Workers’ compensation — Attorney’s fees — Costs — Judge of compensation
claims properly denied award of attorney’s fees under section 57.105, as statute
does not apply to original proceedings involving workers’ compensation claims
brought under chapter 440 — JCC used improper standard when it denied
reimbursement for any and all costs associated with videotaping depositions on
ground that such costs could be awarded only if claimant proved that the
witnesses could not appear at trial — JCC should have considered reasonableness
of claimant’s strategic decision to videotape testimony of adverse witnesses who
might later testify and be cross-examined using the videotaped depositions —
Fact that videotaped depositions might be later used in civil lawsuit does not
preclude finding that the associated expense was a reasonable cost incurred in
pursuit of workers’ compensation benefits

PHILLIP S. LANE, Appellant, v. WORKFORCE BUSINESS SERVICES, INC. F/K/A
EMPLOYEE LEASING SOLUTIONS, SUPERIOR COATINGS, INC., and AMERICAN ZURICH
INSURANCE COMPANY, Appellees. 1st District. Case No. 1D14-0959. Opinion filed
November 12, 2014. An appeal from an order of the Judge of Compensation Claims.
Margaret E. Sojourner, Judge. Date of Accident: December 19, 2011. Counsel: E.
Taylor Davidson of DiCesare, Davidson & Barker, P.A., Lakeland, and Joshua
M. Drechsel of Brumbelow Dreschel Law Group, Saint Petersburg, for Appellant. H.
George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach,
for Appellees.

(PER CURIAM.) In this workers’ compensation case, Claimant appeals an order
by the Judge of Compensation Claims (JCC) which denies an award of attorney’s
fees under section 57.105, Florida Statutes (2013), as well as the reimbursement
of the costs of litigation associated with videotaping two depositions. Because
we find that section 57.105 is not applicable to original proceedings in
workers’ compensation claims brought under chapter 440, we affirm the denial of
attorney’s fees. We reverse, however, the denial of costs because the JCC
applied an improper standard in determining whether the costs of a videographer
were taxable.

In this case, the Employer/Carrier (E/C) denied compensability of Claimant’s
accident and injuries, prompting Claimant to file a petition for benefits
seeking a determination as to his entitlement to benefits under chapter 440.
Extensive litigation ensued. One day before the scheduled final hearing on
Claimant’s petition, Claimant and the E/C entered into a stipulation whereby the
E/C accepted compensability of the claim. As a part of the stipulation, the E/C
agreed to the payment of litigation costs and a statutory guideline attorney’s
fee under section 440.34, Florida Statutes (2011). Claimant also claimed an
additional attorney’s fee under section 57.105, and the parties agreed that the
JCC would decide issues relating to Claimant’s entitlement to such
fees.1 In the appealed order, the JCC
denied the attorney’s fees claimed under section 57.105, concluding that such
fees were not awardable in workers’ compensation proceedings before a JCC. The
JCC also denied the entirety of the costs Claimant incurred in videotaping the
depositions of two adverse witnesses who were instrumental in denying the
compensability of the underlying claim.

The Florida Workers’ Compensation Law, as set forth in Chapter 440,
establishes the liability of an employer thereunder as exclusive and in place of
all other liability to an injured employee. § 440.11, Fla. Stat. (2011). It is
well-established that “[w]orkers’ compensation is purely a creature of statute
and, as such, is subject to the basic principles of statutory construction.”
Sunshine Towing, Inc. v. Fonseca, 933 So. 2d 594, 594-95 (Fla. 1st DCA
2006) (citing McDade v. Palm Beach Cnty. Sch. Distr., 898 So. 2d 126, 128
(Fla. 1st DCA 2005), and Travelers Ins. Co. v. Sitko, 496 So. 2d 920, 921
(Fla. 1st DCA 1986)); see also J.J. Murphy & Son, Inc. v.
Gibbs, 137 So. 2d 553, 562 (Fla. 1962) (noting that workers’ compensation
“must be governed by what the statutes provide, not by what deciding authorities
feel the law should be”). Chapter 440 does not provide the statutory authority
for the application of section 57.105 — by either incorporation or indirect
reference.2

We reject Claimant’s argument that the attorney’s fee provisions of section
57.105 are intended to supplement the provisions of chapter 440 with an
additional sanction or remedy. The essentially self-contained workers’
compensation law in chapter 440 already provides a host of specific sanctions
and remedies which includes attorney’s fees for frivolous claims and defenses
under section 440.32, Florida Statutes (2011). Furthermore, section 57.105
contains no suggestion of legislative intent to include workers’ compensation
cases. In 2003, the Florida Legislature amended section 57.105 to include,
specifically, an award of reasonable attorney’s fees for baseless claims and
defenses raised in administrative proceedings under chapter 120. See §
57.105(5), Fla. Stat. (2003). No similar amendment was made which would
expressly include workers’ compensation cases. Under the doctrine inclusio unius
est exclusio alterius, an inference must be drawn that the Legislature did not
intend to include workers’ compensation trial proceedings within section 57.105.
See Gay v. Singletary, 700 So. 2d 1220, 1221 (Fla. 1997). We
conclude, therefore, that the JCC properly denied Claimant an award of
attorney’s fees under section 57.105.

The JCC, however, improperly denied Claimant reimbursement for any and all of
the costs for the two videotaped depositions. Section 440.34(3), Florida
Statutes (2011), provides that “[i]f any party should prevail in any proceedings
before a [JCC] or court, there shall be taxed against the non-prevailing party
the reasonable costs of such proceedings.” In the final order here, the JCC
noted that there was no showing that the witnesses (both of whom were
individuals responsible for the denial of Claimant’s workers’ compensation case)
would be unavailable for final hearing requiring Claimant to place the video
depositions in evidence in lieu of live testimony. The JCC also commented that
Claimant’s attorney testified that a civil suit was being contemplated and video
depositions are often used in a civil trial. The JCC did not make any other
relevant findings, including whether the elicited testimony was unnecessary or
whether the cost was in excess of what is normally charged for a videotaped
deposition: i.e., whether the costs were reasonably expended in pursuing
workers’ compensation benefits.

“A denial of costs is subject to review under an abuse of discretion
standard.” Moore v. Hillsborough Cnty. Sch. Bd., 987 So. 2d 1288, 1289
(Fla. 1st DCA 2008) (citing Morris v. Dollar Tree Store, 869 So. 2d 704,
707 (Fla. 1st DCA 2004)). Failure to apply the correct legal standard is grounds
for reversal. Village of N. Palm Beach v. McKale, 911 So. 2d 1282, 1283
(Fla. 1st DCA 2005) (reversing a finding of compensability where JCC applied
incorrect evidentiary standard); see also Cromartie v. City of St.
Petersburg, 840 So. 2d 372, 375 (Fla. 1st DCA 2003) (reversing and remanding
denial of compensability of psychiatric injury where it was unclear whether JCC
applied correct standard of causation). Here, the JCC implied that the cost of
videotaping the depositions was not reimbursable without proof that the
witnesses would be unavailable to testify live at the final hearing. The JCC did
not consider, as she should have, the reasonableness of Claimant’s strategic
decision to videotape the testimony of adverse witnesses who might later testify
and be cross-examined using the videotaped depositions. Thus, the JCC used an
improper standard by concluding the costs of a videographer could be awarded
only if Claimant proved that the witnesses could not appear at trial. Further,
Claimant could not be assured of any witness’s appearance, and is not obliged to
be clairvoyant. The JCC’s findings here also seemed to suggest that the costs
were not subject to reimbursement because the depositions might later be used in
a civil lawsuit. Costs incurred exclusively for a purpose unrelated to the
workers’ compensation claim certainly would not be reimbursable; however, the
fact that the depositions here may ultimately serve a dual purpose is not enough
to preclude the associated expense as a reasonable cost in the pursuit of
workers’ compensation benefits.

In summary, we AFFIRM that portion of the final order denying attorney’s fees
under section 57.105. We REVERSE, however, the denial of costs associated with
the videotaped depositions, and REMAND for application of the reasonableness
standard set forth in section 440.34(3). (LEWIS, C.J., CLARK and MARSTILLER,
JJ., CONCUR.)

__________________

1Section 57.105 provides for an award of a
reasonable attorney’s fee in a civil proceeding or action where the losing party
or the losing party’s attorney knew, or should have known, that a claim or
defense was not supported by the necessary material facts. § 57.105(1), Fla.
Stat. (2013).

2Claimant makes much of this Court’s
decision in Demedrano v. Labor Finders of Treasure Coast, 8 So. 3d 498,
500 (Fla. 1st DCA 2009) (citing Dayco Prods. v. McLane, 690 So. 2d 654,
656 (Fla. 1st DCA 1997)). In Demedrano, this Court held that section
57.104 — which provides that the time and labor of legal assistants should be
considered in the computation of an award of attorneys’ fees — applies in
workers’ compensation cases. The holdings in both Demedrano and
Dayco concern only section 57.104 and the means by which an attorney’s
fee award is to be calculated; this Court has never held that the attorney fee
entitlement provision in section 57.105 applies to workers’ compensation cases.
For the reasons stated herein, we decline to extend the holding in these
decisions to permit JCCs to award attorney’s fees under section 57.105.