Vincent Sansone v. Frank Crum/Frank Winston Crum Insurance, Inc. , 2016 Fla. App. LEXIS 16230 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
VINCENT SANSONE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-5116
FRANK CRUM/FRANK
WINSTON CRUM
INSURANCE, INC.,
Appellees.
_____________________________/
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.
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employer/carrier rescinded its denial, paid the disability benefits, and accepted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
2
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).
3
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
1
Sansone also sought indemnity benefits, which the employer/carrier actually
paid before the thirty days ran. Those benefits are not at issue here.
4
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.
2
Although 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.
5