Workers’
compensation — Attorney’s fees — Late payment of temporary disability
benefits — Presumption of mailing — Where claimant received benefits three
months after they were due and two months after petition for benefits was
received because earlier issued checks went missing and were never being
received by claimant, it was error for judge of compensation claims to deny
claimant award of attorney’s fees and costs on basis of rebuttable presumption
of mailing, which provides that mail properly addressed, stamped, and mailed
was received by the addressee — JCC improperly used a fault-based analysis to
find that claimant did not receive the earlier-mailed checks through no fault
of the adjuster or carrier

IVAN PALMA, Appellant, v. AMERICAN
AIRLINES and SEDGWICK CMS, Appellees. 1st District. Case No. 1D16-5651. Opinion
filed November 15, 2017. An appeal from an order of Judge of Compensation
Claims. Ralph J. Humphries, Judge. Date of Accident: September 17, 2013. Counsel:
Toni L. Villaverde of Toni L. Villaverde, PLLC, Coral Gables, for Appellant.
Clinton C. Lyons of Moran Kidd Lyons Johnson, P.A., Orlando, for Appellees.

(PER CURIAM.) In this workers’
compensation case, Claimant appeals an order of the Judge of Compensation
Claims (JCC) denying entitlement to attorney’s fees and costs. For the reasons
below, we reverse.

Claimant injured his right hand
hooking up carts while working on luggage for Employer American Airlines. The
Employer/Carrier (E/C) accepted the injury as compensable. When the temporary
disability benefits Claimant expected did not arrive, Claimant filed a petition
for benefits asking for them, as well as for penalties, interest, attorney’s
fees, and costs. The petition for benefits was received by the E/C on February
21, 2014 (the day after it was filed). Three days later, the E/C filed a
response alleging that those benefits had been paid. Claimant finally received
checks for the benefits on April 22, 2014. In May 2014, Claimant filed a Notice
of Resolution of Issues, stating that the claim for temporary disability
benefits had been satisfied, but asking for reservation of jurisdiction over
the claims for attorney’s fees and costs.

The disputed periods of benefits
were January 8-9 and January 14-27. The adjuster testified that she issued a
check for the first period on January 13 and issued the check for the second
period on January 21. Both were returned as undeliverable, the first on January
29 and the second on February 4. In response, the adjuster confirmed the
address and re-mailed the checks, the first on January 30 and the second on
February 4. These two checks apparently went missing.

The adjuster testified that she did
not know until April 14, 2014, that the two re-mailed checks had not been delivered
to Claimant.1 The adjuster testified that she then
requested a “stop pay” on the two missing checks and that new checks were
reissued to Claimant on April 22, 2014, to the same address. (The new checks
were generated by the E/C and received by Claimant on the same day.) The
adjuster added that the new checks were sent by a computer in “the same way for
all checks issued” by the E/C.

Claimant argued that attorney’s fees
and costs were due because the new checks, which were the only checks Claimant
received for those periods of benefits, were not generated until April 22, 2014
— three months after they were due and two months after the petition for
benefits was received — and that the E/C should have investigated because it
was put on notice of delivery problems. The JCC denied entitlement, finding the
E/C timely paid the benefits. We review the ruling de novo because Claimant
does not challenge the findings of fact, but argues that the JCC erred as a
matter of law in considering the mailing dates of the checks Claimant never
received.

E/C-paid attorney’s fees are due
“when the following circumstances exist: The ‘carrier files a response to
petition denying benefits;’ there is a ‘successful prosecution of the
petition;’ and [before the benefit is provided] a period of 30 days elapses
from ‘the date the carrier . . . receives the petition.’ ” Franco v. SCI at
Palmer Club at Prestancia, 989 So. 2d 709, 710 (Fla. 1st DCA 2008); see
generally § 440.34, Fla. Stat. (2013). Case law explains how to determine
the date a benefit is provided when the benefit is transfer of monies by check
to a claimant:

[T]imeliness
of payment of benefits is determined not by the date of 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.” See Amerimark,
Inc. v. Hutchinson, 882 So. 2d 1114, 1115 (Fla. 1st DCA 2004).

Williams v. State Dep’t of Corr., 97 So. 3d 923, 926 (Fla. 1st DCA 2012).

But here, the checks went missing.
The JCC applied the presumption of mailing, which provides that “mail properly
addressed,[2] stamped, and mailed was
received by the addressee, and proof of general office practice
satisfies the requirement of showing due mailing” (emphasis added; citations
omitted). Brown v. Giffen Indus., Inc., 281 So. 2d 897, 900 (Fla. 1973)
(on rehearing).

“Missing” checks were at issue in Pupo
v. City of Hialeah, and this Court made clear that the presumption of
mailing is rebuttable: “Evidence of an office’s standard mailing practices
creates a rebuttable presumption that a particular item was mailed.” 91 So. 3d
925 (Fla. 1st DCA 2012). In the instant case, it is not clear whether the JCC
found the presumption rebutted because even though the JCC found the benefit
was timely paid, it also found that Claimant did not receive the missing
checks. Moreover, the JCC used a fault-based analysis: “That the claimant did
not receive these checks is through no fault of the adjuster or carrier.” This
was error because fault does not come into play either when considering the
presumption of mailing or when determining whether attorney’s fees have
attached.

The JCC found that Claimant had not
established the benefits were “secured” by Claimant’s attorney as is required
for fee entitlement. See § 440.34(2), Fla. Stat. (2013). The JCC also
implicitly found that Claimant was not the prevailing party on the petition for
benefits as is required for cost entitlement. See § 440.34(3), Fla.
Stat. (2013). But both of these findings appear to have been based on the JCC’s
conclusion that the benefits were paid before the petition for benefits was
filed. Because the JCC’s conclusion that the benefits were paid before the
petition for benefits was filed stemmed from his use of a fault-based analysis,
it must be revisited on remand. Accordingly, on remand, the JCC must clarify
the inconsistent findings, apply the proper legal standards, and revisit both
fee entitlement and cost entitlement.

REVERSED and REMANDED for further
proceedings. (WINOKUR and JAY, JJ., CONCUR; WOLF, J., CONCURS IN RESULT.)

__________________

1The
adjuster was not asked, and did not volunteer, the reason she was unaware until
April 14, 2014. Additionally, according to the adjuster, a third check, for the
period of January 28 to February 10, had also been returned as undeliverable,
was re-mailed, and had been received and cashed by Claimant.

2There is
no dispute that all checks here were correctly addressed.

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