do noT wAIT UnTIl MondAY on wEEKEnd dEAdlInES
Workers’ Compensation Section
Chair: Anthony Cortese – Anthony V. Cortese, Attorney at Law
The rules of
procedure cannot be
interpreted to change
I
a statutory deadline.
n Zenith Insurance Company
v. Cruz, 1 the First District
examined the interplay
between statutory language
and applicable rules of procedure.
The adjuster filed an acceptance of
a claim on the Monday following
the thirtieth day after the petition
for benefits was filed. Zenith
Insurance Company argued that
the rules of procedure allowed a
document to be filed on a Monday
if it was due on a weekend.
Therefore, for the purposes of
determining whether the carrier
was responsible for Cruz’s
attorney’s fees for not providing
benefits within thirty days of service
of the petition, the Monday
following the thirtieth day should
be considered the thirtieth day. As
a result, Zenith argued they should
not be responsible for the fees of
Cruz’s counsel.
In this case, Cruz filed a petition
for benefits after 5 p.m. on August
22, 2018. Zenith acknowledged
receipt after 6 p.m. that night, and
the parties agreed that the date of
service should be August 23, 2018.
This was an important ruling within
the decision, that filing or service
after 5 p.m. is considered to be
done the next day. Zenith then
filed a response denying the
entire claim on August 29, 2018.
However, on Monday, September
24, 2018, another response was
filed by Zenith, which rescinded
the denial, and agreed to provide
all benefits. The question presented
was whether Cruz was entitled to
attorney’s fees from Zenith under
F.S. 440.34, because more than
30 days passed after the petition
was filed and before Zenith filed
the reply and provided benefits.
Subsequently, Zenith argued
that Rule 60Q-6.109 of the
Rules of Procedure for Workers
Compensation Adjudications states
that if any act required or allowed
to be done falls on a holiday or
weekend day, performance of the
act is required to be done on the
next regular working day. Zenith
argued that because the 30th day
would have been September 22,
a Saturday, that they should have
until the following Monday to
respond and, because they did
respond on Monday and accept
the claim, no attorney’s fee should
be due to Cruz’s attorney.
The First District held that
because 30 days expired on Saturday,
and the benefits were not paid or
agreed to on or before Saturday, a
fee was due from Zenith to Cruz’s
counsel under F.S. 440.34. The court
held that the rules of procedure
cannot be interpreted to change a
statutory deadline. The decision
recognized some of the changes in
the practice that have come with
the e-JCC service program, which
allows a practitioner or party to file
appropriate petitions and responses
on a 24/7 schedule. What is not
explicitly mentioned is that under
the e-JCC system, a response can
generally be filed over the weekends
and holidays. Under this decision,
service after 5 p.m. is considered to
be made the following day. However,
if the statute allows 30 days, the
employer/carrier only has 30 days
even if the thirtieth day is a
weekend or holiday. n
___ So. 3d ___, No. 1D19-1141
(Fla. February 12, 2020).
1
Author: Anthony V. Cortese, Attorney
at Law
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