Zenith Ins. Co./One Hospitality, LLC v. Barrizonte Cruz
Bill Rogner and Andy Borah
The DCA affirmed the JCC’s Order finding entitlement to attorney fees and costs. The claimant filed her PFB on 8/22/18 after 5 p.m. After an initial response denied the claim on 8/29/18, the E/C filed a subsequent response on Monday, 9/24/18, rescinding the denial, paying benefits, but denying entitlement to attorney fees. In denying fee entitlement, the E/C relied on Rule 60Q-6.108(1)(e) that the petition was deemed received the next business day (8/23/18) since e-filed after 5:00pm and Rule 60Q-6.109 that the last day to provide the requested benefits to avoid fee entitlement was 9/24/18 since the 30th day fell on Saturday, 9/22/18. At issue was whether, as the E/C argued, the Q rules (1) resulted in a filing of the PFB on 8/23/18, and (2) whether, since the 30th day would have fallen on a weekend, thus making the response on 8/24/18, the next business day, timely. The DCA held that the Q rules could be applied in determining when the E/C received the petition where the 30 day countdown would begin; however, the 1st DCA determined that the Q rules could not be applied in extending the 30 day calendar period to respond to the petition to avoid fee entitlement finding that the language of F.S. 440.34(3)(b) (Attorney fees will not attach “until 30 days after the date the carrier or employer, if self-insured, receives the petition”) controlled. This analysis similarly appeared in prior rulings in Demandreo (procedural rules cannot alter or amend substantive right to costs) and Hinzman (Q rules cannot extend carrier’s five day calendar period to respond to a one time change request to the fifth business day). The opinion does note that an E/C may defeat attorney fee entitlement without filing a formal response by agreeing to provide the requested benefit, as long as the requested benefit is actually provided within 30 days of the receipt of the PFB.
Click Here to View Opinion