Allen v. Tyrone Square 6 AMC Theaters

• Decision Date: 02 February 1999
• Docket Number: No. 98-1017.,98-1017.
• Citation: 731 So.2d 699
• Parties: Mark ALLEN, Appellant, v. TYRONE SQUARE 6 AMC THEATERS and Travelers Insurance Company, Appellees.
• Court: Florida District Court of Appeals

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. 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 a claim for disability, permanent impairment, wageloss, or death benefits, arising out of the same accident.

Explaining the rationale for (a predecessor of) this provision, we said in Dalton v. Orange County Sheriff, 503 So.2d 406, 408 (Fla. 1st DCA 1987):

The fee for recovering medical benefits becomes due because the employer and carrier, in denying a medical claim later established to be well-taken, defeat the self-executing purpose of the workers' compensation statute and compel the claimant to employ an attorney to prosecute the medical benefits claim. Bacon v. Broward Employment & Training Administration, 501 So.2d 724 (Fla. 1st DCA 1987).

Allowing the employer to disregard a request for medical benefits until after a petition for benefits has been filed would "defeat the self-executing purpose of the workers' compensation statute."

Another difficulty with the argument that employers and carriers always have fourteen days after receiving a petition for medical benefits only within which to authorize the benefits—without being liable for fees under subsubsection (a)—is that interpreting the statute in this way renders subsubsection (a) surplusage.²

Subsubsection (a) authorizes a fee award when an injured employee prevails on a petition for benefits containing a claim for medical benefits only. See Gulledge v. Dion Oil Co., 605 So.2d 482 (Fla. 1st DCA 1992); Gunn's Quality Glass & Mirrors, Inc. v. Strode, 425 So.2d 73 (Fla. 1st DCA 1982). Subsubsection (b) authorizes a fee award when an injured employee prevails on a petition for benefits in "any case in which the employer or carrier files a notice of denial with the division."

Hendry County Sch. Bd. v. Mitchell, 716 So.2d 814, 815 (Fla. 1st DCA 1998). We held in Russell Corp. v. Brooks, 698 So.2d 1334, 1335 (Fla. 1st DCA 1997):

In practical effect, the appellants' failure to respond to the petition for benefits... [within fourteen days] operated not as an admission ... but as a denial of every allegation in the petition for benefits.

See also id. at 1337 (Ervin, J., concurring) ("[T]he carrier that takes no action can be subjected to ... attorney's fees under section 440.34(3), Florida Statutes (Supp. 1994), particularly under subsection (b) thereof....").

Under appellees' construction of the statute, only a claimant entitled to an award of attorney's fees under subsubsection (b) could be entitled to benefits under subsubsection (a). "Statutory interpretations that render statutory provisions superfluous `are, and should be, disfavored.'" Johnson v. Feder, 485 So.2d 409, 411 (Fla. 1986) (quoting Patagonia Corp. v. Board of Governors of the Fed. Reserve Sys., 517 F.2d 803, 813 (9th Cir.1975)). See Unruh v. State, 669 So.2d 242, 245 (Fla.1996); City of North Miami v. Miami Herald Publ'g Co., 468 So.2d 218, 219-20 (Fla. 1985).

Before filing the petitions, Mr. Allen filed requests for assistance in obtaining the medical benefits that became the subjects of the petitions for benefits. Indeed, an "employee may not file a petition requesting any benefit under [the Workers' Compensation Law] unless the employee has...