attorney fee payable by the employer/carrier. This included consideration of the claimed "time expended" and the claimant's attestation that a reasonable hourly rate would be $350. The judge described a process of identifying the time specifically related to the $6.90 claim for costs and excluded the time "unrelated to the issue." 

Ultimately, the judge concluded that claimant's counsel "devoted 7.3 hours towards the prosecution of the costs reimbursement claim and 1.0 additional hour for attendance at this hearing." Thus, 8.3 hours invested in the obtention of $6.90.

Notably, however, "the majority of the hours expended were in relation to the prosecution of the attorney's fees and not the $6.90 cost reimbursement claim." The judge concluded that "$300 per hour is a reasonable hourly rate," and awarded "$2,490 in attorney's fees" for obtaining the $6.90 reimbursement. 

This illustrates a reminder that litigation costs are mandatory in Florida workers' compensation. Review of the appellate cases cited above may be of assistance in this regard. It also reminds that time spent proving fee entitlement can be included in the time for which an employer/carrier fee is due.

Notably, in this instance, "the majority" of the $2,490 was related to that proving of fee entitlement. The order illustrates an intriguing aspect of Florida workers' compensation. 

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

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