Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

In civil cases where there is a statutory or contractual basis for an award of attorney's fees against the non-prevailing party, the courts also have the authority to award pre-judgment interest on those fees.  See Quality Engineered Installation, Inc. v. Higley South, Inc., 670 So.2d 929 (Fla. 1996). Interest runs from the date that entitlement to the attorney's fee becomes fixed even though the amount of those fees has not yet been determined.

 

Not so in workers' compensation cases, however.  See Lee v. Wells Fargo Armored Services, 707 So.2d 700 (Fla. 1998).  The reason for the difference, explained the supreme court in Lee, is that in workers' compensation cases entitlement to the fee does not become fixed, and therefore cannot be paid, until it is first reviewed and approved by the JCC.

 

But with the 2003 amendments to §440.34, the legislature took the guesswork out of determining the amount of fees to be paid to a successful claimant's attorney.  As currently construed, that amendment requires that the amount of the fee be a specified percentage of the benefits secured by the attorney.  Does this mean that the JCC may now award prejudgment interest on attorney's fees because the amount of fees has become "fixed"? Nope.  That's what the First DCA said in Pruden v. Herbert Contractors, Inc., decided on 7/30/2008.  The court held that notwithstanding the 2003 amendment, §440.105(3)(c) still prohibits the payment of a fee until it is approved by the JCC.

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Section 440.20(7), Fla. Stat., provides for a 20% penalty on compensation benefits payable pursuant to an "award" when the compensation is not paid within 7 days after it becomes due.  When an unrepresented claimant enters into a "washout" settlement agreement with the employer/carrier, he is entitled to the 20% penalty in the event of late payment of the settlement proceeds.  But a claimant who has an attorney is not entitled to penalties for a similar late payment.  See s.440.20(11)(c), Fla. Stat.

 

Does this unequal treatment of represented versus unrepresented claimants violate the Equal Protection clause of the Constitution?  No, said the First District Court of Appeal in Lucas v. Englewood Community Hospital, decided on 8/23/2007.  The statute bears "a rational relationship to a legitimate state interest."  The Court reasoned that the legisislature could rationally have presumed that a represented claimant is in a better position to negotiate the terms of settlement - including when the settlement proceeds are due and what penalty might attach in the event of a late payment.  The Court therefore affirmed the order of the JCC which had refused to award a penalty on the late payment of the claimant's $225,000 settlement.

 

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