Smurfit-Stone Container Corp. v. Taylor, No. 1D00-3799.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM.
• Citation: 786 So.2d 1207
• Parties: SMURFIT-STONE CONTAINER CORP. and RSKCO, Appellant, v. Oscar Vince TAYLOR, Appellee.
• Decision Date: 01 June 2001
• Docket Number: No. 1D00-3799.

786 So.2d 1207

SMURFIT-STONE CONTAINER CORP. and RSKCO, Appellant,
v.
Oscar Vince TAYLOR, Appellee

No. 1D00-3799.

District Court of Appeal of Florida, First District.

June 1, 2001.

786 So.2d 1208

David W. Langham, Mandy J. Locke of Langham and Langham, P.A., Attorneys, Ponte Vedra, for Appellant

John C. Taylor, Jr., Lana G. Eicher of Taylor, Day & Currie, Attorneys, Jacksonville, for Appellee.

PER CURIAM.

Smurfit-Stone Container Corp. and its workers' compensation insurance carrier, RSKCO (Appellants) appeal an order of the Judge of Compensation Claims (JCC) awarding attorney's fees. We hold, for purposes of this case, that Appellee's filing of his Motion for Emergency Conference, pursuant to section 440.25(4)(h), satisfied any pleading requirements under section 440.192. See Town & Country Farms v. Peck, 611 So.2d 63 (Fla. 1st DCA 1992) (notice and filing requirements may be excused in emergency situations). As Appellants refused to authorize the medically necessary emergency care even after the Motion for 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. Fla. v. Mixson, 752 So.2d 92 (Fla. 1st DCA 2000); Weaver v. Southern Bell, 703 So.2d 1213 (Fla. 1st DCA 1997).

AFFIRM.

VAN NORTWICK and LEWIS, JJ., CONCUR; BENTON, J., CONCURS with opinion.

BENTON, J., concurring.

As written, section 440.25, Florida Statutes (1997), contemplates compliance with sections 440.191 (requiring that a request for assistance be filed before a petition for benefits is filed) and 440.192 (authorizing the filing of a petition for benefits, if the request for assistance proves unavailing for thirty days). Here the claimant did not file a request for assistance before he filed his motion for emergency medical conference. Nor does the motion for emergency medical conference meet the pleading requirements laid down by section 440.192.

We have apparently held, however, that an employee can obtain relief from a judge of compensation claims in the event of an emergency,¹ even though no petition for benefits has been filed. See Town of Jupiter v. Andreff, 656 So.2d 1374, 1377 (Fla. 1st DCA 1995). Certainly that was the thrust of much that was said, albeit in dicta, in Dayco Prods. v. Rue, 676 So.2d 58, 61 (Fla. 1st DCA 1996) ("The emergency conference is an exception to the procedure otherwise envisioned by the Act.").

If claims for "medical benefits only" can be asserted in this fashion,² a prevailing

786 So.2d 1209

claimant is entitled to recover an attorney's fee under section 440.34(3)(a), Florida Statutes (1997), which provides

(3) ... A claimant ... shall be entitled to recover a reasonable attorney's fee from a carrier or employer:

(a) Against 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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