Keywords: attorney’s fees and costs, petition for benefits, timeliness
Rule: Fault does not come into play either when considering the presumption of mailing or when determining whether attorney’s fees have attached.
Summary: Claimant suffered a compensable work accident and injured his right hand. Claimant filed a Petition for Benefits on February 21, 2014, requesting his temporary disability benefits checks that had not been received. A Response was filed on February 24, 2014 stating that the benefits had been paid. The adjuster stated that she issued a check on January 13, 2014 and another on January 21, 2014. Both checks were returned as undeliverable. Finally after realizing on April 14, 2014 that the checks had not been delivered to Claimant, the adjuster sent new checks to Claimant on April 22, 2014. Afterwards, Claimant filed a Notice of Resolution stating that the benefits had been paid and reserving attorney’s fees and costs. Claimant argued that attorney’s fees and costs were due because the new checks were not issued until April 22, 2014. The JCC denied entitlement to attorney’s fees and costs. Under case law, timeliness is determined by the date checks of payment are placed in the mail. The JCC used the presumption of mailing, which provides that “mail properly addressed, stamped, and mailed was received by the addressee, and proof of general office practice satisfies the requirement of showing due mailing.” However the Court felt that the JCC contradicted itself in finding that the benefits were paid timely and that the reason Claimant did not receive the checks until April 22nd. The JCC also erred in its use of a fault-based analysis and stating that Claimant “did not receive these checks is through no fault of the adjuster or carrier.” The Court reversed the JCC’s order denying entitlement to attorney’s fees and costs and remanded the case to determine whether the benefits were paid before the petition for benefits was filed. The takeaway should be to have evidence that any checks were properly mailed and make sure that any checks sent to a claimant are actually received by said claimant.