                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

PHILLIP S. LANE,                    NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D14-0959

WORKFORCE BUSINESS
SERVICES, INC. F/K/A
EMPLOYEE LEASING
SOLUTIONS, SUPERIOR
COATINGS, INC., and
AMERICAN ZURICH
INSURANCE COMPANY,

      Appellees.


_____________________________/

Opinion filed November 12, 2014.

An appeal from an order of the Judge of Compensation Claims.
Margaret E. Sojourner, Judge.

Date of Accident: December 19, 2011.

E. Taylor Davidson of DiCesare, Davidson & Barker, P.A., Lakeland, and Joshua
M. Drechsel of Brumbelow Dreschel Law Group, Saint Petersburg, for Appellant.

H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for
Appellees.
PER CURIAM.

        In this workers’ compensation case, Claimant appeals an order by the Judge

of Compensation Claims (JCC) which denies an award of attorney’s fees under

section 57.105, Florida Statutes (2013), as well as the reimbursement of the costs of

litigation associated with videotaping two depositions. Because we find that section

57.105 is not applicable to original proceedings in workers’ compensation claims

brought under chapter 440, we affirm the denial of attorney’s fees. We reverse,

however, the denial of costs because the JCC applied an improper standard in

determining whether the costs of a videographer were taxable.

        In this case, the Employer/Carrier (E/C) denied compensability of Claimant’s

accident and injuries, prompting Claimant to file a petition for benefits seeking a

determination as to his entitlement to benefits under chapter 440. Extensive litigation

ensued. One day before the scheduled final hearing on Claimant’s petition, Claimant

and the E/C entered into a stipulation whereby the E/C accepted compensability of

the claim. As a part of the stipulation, the E/C agreed to the payment of litigation

costs and a statutory guideline attorney’s fee under section 440.34, Florida Statutes

(2011). Claimant also claimed an additional attorney’s fee under section 57.105, and

the parties agreed that the JCC would decide issues relating to Claimant’s

entitlement to such fees. 1 In the appealed order, the JCC denied the attorney’s fees


1
    Section 57.105 provides for an award of a reasonable attorney’s fee in a civil
                                        2
claimed under section 57.105, concluding that such fees were not awardable in

workers’ compensation proceedings before a JCC. The JCC also denied the entirety

of the costs Claimant incurred in videotaping the depositions of two adverse

witnesses who were instrumental in denying the compensability of the underlying

claim.

         The Florida Workers’ Compensation Law, as set forth in Chapter 440,

establishes the liability of an employer thereunder as exclusive and in place of all

other liability to an injured employee. § 440.11, Fla. Stat. (2011). It is well-

established that “[w]orkers’ compensation is purely a creature of statute and, as such,

is subject to the basic principles of statutory construction.” Sunshine Towing, Inc. v.

Fonseca, 933 So. 2d 594, 594-95 (Fla. 1st DCA 2006) (citing McDade v. Palm Beach

Cnty. Sch. Distr., 898 So. 2d 126, 128 (Fla. 1st DCA 2005), and Travelers Ins. Co.

v. Sitko, 496 So. 2d 920, 921 (Fla. 1st DCA 1986)); see also J.J. Murphy & Son, Inc.

v. Gibbs, 137 So. 2d 553, 562 (Fla. 1962) (noting that workers’ compensation “must

be governed by what the statutes provide, not by what deciding authorities feel the

law should be”). Chapter 440 does not provide the statutory authority for the

application of section 57.105 — by either incorporation or indirect reference.2


proceeding or action where the losing party or the losing party’s attorney knew, or
should have known, that a claim or defense was not supported by the necessary
material facts. § 57.105(1), Fla. Stat. (2013).
2
    Claimant makes much of this Court’s decision in Demedrano v. Labor Finders of
                                         3
      We reject Claimant’s argument that the attorney’s fee provisions of section

57.105 are intended to supplement the provisions of chapter 440 with an additional

sanction or remedy. The essentially self-contained workers’ compensation law in

chapter 440 already provides a host of specific sanctions and remedies which

includes attorney’s fees for frivolous claims and defenses under section 440.32,

Florida Statutes (2011). Furthermore, section 57.105 contains no suggestion of

legislative intent to include workers’ compensation cases. In 2003, the Florida

Legislature amended section 57.105 to include, specifically, an award of reasonable

attorney’s fees for baseless claims and defenses raised in administrative proceedings

under chapter 120. See § 57.105(5), Fla. Stat. (2003). No similar amendment was

made which would expressly include workers’ compensation cases. Under the

doctrine inclusio unius est exclusio alterius, an inference must be drawn that the

Legislature did not intend to include workers’ compensation trial proceedings within

section 57.105. See Gay v. Singletary, 700 So. 2d 1220, 1221 (Fla. 1997). We


Treasure Coast, 8 So. 3d 498, 500 (Fla. 1st DCA 2009) (citing Dayco Prods. v.
McLane, 690 So. 2d 654, 656 (Fla. 1st DCA 1997)). In Demedrano, this Court held
that section 57.104—which provides that the time and labor of legal assistants
should be considered in the computation of an award of attorneys’ fees—applies in
workers’ compensation cases. The holdings in both Demedrano and Dayco concern
only section 57.104 and the means by which an attorney’s fee award is to be
calculated; this Court has never held that the attorney fee entitlement provision in
section 57.105 applies to workers’ compensation cases. For the reasons stated herein,
we decline to extend the holding in these decisions to permit JCCs to award
attorney’s fees under section 57.105.

                                         4
conclude, therefore, that the JCC properly denied Claimant an award of attorney’s

fees under section 57.105.

      The JCC, however, improperly denied Claimant reimbursement for any and

all of the costs for the two videotaped depositions. Section 440.34(3), Florida

Statutes (2011), provides that “[i]f any party should prevail in any proceedings

before a [JCC] or court, there shall be taxed against the non-prevailing party the

reasonable costs of such proceedings.” In the final order here, the JCC noted that

there was no showing that the witnesses (both of whom were individuals responsible

for the denial of Claimant’s workers’ compensation case) would be unavailable for

final hearing requiring Claimant to place the video depositions in evidence in lieu of

live testimony. The JCC also commented that Claimant’s attorney testified that a

civil suit was being contemplated and video depositions are often used in a civil trial.

The JCC did not make any other relevant findings, including whether the elicited

testimony was unnecessary or whether the cost was in excess of what is normally

charged for a videotaped deposition: i.e., whether the costs were reasonably

expended in pursuing workers’ compensation benefits.

      “A denial of costs is subject to review under an abuse of discretion

standard.” Moore v. Hillsborough Cnty. Sch. Bd., 987 So. 2d 1288, 1289 (Fla. 1st

DCA 2008) (citing Morris v. Dollar Tree Store, 869 So. 2d 704, 707 (Fla. 1st DCA

2004)). Failure to apply the correct legal standard is grounds for reversal. Village of

                                           5
N. Palm Beach v. McKale, 911 So. 2d 1282, 1283 (Fla. 1st DCA 2005) (reversing a

finding of compensability where JCC applied incorrect evidentiary standard); see

also Cromartie v. City of St. Petersburg, 840 So. 2d 372, 375 (Fla. 1st DCA 2003)

(reversing and remanding denial of compensability of psychiatric injury where it

was unclear whether JCC applied correct standard of causation). Here, the JCC

implied that the cost of videotaping the depositions was not reimbursable without

proof that the witnesses would be unavailable to testify live at the final hearing. The

JCC did not consider, as she should have, the reasonableness of Claimant’s strategic

decision to videotape the testimony of adverse witnesses who might later testify and

be cross-examined using the videotaped depositions. Thus, the JCC used an

improper standard by concluding the costs of a videographer could be awarded only

if Claimant proved that the witnesses could not appear at trial. Further, Claimant

could not be assured of any witness’s appearance, and is not obliged to be

clairvoyant. The JCC’s findings here also seemed to suggest that the costs were not

subject to reimbursement because the depositions might later be used in a civil

lawsuit. Costs incurred exclusively for a purpose unrelated to the workers’

compensation claim certainly would not be reimbursable; however, the fact that the

depositions here may ultimately serve a dual purpose is not enough to preclude the

associated expense as a reasonable cost in the pursuit of workers’ compensation

benefits.

                                          6
      In summary, we AFFIRM that portion of the final order denying attorney’s

fees under section 57.105. We REVERSE, however, the denial of costs associated

with the videotaped depositions, and REMAND for application of the

reasonableness standard set forth in section 440.34(3).

LEWIS, C.J., CLARK and MARSTILLER, JJ., CONCUR.




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