PHILLIP S. LANE v. Workforce Business Services, Inc. etc., etal

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
PHILLIP S. LANE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-0959
WORKFORCE BUSINESS
SERVICES, INC. F/K/A
EMPLOYEE LEASING
SOLUTIONS, SUPERIOR
COATINGS, INC., and
AMERICAN ZURICH
INSURANCE COMPANY,
Appellees.
_____________________________/
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.
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
1
Section 57.105 provides for an award of a reasonable attorney’s fee in a civil
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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
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).
2
Claimant makes much of this Court’s decision in Demedrano v. Labor Finders of
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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
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.
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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
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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.
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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.
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