No Statute of Limitations for Claimant Attorney Fee Motions

Wednesday, October 27, 2010 | 0

By Michael Rabinowitz
Banker Lopez Gassler

It was too good to be true. This past July, I wrote of a proposed change by Dthe Division of Administrative Hearings to the rules of procedure for workers' compensation adjudications that would put a time limit of when claimants' attorneys could file a motion for attorney's fees against an employer/carrier.  The proposed rule change, specifically to Rule 60Q-6.107, was as follows:

“(4) Any party seeking an order determing the entitlement to or amount of attorney’s fees or costs shall file the motion therfor within 365 days after the provision of benefits, dismissal of claim, judicial order, or appellate mandate from which the movant claims attorney fees or costs are due.  Untimely motions or petitions for attorney’s fees or costs will be dismissed.”

It looks like a compromise was made and, effective Oct. 31, there will be a new wrinkle towards claimant attorney fee claims.

While there is no statute of limitations for attorney fee claims, an E/C can motion to the judge to require a claimant attorney to file a verified fee motion under 60q-6.107.

“(4) Upon motion by the employer or carrier, the judge may require the claimant to file a verified motion for attorney’s fees and costs and adjudicate the verified motion for attorney’s fees and costs.”

How this new rule will be put into effect is a mystery. Would the judge impose a deadline upon a claimant attorney? What if he cannot make that deadline? Would the claim be forever barred?

There is a provision in the 60Q Rules that says if an E/C does not respond to a verified fee petition in 30 days, it waives its right to defend the fee claim.  Yet, there is established case law from the 1st District Court of Appeal that finds this would be too harsh and a disproportionate punishment to the E/C. The striking of defenses or claims is a punishment that should be only applied in extreme circumstances.  Simply missing a deadline would not meet that standard.  The same could be said for this new 60Q-6.107 rule.

But, this does give E/C’s at least some ammunition to force claimant attorneys to address any potential fee claims to at least give claims professionals the opportunity to close an “old dog” file that has no pending litigation. Once this new rule comes into effect, I will report of any cases that interprets its meaning.

Michael Rabinowitz is an attorney for Banker Lopez Gassler, a workers' compensation defense firm in Tampa. This column was reprinted with his permission from the firm's blog, http://workerscompblog.wordpress.com/2010/10/11/doah-backs-down-no-statute-of-limitations-for-claimant-attorney-fee-motions/