IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
PANZER LAW, P. A., NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-0908
PALM BEACH COUNTY
SCHOOL DISTRICT and FARA,
A YORK RISK SERVICES
COMPANY,
Appellees.
_____________________________/
Opinion filed October 13, 2014.
An appeal from an order of the Judge of Compensation Claims.
Mary A. D’Ambrosio, Judge.
Dates of Accident: August 16, 2006 and November 25, 2008.
Bill McCabe, Longwood, and Gilbert R. Panzer, Jr., Boca Raton, for Appellant.
Hinda Klein and Elizabeth Ann Izquierdo of Conroy, Simberg, Ganon, Krevans,
Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
PER CURIAM.
In this workers’ compensation matter, we have for review an order of the
Judge of Compensation Claims (JCC) denying Appellant, Claimant’s former
attorney (Panzer), entitlement to an attorney’s fee based on the failure of the relevant
petition for benefits (PFB) to meet the requirements of section 440.192, Florida
Statutes (2006). Because the JCC erred by failing to give full effect to all of the
provisions of section 440.192, we reverse and remand for further proceedings.
Because the facts are not in dispute, our review is de novo. See Airey v. Wal-
Mart, 24 So. 3d 1264, 1265 (Fla. 1st DCA 2009) (noting that when “[t]he pertinent
facts are undisputed . . . the issue is one purely of law, subject to de novo review”).
In addition, because resolution of this appeal requires statutory interpretation, our
review is de novo. See Lombardi v. S. Wine & Spirits, 890 So. 2d 1128, 1129 (Fla.
1st DCA 2004).
Panzer filed a PFB on behalf of his client seeking, in relevant part,
authorization of a second opinion with a shoulder surgeon. At the time the PFB was
filed, Claimant was under the care of Dr. Kolettis, an orthopedic surgeon authorized
by the Employer/Carrier (E/C) to treat Claimant’s right shoulder injury. It is not
disputed that Claimant did not attach to this PFB a written recommendation from
Dr. Kolettis for such a referral. Nor is it disputed that the E/C did not file a motion
to dismiss the PFB based on a lack of specificity, or answer the petition within 30
days. See, e.g., Russell Corp. v. Brooks, 698 So. 2d 1334, 1335 (Fla. 1st DCA 1997)
(“In practical effect, . . . failure to respond to the petition for benefits . . . operated
not as an admission of compensability but as a denial of every allegation [and
demand for benefits] in the petition for benefits.”).
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Under the version extant both in 2006 and in 2008, section 440.34 provided
“that a claimant shall be entitled to recover a reasonable attorney’s fee from a carrier
or employer: . . . [i]n any case in which the employer or carrier files a response to
petition denying benefits with the Office of the Judges of Compensation Claims and
the injured person has employed an attorney in the successful prosecution of the
petition,” § 440.34(3)(b), Fla. Stat., while section 440.192, Florida Statutes (2006
and 2008), provided in part:
(1) Any employee may, for any benefit that is ripe, due,
and owing, file . . . a [PFB] which meets the requirements
of this section and the definition of specificity in s. 440.02.
...
(2) Upon receipt, the Office of the Judges of
Compensation Claims shall review each petition and shall
dismiss each petition or any portion of such a petition that
does not on its face specifically identify or itemize the
following:
....
(i) The type or nature or treatment care or attendance
sought and the justification for such treatment. If the
employee is under the care of a physician for any injury
identified under paragraph (c), a copy of the physician’s
request, authorization, or recommendation for treatment,
care, or attendance must accompany the petition.
....
The dismissal of any petition or portion of such a petition
under this section is without prejudice and does not require
a hearing.
(3) A [PFB] may contain a claim for past benefits and
continuing benefits in any benefit category, but is limited
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to those in default and ripe, due, and owing on the date the
petition is filed. . . .
....
(5) All motions to dismiss must state with particularity the
basis for the motion. . . . Any grounds for dismissal for
lack of specificity under this section which are not asserted
within 30 days after receipt of the [PFB] are thereby
waived.
....
(7) Notwithstanding the provisions of s. 440.34, a [JCC]
may not award attorney’s fees payable by the carrier for
services expended or costs incurred prior to the filing of a
petition that does not meet the requirements of this section.
§ 440.192, Fla. Stat. Rather than litigate in the main proceeding any issue
concerning the claimant’s entitlement to a second opinion, the employer and carrier
eventually authorized the benefit, albeit approximately a year after the request was
made. At least for fee purposes, this capitulation established, if not that the benefit
requested was ripe, due and owing at the time that the petition for benefits was filed,
then at a minimum that “the injured employee ha[d] employed an attorney in the
successful prosecution of the petition.” § 440.34(3)(b), Fla. Stat. (2006 and 2008).
Whenever a “physician’s request, authorization, or recommendation for
treatment, care, or attendance must accompany the petition,” § 440.192(2)(i), Fla.
Stat., the requirement that the claimed benefits be “ripe, due, and owing” is
inextricably intertwined with the subsection 440.192(2) specificity requirement. For
that reason, we have held that the E/C’s failure to file a motion to dismiss the PFB
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for lack of specificity when the physician’s recommendation is not attached resulted
in a waiver of any entitlement to challenge the ripeness of the claimed benefit in the
fee hearing. See Straw v. Steve Moore Chevrolet, ∗ 651 So. 2d 708, 709 (Fla. 1st
DCA 1995) (reversing denial of E/C-paid attorney’s fee where E/C failed to move
to dismiss claim, which likely failed to comply with specificity requirements, but
instead responded to it and litigated it to resolution). The Straw panel agreed with
Mr. Straw’s argument that Steve Moore Chevrolet “waived its right to raise the lack
of specificity defense at the fee hearing because of the failure of the [E/C] to move
for dismissal of the claim.” Id. at 711. The Court further noted that “[i]f the [E/C]
do not move to dismiss and the claim proceeds on the merits, it must be assumed
that the claim sufficiently puts the [E/C] on ‘notice’ of the benefits sought by the
claimant to make an informed decision with respect to the claim.” Id. at 712.
In the present case, too, an attachment would both have established ripeness
and satisfied the specificity requirement, and the E/C’s failure to object to the
absence should be deemed a waiver of both legal defenses. Our conclusion in this
regard is buttressed by the Legislature’s adding to section 440.192 the language now
∗
We note that the relevant statute in Straw was the 1991 version of the
Workers’ Compensation Law and the statutory citations were to section 440.19, not
440.192. A comparison of the two subsections reveals, however, that the relevant
provisions are essentially identical. Section 440.192 first appeared in chapter 440 in
1993, moving the provisions relating to the “Procedure for Resolving Benefit
Disputes” from section 440.19 to section 440.192. See Ch. 93-415, § 25, at 137,
Laws of Fla.
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found in subsection (5), when section 440.192 was first enacted in 1993—“Any
grounds for dismissal for lack of specificity under this section which are not asserted
within 30 days after receipt of the [PFB] are thereby waived.” § 440.192(5), Fla.
Stat.
Plainly “ripeness” and “specificity” will not be the same in every case. Here,
however, where section 440.192(2)(i) required that a copy of the request or
recommendation be attached to the PFB in order to meet the specificity requirement,
that same attachment would have established the ripeness of the PFB. Thus, because
the E/C failed to move to dismiss the PFB in a timely manner, the JCC erred in
failing to give effect to the waiver provision of section 440.192(5).
Accordingly, we REVERSE and REMAND this matter for proceedings
consistent with this opinion.
LEWIS, C.J., BENTON, and RAY, JJ., CONCUR.
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