41
Fla. L. Weekly D2463cTop of Form

Workers’
compensation — Attorney’s fees — Employer/carrier is not liable for
attorney’s fees under section 440.34(3)(b), Florida Statutes, if the
employer/carrier accepts responsibility for medical expenses within thirty days
after the employer/carrier receives the petition for benefits but does not
actually pay medical bills until after the thirty-day period

VINCENT
SANSONE, Appellant, v. FRANK CRUM/FRANK WINSTON CRUM INSURANCE, INC.,
Appellees. 1st District. Case No. 1D15-5116. Opinion filed November 2, 2016. An
appeal from an order of the Judge of Compensation Claims. Mary A. D’Ambrosio,
Judge. Date of Accident: January 14, 2015. Counsel: Kimberly A. Hill of
Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant. William H. Rogner and
Paul L. Luger, Winter Park, for Appellees.

(WINSOR,
J.) This appeal is about attorney’s fees. Under section 440.34(3)(b), Florida
Statutes (2014), successful claimants can recover attorney’s fees from a
carrier or employer in certain circumstances. But the statute includes a grace
period, providing that “attorney’s fees shall not attach” until thirty days
after the carrier or employer receives the petition for benefits. The question
we address is what happens if the carrier or employer accepts responsibility
for medical expenses within thirty days but does not actually pay the medical
bills until after thirty days. We hold that so long as the carrier or employer
accepts responsibility for medical expenses within the thirty-day grace period,
it is not liable under section 440.34(3)(b) for fees associated with those
benefits. We therefore affirm the order denying fees.

Facts
and Procedural History

Vincent
Sansone suffered a workplace injury when he fell from a scaffold. After the
employer/carrier initially denied compensability, Sansone retained counsel and
filed a petition seeking disability payments, payment of an outstanding
hospital bill, and attorney’s fees. Within thirty days of receiving the
petition, the employer/carrier rescinded its denial, paid the disability
benefits, and accepted responsibility for paying the hospital bill. A few weeks
later, the employer paid the hospital bill.

Sansone’s
attorney then filed a separate petition for attorney’s fees, asserting that
“[a]s a result of our efforts, we obtained for [Sansone] the payment of the
hospital bill.” The employer/carrier objected, arguing that the statutory grace
period precluded fees because the employer/carrier accepted responsibility
within thirty days of receiving the petition for benefits. The judge of
compensation claims denied the fee petition, and Sansone appeals. Because this
appeal turns on pure issues of law, our review is de novo. See Airey v.
Wal-Mart/Sedgwick, 24 So. 3d 1264, 1265 (Fla. 1st DCA 2009).

Analysis

Attorney’s
fees under section 440.34(3)(b) require the “successful prosecution of the
petition,” but fees cannot attach until thirty days after the employer receives
the petition. § 440.34, Fla. Stat.; see also Neville v. JC Penney
Corp., 130 So. 3d 235, 235 (Fla. 1st DCA 2013); Franco v. SCI at Palmer
Club at Prestancia, 989 So. 2d 709, 710 (Fla. 1st DCA 2008). Therefore, an
award under section 440.34(3)(b) 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. Cf. Franco, 989
So. 2d at 710 (“Because more than 30 days elapsed from the date the e/sa received
the petition and claimant successfully achieved acceptance and payment of the
claim, all of the statutory requirements of section 440.34(3), Florida Statutes
(2006), have been met.”). The question here, then, is whether Sansone’s
petition finally succeeded when the employer accepted responsibility for the
hospital bill (which was before the thirty days ran) or when the employer
actually paid the hospital bill (which was after).

Sansone
relies on this court’s decisions holding that “successful prosecution” under
section 440.34(3) is not achieved until there has been acceptance and
payment. See, e.g., Franco, 989 So. 2d at 710; McDonald’s
Rest. #7160 v. Montes, 736 So. 2d 768, 769 (Fla. 1st DCA 1999). And to be
sure, we have said that “timeliness of payment of benefits is determined not by
the date on which the E/C notifies a claimant’s attorney that the claim is
accepted and benefits will be paid, but by ‘the date checks of payment are
placed in the mail.’ ” Williams v. State Dep’t of Corr./Div. of Risk Mgmt.,
97 So. 3d 923, 926 (Fla. 1st DCA 2012) (quoting Amerimark, Inc. v.
Hutchinson, 882 So. 2d 1114, 1115 (Fla. 1st DCA 2004)). But those cases
addressed claims for benefits payable directly to claimants. The payment at
issue here was to the hospital — not to Sansone himself.1

The
actual benefit Sansone received was not the employer/carrier’s payment to the
hospital; it was his being relieved of any obligation to pay the hospital
himself. Sansone became “insulated from financial responsibility” for the
hospital bill after the employer/carrier accepted responsibility. See Bergstein
v. Palm Beach Cty. Sch. Bd., 97 So. 3d 878, 879 (Fla. 1st DCA 2012); see
also § 440.13(3)(g), (13)(a), Fla. Stat. (2014). At that point, when or
whether the employer/carrier actually paid the bill became immaterial to
Sansone; it was then only a matter between the hospital and the
employer/carrier.2

Conclusion

When
it comes to medical benefits, a claimant’s successful prosecution ends when the
carrier or employer accepts responsibility, regardless of when the carrier or
employer actually pays the medical providers. In this case, that happened
within thirty days after the employer/carrier received the petition for
benefits, so Sansone’s attorney’s fee petition was properly denied.

AFFIRMED.
(B.L. THOMAS and WETHERELL, JJ., CONCUR.)

__________________

1Sansone
also sought indemnity benefits, which the employer/carrier actually paid before
the thirty days ran. Those benefits are not at issue here.

2Although
not necessary for resolution of this appeal, we note Sansone’s position — that
the date of payment controls — would mean in some instances fee entitlement
could turn on medical providers’ billing practices. In this case, the
employer/carrier had the bill in time to pay it within the thirty days. But in
another case, a carrier or employer might not even receive the bill until after
the thirty days has run.

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