Smith v. Burke Painting, 1D98-1299.
| Decision Date | 31 January 2000 |
| Docket Number | No. 1D98-1299.,1D98-1299. |
| Parties | Andrew SMITH, Appellant, v. BURKE PAINTING and FTBA Fund, Appellees. |
| Court | Florida District Court of Appeals |
Dana L. Greenbaum of Greenbaum & Bergman, St. Petersburg, for Appellant.
Alexandra M. DeMaio of Boehm, Brown, Seacrest, Fischer and LeFever, P.A., Tampa, for Appellees.
In this workers' compensation appeal, Andrew Smith challenges an order denying his claim for an award of attorney's fees under section 440.34(3)(b), Florida Statutes (1995). Under the authority of Integrated Health Servs. v. Hyde, 721 So.2d 1217 (Fla. 1st DCA 1998), we affirm.
Andrew Smith sustained a compensable industrial injury on March 12, 1997, and commenced receiving indemnity benefits thereafter. On April 29, 1997, he filed a request for assistance pursuant to section 440.191, Florida Statutes (1995), seeking an increase in his average weekly wage (AWW) based upon prior employment in the industry and for payment of attorney's fees and costs. Thereafter, on June 3, 1997, Smith filed a petition for benefits seeking an increase in AWW. On June 19, 1997, the carrier, FTBA Fund, filed a form styled "Notice of Denial," in which the carrier stated that it would agree to increase Smith's AWW to include wages earned with the prior employer, would continue to verify wages with the prior employer, and will adjust the AWW if appropriate. The day after the Notice of Denial was filed, the carrier issued Smith an indemnity check reflecting the requested increase in AWW. Smith then sought attorney's fees on the authority of section 440.34(3)(b), Florida Statutes (1995). Following a hearing, the JCC denied the claim for attorney's fees.
Section 440.34(3)(b) provides that attorney's fees can be awarded against the employer and carrier "[i]n any case in which the employer or carrier files a notice of denial with the division and the injured person has employed an attorney in the successful prosecution of his claim...." (Emphasis supplied). In Integrated Health Servs. v. Hyde, 721 at 1218, the claimant filed a request for assistance pursuant to section 440.191, seeking permanent and total disability benefits; in response, the employer/carrier filed a notice of denial. The claimant subsequently filed a petition for benefits, and the employer/carrier accepted claimant as permanently and totally disabled within the 14-day statutory time frame. In Integrated Health, we held that no fees were recoverable because a "successful prosecution" of a claim was not undertaken. We explained there that the request for assistance procedure is part of the informal dispute resolution process, and that section 440.191(2)(d), Florida Statute (Supp.1994), exempts employers or carriers from liability for attorney's fees for services rendered in connection with the informal dispute resolution process, unless expressly authorized elsewhere in chapter 440. Further, neither the filing of nor the denial of the request for assistance entitles the JCC to award attorney's fees, because there must be a successful prosecution of a claim. Id; see also Volusia County Fire Servs. v. Eaby, 725 So.2d...
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Zabik v. PALM BEACH COUNTY SCHOOL DIST.
...is generally not entitled to attorney's fees where the request for benefits has never been controverted. See Smith v. Burke Painting, 765 So.2d 727 (Fla. 1st DCA 2000); Integrated Health Servs. v. Hyde, 721 So.2d 1217 (Fla. 1st DCA 1998). With regard to the second finding, we must respectfu......
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...the petition sought that were then ripe, due and owing contrasts starkly with the filing of a notice of denial. See Smith v. Burke Painting, 765 So.2d 727 (Fla. 1st DCA 2000) (affirming denial of fee award because the claim was never controverted); Integrated Health Servs. v. Hyde, 721 So.2......