Sometimes the law becomes a challenge due to the mere presence and meaning of words. The focus of the judge, and courts, should be to give words their plain meaning. That seems easy enough, but there are times when the parties to a case disagree regarding such an interpretation. An interesting example of that occurred recently in Zenith Insurance Co. v. Barrisonte, Case No. 1D19-1141 (Fla. 1st DCA February 12, 2020). It is largely a discussion of what the word "day" means.
In the Florida workers' compensation law, there are various time parameters that may affect the rights and responsibilities of those involved in claims and litigation. See Can "Jake" Authorize a Change in Physician. This Barrisonte example involved the liability for attorney fees under section 440.34(3)(b), and the Florida First District Court provides a helpful explanation of its interpretation of the "statute and the Rules of Procedure for Workers’ Compensation Adjudications."
The statute provides an entitlement to attorney fees. Those might be the responsibility of an injured worker, or in certain specified instances might be the responsibility of the worker's employer. A major point in the distinction between the two comes down to timing. The Court noted that "a claimant is responsible for the payment of her or his own attorney’s fees" as a general rule. But, can "recover an attorney’s fee" if she/he is successful in "prosecuting a petition" "thirty days after an e/c receives the petition."
In this instance, the worker filed a petition for benefits (PFB) electronically "after five o’clock p.m. on August 22, 2018." Receipt was acknowledged "after six that night," and therefore "the parties agreed that the petition was filed the next day, on August 23rd." Therefore, under the rules, "the thirtieth day after that was September 22, 2018 (a Saturday)." At first glance, it is perhaps a simple matter to begin with a particular date and then count the days to a deadline such as 30 days.
In this case, initially, the "E/C filed a response on August 29th denying the entire claim." The thirtieth day came and went, but on "Monday, September 24th, the E/C filed another response in which they rescinded their denial, agreed to provide all requested benefits, and denied fee entitlement." That Monday, "a check for indemnity benefits" claimed was also issued. In large part, a favorable outcome for the injured worker.
When the worker sought attorney's fees from the E/C, those were denied. The E/C contended that it provided the claimed benefits within 30 days, and thus was not responsible for attorney fees regarding these benefits.
The Court in Barrisonte noted that the procedural rules deem a document filed after 5:00 p.m. to be "filed the next day." And, a document that is "served," sent to the opposing party, is "deemed received when served." When that occurs "after 5 p.m. (it) is deemed to have been made on the next business day."
From this combination, the employer contended that it "received" the petition on August 23, 2018, and that the thirtieth day thereafter was September 22, 2018 (Saturday). Following the provision of Rule 60Q-6.109, "which provides that if any act required or allowed to be done falls on a holiday or weekend day, the performance of the act is required to be done on the next regular working day," the employer contended its acceptance of responsibility and payment on September 24, 2018, was thus within 30 days, and that it was not liable for attorney fees.
The trial judge ruled in favor of the worker, concluding that the procedural rule cannot change the statute, effectively enlarging the actual time period beyond the stated 30 days. The Employer sought rehearing, and reiterated that the rule merely "explains what 30 days means . . . for purposes of computation of time.” The trial judge then ruled in the worker's favor again, concluding that "the response time provided in the statute at issue there was not altered by rule 60Q-6.109." The statutory meaning, she held, from "section 440.34(3)(b) meant consecutive or calendar days."
Furthermore, the trial judge "effectively rejected the parties’ agreement" as to receipt of the petition on August 23, 2018, "and instead took judicial notice of the OJCC’s docket," concluding that receipt was acknowledged "on August 22nd, making the thirtieth day September 21, 2018—a Friday." The Employer/Carrier's appeal contended that this sua sponte rejection of the parties' stipulation and acceptance of "extra-record" data violated its right to due process. The appellate court concluded that it "need not address the due process issue" thus raised regarding the stipulation.
The Court concluded that "the petition here was deemed filed on August 23, 2018 (Rule 60Q-6.108(1)(e)), and both served and received that same day (Rule 60Q-6.108(2)(e) and (3))." In so doing, the Court rejected the trial judge's judicial notice and stipulation rejection. Thus, the due process argument was mooted. The Court explained that these rules are appropriate and "comply with the legislative mandate in section 440.45 to enact rules." However, their operation is limited "to establish the date an E/C receives a petition for benefits."
It explained that with that receipt, "the thirty-day countdown that must expire before entitlement to attorney’s fees attaches," under the 2002 statute. It is the receipt, not the filing which begins the time period. The Court reminded that “[r]ules ‘cannot alter, amend or eliminate’ a substantive right." The context of the statute, using "days" without any modifier such as "business days" or similar, leads to the conclusion that “'days' as used in the statute be read to mean calendar days." The Court noted this conclusion is "compelling," and supported by prior Court decisions regarding the word "day."
Thus, the outcome is both controlled by one aspect of the procedural rules and not others. When the thirty-day period begins must be determined. Therefore, "the relevant procedural rules concerning filing and receipt of petitions for benefits are clearly applicable." That rule clarification does "not infringe on the statutory right" to attorney fees. Conversely, the application of 60Q-6.109 to extend that thirty-day period until the next Monday afterward would alter substantive rights in "expanding the time for an E/C who previously denied the claim to change its mind." The effect of the rule in this case would make the period thirty-two days.
The analysis is thus complete. But the Court continued with further discussion. It intimated that the calculation of the thirty-day period was not complicated. It stressed that the Employer/Carrier, upon receipt, was on "notice of the deadline and the need to act accordingly." Furthermore, it reminded us, there was no requirement for a formal "filing" to avoid fee entitlement.
Certainly, the E/C elected to file a "rescission of their earlier denial." However, the Court stressed that the E/C could have simply "sent an email directly to Claimant’s counsel agreeing to accept responsibility for the requested medical benefits, and put the indemnity check in the mail that Friday (or perhaps even that Saturday)." The Court's focus in this regard is upon the fact that such actions were not "impossible to do before thirty days expired."
The point of this further discussion by the Court perhaps is to stress the substance of making payment over the form of a formal written rescission filing. With the payment, the "earlier denial" would be actually rescinded. The filing of a document expressing either rescission or an intent to rescind, it seems, may not be necessary when the payment is simply made.
But, some will note that payment was not made within the 30 days in this case. Those may wonder if the Court's conclusions in that regard are dicta and suggestion. They may advocate that the best course in such a situation would be to both file a rescission and make the payment within that 30-day period. Their advocacy was for the best course to avoid any disagreement or dissent?
