In the case of Interstate Brands Corp./Broadspire v. Edwin Blanco, released November 30, 2010, the Employer/Carrier  appealed an order awarding attorney's fees and costs.  The case involved an accident date of May 5, 1997 for which the claimant was accepted as PTD in 1999.  On January 10, 2008, PTD benefits and supplemental benefits inexplicably stopped.  The adjuster would later testify that this was "merely an oversight" that was the result of an internal transfer of the file from one adjuster to another.  A PFB was filed on March 25, 2008 but no response was filed by the E/C.  Instead, on May 7, 2008, the E/C paid a lump sum representing past PTD and supplemental benefits with penalties and interest.

Subsequently, the claimant's attorney sought attorney's fees payable by the E/C.  He asserted that the "benefits obtained" included not only the past due PTD, supplemental benefits, penalties and interest but, also, the present value of all future PTD and supplemental benefits.  The E/C objected to the value of the future benefits being used to determine the statutory attorney fee.  The Judge of Compensation Claims ultimately awarded fees that included the value of the future benefits finding that the E/C's intent or reason for stopping the payment was irrelevant because no response was filed within 30 days.

The First DCA, after pointing out that 14 days was the correct time to consider for this accident date, found that the JCC erred in considering the value of the future benefits.  Given the testimony of the adjuster the JCC correctly found that the E/C had no knowledge it stopped paying benefits.  Therefore, there was no reason to find that the E/C intended to permanently suspend the PTD and supplemental benefits.  Without such a finding, the value of the future benefits could not be used to determine the amount of the attorney fee.  The First DCA did point out that they "do not condone the E/C's negligent failure to timely provide disability benefits".

The Court appears to acknowledge that in this business, mistakes will happen.   This case is also perhaps the 1st DCA following the direction of the Supreme Court in Murray v. Mariner Healthto try to keep the attorney fees "reasonable" (even though this pre-2003 case is not subject to that standard).

The attorneys at Massey, Coican, Schuster & King are experienced in defending· municipalities and identifing the application of law under Planning Level Functions and Operational Level Functions.· If you have any questions regarding this appellate opinion or any other issue regarding workers' comp defense, insurance liability defense or appellate law, call us at (954) 527-3919.

Massey, Coican, Schuster & King