Allen v. Tyrone Square 6 AMC Theaters, No. 98-1017.

CourtCourt of Appeal of Florida (US)
Writing for the CourtBENTON, J.
Citation731 So.2d 699
PartiesMark ALLEN, Appellant, v. TYRONE SQUARE 6 AMC THEATERS and Travelers Insurance Company, Appellees.
Decision Date02 February 1999
Docket NumberNo. 98-1017.

731 So.2d 699

Mark ALLEN, Appellant,
v.
TYRONE SQUARE 6 AMC THEATERS and Travelers Insurance Company, Appellees

No. 98-1017.

District Court of Appeal of Florida, First District.

February 2, 1999.


Dana L. Greenbaum of Greenbaum & Bergman, St. Petersburg, for Appellant.

Peter H. Dubbeld and Edwin Kravitz Jr. of Dubbeld & Kaelber, P.A., St. Petersburg, for Appellees.

BENTON, J.

In this workers' compensation case, we reverse the denial of Mark Allen's petition for attorney's fees. Authorizing medical benefits within fourteen days of the filing of a petition for medical benefits only does not preclude an award of attorney's fees under section 440.34(3)(a), Florida Statutes (1997). When a specific request for reasonable and necessary medical care is made, the employer is under an obligation to provide the benefits within a reasonable time— whether or not a petition for medical benefits is ever filed.

Mr. Allen had an accident arising out of his employment with Tyrone Square 6 AMC Theaters (AMC) on March 11, 1994. That the accident is compensable has never been in dispute. Subsequently Mr. Allen filed two separate requests for assistance followed by two separate petitions for benefits seeking specified medical benefits only. Within fourteen days of the filing of each petition, Travelers Insurance Company (Travelers), AMC's workers' compensation insurance carrier, authorized the medical care each petition requested. At issue now is whether AMC and Traveler's are responsible for attorney's fees1 that Mr. Allen incurred in securing these medical benefits.

731 So.2d 700
Mr. Allen's verified fee petition raised the issue. In her Order Denying Attorney Fee at Employer/Carrier's Expense, the judge of compensation claims reasoned, as follows
1. On May 14, 1997 a Petition for Benefits was served seeking authorization of a pain management program recommended by Dr. O'Connor on March 17, 1997, together with attorney's fees. The Petition was received by the carrier on May 15, 1997, and on May 29, 1997, within fourteen days of receipt of the Petition, a DWC-12 Notice of Denial was filed indicating that the requested benefit was authorized and that the claimant had an appointment with Dr. George Chaumont on June 18, 1997. Attorney's fees were denied as being not due or owing.
2. On August 29, 1997 a Petition was served seeking authorization of cervical facet injections prescribed by Dr. Chaumont on June 20, 1997, together with attorney's fees. The Petition was received by the carrier on September 3, 1997, and on September 12, 1997, within fourteen days of receipt of the Petition, a DWC-12 Notice of Denial was filed indicating that medical treatment had been authorized. Attorney's fees were denied as being not due or owing.
. . . .
5. § 440.34(3)(a), Florida Statutes, provides for the payment of a fee by the employer or carrier if the claimant successfully asserts a claim for medical benefits only and he has not filed or is not entitled to file a claim for disability, permanent impairment, wage loss or death benefits arising out of the same accident. No Petition or claim was pending for any form of indemnity benefits and no evidence was submitted indicating that the claimant was otherwise entitled to benefits of this nature.
6. However, § 440.192(8) provides that a carrier, within fourteen days after receipt of a Petition for Benefits by certified mail, must either pay the requested benefits or file a Notice of Denial. This section appears to conflict with § 440.34(3)(a), as it seemingly gives a carrier fourteen days to act on a Petition.

Under this theory, an employer may ignore a request for medical benefits with impunity until fourteen days after a petition for medical benefits only has been filed.

Such a result undermines important objectives of the Workers' Compensation Law. Substantially unchanged since 1979, language now found in section 440.34(3)(a), Florida Statutes (1997), authorizes requiring payment of the claimant's attorney's fees by an employer

[a]gainst whom she or he successfully asserts a claim for medical benefits only, if the claimant has not filed or is not entitled to file at such time
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5 practice notes
  • Smurfit-Stone Container Corp. v. Taylor, No. 1D00-3799.
    • United States
    • Court of Appeal of Florida (US)
    • June 1, 2001
    ...Emergency Conference was filed, Appellants incurred liability for Appellee's attorney's fees. See Allen v. Tyrone Square 6 AMC Theaters, 731 So.2d 699 (Fla. 1st DCA 1999). We do not consider the lack of a written fee agreement as this issue was never presented to the JCC. See Univ. of W. Fl......
  • Jones v. Shadow Trailers, Inc., No. 1D13–4168.
    • United States
    • Court of Appeal of Florida (US)
    • April 11, 2014
    ...asserts a petition for medical benefits only.” Claimant argues that he is due E/C-paid fees under Allen v. Tyrone Square 6 AMC Theaters, 731 So.2d 699, 699 (Fla. 1st DCA 1999), wherein this court considered section 440.34(3)(a), and held that “[w]hen a specific request for reasonable and ne......
  • Checkers Restaurant v. Wiethoff, No. 1D04-193.
    • United States
    • Court of Appeal of Florida (US)
    • February 16, 2006
    ...Notes: 1. See McDonald's Restaurant # 7160 v. Montes, 736 So.2d 768 (Fla. 1st DCA 1999); Allen v. Tyrone Square 6 AMC Theaters, 731 So.2d 699 (Fla. 1st DCA KAHN, C.J., concurring in result. I would simply decide this case on its facts by applying the teachings of Bussey v. Wal-Mart Store # ......
  • Jones v. Shadow Trailers, Inc., CASE NO. 1D13-4168
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 2014
    ...asserts a petition for medical benefits only." Claimant argues that he is due E/C-paid fees under Allen v. Tyrone Square 6 AMC Theaters, 731 So. 2d 699, 699 (Fla. 1st DCA 1999), wherein this court considered section 440.34(3)(a), and held that "[w]hen a specific request for reasonable and n......
  • Request a trial to view additional results
5 cases
  • Smurfit-Stone Container Corp. v. Taylor, No. 1D00-3799.
    • United States
    • Court of Appeal of Florida (US)
    • June 1, 2001
    ...Emergency Conference was filed, Appellants incurred liability for Appellee's attorney's fees. See Allen v. Tyrone Square 6 AMC Theaters, 731 So.2d 699 (Fla. 1st DCA 1999). We do not consider the lack of a written fee agreement as this issue was never presented to the JCC. See Univ. of W. Fl......
  • Jones v. Shadow Trailers, Inc., No. 1D13–4168.
    • United States
    • Court of Appeal of Florida (US)
    • April 11, 2014
    ...asserts a petition for medical benefits only.” Claimant argues that he is due E/C-paid fees under Allen v. Tyrone Square 6 AMC Theaters, 731 So.2d 699, 699 (Fla. 1st DCA 1999), wherein this court considered section 440.34(3)(a), and held that “[w]hen a specific request for reasonable and ne......
  • Checkers Restaurant v. Wiethoff, No. 1D04-193.
    • United States
    • Court of Appeal of Florida (US)
    • February 16, 2006
    ...Notes: 1. See McDonald's Restaurant # 7160 v. Montes, 736 So.2d 768 (Fla. 1st DCA 1999); Allen v. Tyrone Square 6 AMC Theaters, 731 So.2d 699 (Fla. 1st DCA KAHN, C.J., concurring in result. I would simply decide this case on its facts by applying the teachings of Bussey v. Wal-Mart Store # ......
  • Jones v. Shadow Trailers, Inc., CASE NO. 1D13-4168
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 2014
    ...asserts a petition for medical benefits only." Claimant argues that he is due E/C-paid fees under Allen v. Tyrone Square 6 AMC Theaters, 731 So. 2d 699, 699 (Fla. 1st DCA 1999), wherein this court considered section 440.34(3)(a), and held that "[w]hen a specific request for reasonable and n......
  • Request a trial to view additional results

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