Jeffrey P. Gale, P.A. // Twist on Medical-Only Attorney’s Fees Under Florida Statute 440.34(3)(a)

doctor.jpgA Judge of Compensation Claims (JCC) recently denied our firm a stipulated carrier-paid attorney’s fee under the so-called medical-only section of Florida Statute 440.34. The judge rejected the stipulation because a claim for Permanent Total Disability (440.15(1)) was pending when we filed a claim for psychiatric care. The judge misread the statute.

440.34(3)(a) provides as follows:

(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees. A claimant is responsible for the payment of her or his own attorney’s fees, except that a claimant is entitled to recover an attorney’s fee in an amount equal to the amount provided for in subsection (1) or subsection (7) from a carrier or employer:

(a) Against whom she or he successfully asserts a petition for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident.

The judge relied on the words, “has not filed,” without considering the qualifying language, “at such time.”

A medical benefit claim is not medical-only under 440.34(3)(a) when (1) the PFB includes both medical and non-medical claims; City of Gainesville v. Helton, 543 So.2d 820 (Fla. 1st DCA 1989 (where a claim for medical benefits only relates back to an initial claim for compensation benefits and medical costs, the mere fact of the subsequent settlement of the compensation benefits does not change the posture of the claim to one for medicals only); or (2) the claimant was entitled to file for non-medical benefits when filing a medical-only claim but failed to do so.

Neither standard applies in our case. The claim for psychiatric care was filed three months after the claim for PTD. In addition, when the claim was filed our client was not entitled to file for any non-medical benefit as none were due and owing. Hence, our claim was one for medical-only.

We’ve filed an objection to the court’s ruling; we await its ruling.


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