Florida/Georgia Personal Injury & Workers Compensation

...den., 511 So.2d 297 (Fla. 1987). Clearly, in appropriate circumstances, the JCC is authorized to impose sanctions for failure to comply with the provisions in the workers' compensation statutes and rules, including those provisions governing the taking of depositions. § 440.30 & 440.33, Fla....

...laimant's burden and entitlement with regard to the witness' services remained unaffected by section 440.13(2)(k), Florida Statutes (Supp. 1990). We also find no impermissible conflict between section 440.13(2)(k), Florida Statutes (Supp. 1990), and section 440.30, Florida Statutes, or section 440.31, Florida Statutes....

...1990), is a more specific enactment relating to the narrower circumstances which the statute identifies. Section 440.13(2)(k), Florida Statutes (Supp. 1990), was therefore properly applied upon the occurrence of these circumstances, without regard to the more general provisions in section 440.30 and section 440.31....

...Capasso's earnings by the deputy commissioner apparently came as a surprise to all concerned. When, at deposition, the employer denied the existence of a similar employee, it became incumbent upon claimant to press the matter, either through further discovery or a motion to compel. Cf. Florida Statutes section 440.30, .33 (1981); Fla.W.C.R.P....

...Alpert, Miami, for petitioners. Edward N. Moore of Walters, Moore & Costanzo, Miami, Paul E. Speh and Burnis T. Coleman, Tallahassee, for respondents. DREW, Justice. This compensation case presents the very narrow issue of whether, under the provisions of Section 440.30, Florida Statutes (1959), F.S.A., construed in pari materia with Rule 1.21 of the 1954 Florida Rules of Civil Procedure, 30 F.S.A., an employer or carrier voluntarily paying compensation to an injured employee may take the employee's deposition prior to the filing of a formal claim by such employee....

...at it is one of wide public interest involving the duties and responsibilities and authority of the Florida Industrial Commission and affects the future administration of the beneficent provisions of the Workmen's Compensation Law of this State. [1] Section 440.30, Florida Statutes (1959), F.S.A., deals specifically with the taking of depositions of witnesses (which, of course, includes claimants) in connection with proceedings under the Workmen's Compensation Law....

...Such section contains the provision that such depositions shall be taken "* * * as now or hereafter prescribed by law or by rules of court governing the taking and use of such depositions in civil actions at law in the circuit courts of this state." The germane statute, viz.: Section 440.30, dealing as it does with the specific subject of workmen's compensation, would control as paramount authority in the event any of its provisions were inconsistent with the provisions of Rule 1.21, Florida Rules of Civil Procedure, which generally govern the subject of taking depositions....

...To the contrary, the statute and the rules of procedure allow Claimant to take the EMA's deposition in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure. See Fla. Admin. Code. R. 60Q-6.114(1) & (2); see also § 440.30, Fla....

...authorized the taking of certain depositions of the E/C's employees. Petitioner asserts that the order is not authorized under Section 440.39(7), Florida Statutes (1989), and that the ordered depositions exceed the scope of discovery as set forth in Section 440.30, Florida Statutes (1989)....

...[1] Thus, the duty to cooperate set forth in section 440.39(7) does not attach in the instant case, [2] and any order requiring it to apply constitutes a departure from the essential requirements of law. Moreover, the requested depositions are generally outside the scope of discovery allowed in workers' compensation cases. Section 440.30, Florida Statutes (1989), provides: Depositions of witnesses or parties ......

...Second, in seeking discovery of all items, with the exception of those related to the decedent's AWW, respondent is engaged in a mere "fishing expedition" to obtain information that would assist the claimant in filing only a wrongful death action against the employer. Third, the taking of depositions is, pursuant to Section 440.30, Florida Statutes (1989), governed by the Florida Rules of Civil Procedure, and rule 1.280(b)(1) thereof limits the scope of discovery to "any matter, not privileged, that is relevant to the subject matter of the pending action," [1] a...

...I consider that section 440.39(7) should be read in pari materia with both Florida Workers' Compensation Rule of Procedure 4.090(a), permitting the depositions of witnesses or parties to "be taken and ... used in connection with proceedings under Chapter 440, Florida Statutes[,]" and with section 440.30, authorizing the taking of depositions "for the same purposes ... governing the taking and use of such depositions in civil actions at law in the circuit courts of this state." Thus, after considering rule 4.090(a) and section 440.30 in pari materia with the provisions of section 440.39(7), I am of the view that the most logical interpretation of subsection (7) is that depositions may be permitted to assist in the production of nonprivileged documents pursuant to t...

...ot submit to a statutorily required medical examination and does not appear for a scheduled deposition. F.S. section 440.25(6), F.S.A., provides a claimant may be required to submit to a medical examination by a doctor of the employer's choice. F.S. section 440.30, F.S.A., deals specifically with the taking of depositions of witnesses in compensation cases....

...te's interrogation was an "official proceeding." Turning to the instant case, the only pertinent statutory provisions authorizing the insurance carrier to take Nessmith's deposition is found in the Workers' Compensation Act, Florida Statutes (1983). Section 440.30 authorizes the taking of depositions if a formal claim for benefits has been filed or "prior to the institution of a claim, if the claimant is represented by an attorney." [9] Rule 9 of the Florida Workers' Compensation Rules contains similar provisions....

...insufficient to establish this essential element. The state did not introduce any claim by Nessmith for benefits, the notice of taking his deposition, or any other evidence to establish that the deposition was being lawfully taken in accordance with section 440.30....

...ect to the penalties of perjury. Indeed, a primary goal of the present worker's compensation act is that it be "self executing" which is to say that proceedings be had for payment of benefits without the necessity of filing a claim. Florida Statutes Section 440.30, provides that depositions "may be taken and may be used in connection with proceedings under the Worker's Compensation Law ......

...n which they may be interrogated, and he is empowered to administer oaths to all witnesses summoned to testify by the process of his court or who may voluntarily appear before him to testify as to any violation or violations of the criminal law. [9] Section 440.30 states: Depositions of witnesses or parties, residing within or without the state, may be taken and may be used in connection with proceedings under the Workers' Compensation Law, either upon order of the deputy commissioner or at the...

...ion process. While the E/C can point to no specific statutory provision conferring this authority upon the JCC, they nevertheless argue that the requisite jurisdictional authority can be implied from several statutory provisions as follows: sections 440.30; 440.33(1); 440.25(4)(h); 440.13(4)(c); and 440.13(5)(a), Florida Statutes (1994 Supp.)....

...s been expressly conferred in certain instances. In some instances the language of the statute is such that the jurisdiction and authority of the JCC is necessarily confined to proceedings before the JCC after a petition for benefits has been filed. Section 440.30 specifically authorizes the JCC to order the taking of depositions before a claim is filed....

...As may be seen from the above review, the IME provisions are largely self-executing, the one exception being that the employee is given the right to "appeal" to the JCC in the event the E/C withholds payments in excess of the authority granted by this section. Section 440.13(5)(d). Unlike section 440.30, dealing with the taking of depositions, and unlike section 440.33(1), as implemented by Rule 4.090, Florida Rules of Workers' Compensation Procedure, providing for the preclaim production of documents if the claimant is represented by...

...an attorney, or after the filing of the claim, in *985 the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure. COMMENT RULE 9. 1979 REVISION. This replaces Rule 9, 1977 W.C.R.P. It is derived substantially from § 440.30, Fla....

...aimant’s arguments that sections *1091 440.19(6) and 440.24(4), Florida Statutes (2004), controlled. In response to a motion for rehearing filed by claimant, the judge entered an amended final order, rejecting arguments that sections 440.13(5) and 440.30, Florida Statutes (2004), applied, and reaffirming the rejection of claimant’s previously advanced statutory arguments....

...is presumed to have intended some specific objective or alteration of law, unless a contrary indication is clear.” Mangold v. Rainforest Golf Sports Ctr., 675 So.2d 639, 642 (Fla. 1st DCA 1996). *1093 Claimant contends that sections 440.13(5) and 440.30, Florida Statutes (2004), control the disposition of this dispute, and that they override section 440.34(3)....

...h a claimant may obtain reimbursement for the costs of an independent medical examination, but it in no way impacts an employer’s or carrier’s entitlement to reimbursement of reasonable costs when the employer or carrier is the prevailing party. Section 440.30 permits fees charged by court reporters and witnesses to “be taxed as costs and recovered by the claimant, if successful in ... workers’ compensation proceedings.” Claimant’s argument that the language of section 440.30 “expressly limits” the award of costs for depositions to claimants only is not borne out by a plain reading of the section....

...Stat. (1991). [6] Preservation of error in this case is governed by Florida Rule of Civil Procedure 1.330(d)(3)(A), which requires an objection to an expert's qualifications, under circumstances such as those at bar, to be made during the deposition. § 440.30, Fla....

...On October 25, 2010, Shannon suffered a compensable accident and injury while in the course and scope of his employment. Shannon retained legal counsel, but did not file a petition for benefits. The E/C took Shannon’s deposition prior to the institution of any claim, as permitted by section 440.30, Florida Statutes (2010), and Shannon’s counsel attended this deposition. Shannon’s attorney then requested payment of attorney’s fees for attending this deposition under the authority of section 440.30, which provides, in relevant part, that “[i]f no claim has been filed, then the carrier or employer taking [a] deposition shall pay the claimant’s attorney a reasonable attorney’s fee for attending said deposition.” § 440.30, Fla....

...During this deposition, counsel for the E/C questioned Shannon’s counsel on the very matters sworn to in the pending motion for fees. After attending this second deposition, Shannon’s counsel filed an amendment to his motion for fees, requesting attorney’s fees under the authority of section 440.30 for his attendance at the second deposition — because this deposition, like the first, was set (and he was required to attend) in the absence of a pending petition for benefits....

...In the first point on appeal, Shannon argues that the JCC erred in denying fees for attending the second deposition on either one of two alternative legal theories — both of which were argued below to the JCC. 1 Because, as we explain below, we agree with Shannon’s argument that the plain language of section 440.30 — along with this court’s prior application of this statute — compels the award of attorney’s fees where a claimant’s attorney is required to attend a deposition set by an employer or carrier when no petition for benefits has been filed under section 440.192, we conclude that the JCC erred in denying fees under section 440.30 for Shannon’s counsel’s attendance at the second deposition. Because we grant relief on one of Shannon’s two arguments posed in the alternative, we need not address Claimant’s alternative argument that the JCC erred in denying expert witness fees under section 440.31. 2 *1232 Fees Due Under Section 440.30 Section 440.30, Florida Statutes (2010), is the specific provision within chapter 440 that governs the use of depositions in workers’ compensation proceedings. Although this section is a single paragraph containing no subparts, it addresses a variety of issues regarding such depositions. First, section 440.30 provides that depositions may be taken and used in connection with proceedings under the workers’ compensation law, either at the insistence of a party or as required by an order of a JCC. Further, the plain language of section 440.30 provides that such depositions can be taken “prior to the institution of a claim” if the claimant is represented by an attorney, or “after the filing of the claim” whether or not the claimant is represented by an attorney. See § 440.30, Fla. Stat. And significant to the issue presented here, section 440.30 provides that “If no claim has been filed, then the carrier or employer taking the deposition shall pay the claimant’s attorney a reasonable attorney’s fee for attending said deposition.” See id. The legal issue presented in this point on appeal presents a question of statutory interpretation, and turns upon whether Shannon’s counsel’s motion to collect attorney’s fees due under the authority of section 440.30 is a “claim” as the term is used in section 440.30. For the reasons that follow we conclude that this motion was not a “claim” as the term is used in section 440.30. Although section 440.30 has been amended numerous times since its enactment in 1935, this statutory provision was altered in 1979 effectively for the final time, 3 to declaratively provide for an employer- or carrier-paid fee where an employer or carrier takes a deposition when “no claim has been filed.” Ch. 79-40, § 23, Laws of Fla.; see also § 440.30, Fla....

...(Supp.1994) (providing compensation is barred unless timely “petition for benefits” is filed). Notwithstanding this change in statutory nomenclature, in the 1994 revisions of chapter 440, the Legislature neither supplemented nor altered the wording of section 440.30. Significantly, when this court was first confronted with an opportunity to interpret section 440.30 after the 1994 revisions to chapter 440, we held that the term “claim,” as used in section 440.30, is “properly construed as the filing of a petition for benefits under *1233 section 440.192.” See Wright v....

...y, but is limited to those in default and ripe, due, and owing on the date the petition is filed.”); see also 440.192(3), Fla. Stat. (2010) (same). Based on the foregoing, we hold that, consistent with our holding in Wright , the plain language of section 440.30 compels the payment of an attorney’s fee in those circumstances where a claimant’s attorney is required to attend a deposition set or compelled by an employer or carrier, when no petition for benefits — or other document that if timely filed would toll the statute of limitations — has been filed under section 440.192. We conclude that Shannon’s counsel’s motion for attorney’s fees was not a “claim” as the term is used in section 440.30; the motion was not filed in accordance with the requirements of section 440.192 nor was it contained within a petition for benefits, and it would not toll the limitation period regarding Shannon’s entitlement to benefits under the applicable statute of limitations, section 440.19(2), Florida Statute (2010)....

...ce at the second deposition. In presenting argument on this point, Shannon fails to cite a statutory basis for such attorney’s fees. Instead, he relies on case law that bears no meaningful relationship to the payment of fees due under the terms of section 440.30. Significantly, this court has previously held that an attorney’s right to a fee under section 440.30 “vests upon his attendance at a deposition” that is taken in the absence of a “claim.” See Orange State Marine v. Snack, 382 So.2d 1367, 1368 (Fla. 1st DCA 1980) (“As for the jurisdictional challenge, the attorney’s right to a fee vests upon his attendance at a deposition which comes within the provisions of section 440.30 and the Judge is not divested of jurisdiction to award the fee by the withdrawal of the claim.”). Given our bright-line interpretation of the word “claim” as used in section 440.30 — whereby either a “claim” for benefits has been filed under section 440.192, or it has not (removing any reasonable debate regarding whether a fee is due under section 440.30) — we see no reason to recede in any way from our holding in Snack . Accordingly, under the facts and arguments presented here, it was proper for the JCC to have denied Shannon’s counsel additional attorney’s fees for obtaining the payment of fees under section 440.30. We therefore affirm that portion of the appealed order that denies Shannon’s counsel’s *1234 attorney’s fees for obtaining the payment of fees due under section 440.30....

...ing the first deposition. ROBERTS, WETHERELL, and SWANSON, JJ., concur. . Shannon presented the same arguments to the JCC that he raises before this court. Accordingly, the E/C's argument that Claimant failed to preserve for appeal the argument that section 440.30 provides a basis of entitlement to fees for the second deposition is devoid of merit....

...5th DCA 2006) (explaining that to preserve issue for appeal, it must be presented to lower tribunal). . Because both Zabawczuk and Stone are founded on the supreme court’s interpretation of section 440.31, and because neither case endeavors to interpret the language of section 440.30, we fail to see the applicability of these cases to the issue of statutory interpretation we address herein....

...ligated to pay such costs). Accordingly, although Zabawczuk and Stone were properly relied upon by the JCC to address Shannon’s request for the payment of expert costs, the cases do not speak to issues of entitlement to attorney’s fees due under section 440.30. . The 1991 amendments to section 440.30 merely changed references to the "deputy commissioner” to the "judge of compensation claims,” to reflect the renaming of this office....

...” prong of the certiora-ri standard. The Workers’ Compensation Law provides that depositions of witnesses or parties shall be taken in the manner prescribed by rules governing the taking of such depositions in civil actions in circuit court. See § 440.30, Fla....

1977 W.C.R.P. It is derived substantially from § 440.30, Fla.Stat., 1979. RULE 10. PRETRIAL PROCEDURE

...e for complying with discovery. (b) When Discovery May Be Had. Discovery under this rule may be had before or after the filing of a claim or petition, in the same manner and for the same purpose as provided in the Florida Rules of Civil Procedure or section 440.30, Florida Statutes....

not be required to attend at her own expense. Section 440.30, Florida Statutes (1977), provides that depositions

...Claimant’s testimony that she continues to have problems paying her bills without her son’s support is uncontroverted. Therefore, we find that the facts sub judice meet the criteria of MacDon Lumber Co. v. Stevenson, and the deputy commissioner’s conclusion of non-dependency is erroneous. *767 Section 440.30, Florida Statutes (1981), provides that if the employer/carrier takes claimant’s deposition and no claim has been filed, then the employer/carrier must pay the claimant’s attorney a reasonable fee for attending the deposition....

...e employer/carrier immediately following decedent’s accident in 1980. Appellees cite Ridge Pallets, Inc. v. John, 406 So.2d 1292 (Fla. 1st DCA 1982), for the proposition that a notice to controvert constitutes the filing of a claim for purposes of section 440.30....

...In Ridge Pallets, the worker had filed a wage loss form BCL-13b with the employer and carrier. Subsequently, the employer/carrier deposed the worker and then filed a notice to controvert. This court held that the “claim” was not filed for purposes of section 440.30 until after the notice to controvert was filed because it was at that point that the Division had notice of the asserted right to benefits and began its independent investigation under sections 440.20(10)(b) and 440.19(1), Florida Statutes....

...Appellant’s formal claim for benefits was not filed until March 10, 1982, and it was only subsequent to that time that the Division investigated and rendered an advisory decision pursuant to section 440.19(1). Therefore, based on the rationale of Ridge Pallets and a literal reading of section 440.30, a reasonable attorney’s fee should be awarded claimant’s attorney for attending claimant’s deposition....

...under the Florida Workmen’s Compensation Law and that New York lacked jurisdiction of the cause, inasmuch as there is no statutory provision to authorize the taking of such testimony. The Deputy Commissioner, in his Order, found, inter alia, that Section 440.30 of the Florida Statutes [F.S.A.], was ample authority to order the taking of testimony of witnesses out of state and, accordingly, the motion of the employer and carrier to dismiss was denied....

...All the Deputy Commissioner did was request the New York Board to arrange to take the testimony of certain designated witnesses, which testimony would *420 be transcribed and transmitted to the Deputy Commissioner for his consideration. “For the reasons stated hereinabove and on authority of Section 440.30, Florida Statutes [F.S.A.], the Order of the Deputy Commissioner dated June 26, 19S8, be and the same is hereby affirmed.” It is to be noted from the Deputy Commissioner’s order and the full Commission’s order affirming the same,...

...n no sense can this be said to be the taking of depositions pursuant to the Florida Rules of Civil Procedure. The only decision we have been able to find in Florida that remotely touches on the taking of the deposition by the Commission, pursuant to Section 440.30, is an opinion by Deputy Commissioner James R. Knott, now a Circuit Judge, reported in 2 Florida Supplement, page 11. At the hearing the carrier offered in evidence the deposition of five witnesses pursuant to Section 440.30, Florida Statutes, F.S.A., to which the claimant objected on the ground that they were not admissible under Common Law Rule 20 as the witnesses were not at a greater distance than one hundred miles from the place of hearing. The Commissioner overruled this objection. There is little discussion in the opinion of this subject. The Deputy Commissioner, on page IS, states: “Section 440.30, Workmen’s Compensation Act, provides that depositions of witnesses may be taken ‘in the manner prescribed by law for like depositions in civil actions at law.’ As noted above, the claimant objects to the admissibility of the car...

...ties. In this case, the attorneys for claimant and the employer had stipulated to have the Idaho commissioner hold a hearing in Spokane, Washington. The court rejected this stipulation and treated the testimony as un-sworn statements of the parties. Section 440.30, Florida Statutes, F.S.A., provides in part the following: “Depositions of witnesses, residing within or without the state, may be taken and may be used in connection with proceedings under the Florida workmen’s compensation act, e...

...That the witness is at a greater distance than one hundred miles from the place of trial or hearing, or is out of the United States, * * *.” The title of Rule 1.21 is Depositions Pending Action. Due to the procedural history of the instant case considered in connection with the language of section 440.30, Florida Statutes, F.S.A., it would seem that Rule 1.21 is the rule with which the parties must comply....

...Procedural rules applicable in court have even been applied to administrative proceedings in the absence of mandatory language in the creating statute. Redwing Carriers, Inc. v. Carter, Fla.1953, 64 So.2d 557 . It is not necessary for this court in deciding this case to determine whether or not Section 440.30 authorizes the Commission or a Deputy Commissioner on its own motion to order the deposition of a claimant taken outside the State of Florida as in the instant case, because no attempt to take depositions is indicated....

...The Deputy Commissioner simply requested the New York Commission to take the evidence of the claimant and other witnesses and forward the transcript back to him. We find no authority for such action. Certainly it is not conferred by the Florida Statutes, Sec. 440.30, F.S.A....

costs when a claim is successfully prosecuted. Section 440.30, Florida Statutes. In this case the claimant

SMITH, Senior Judge. Appellant, the claimant below, challenges a workers’ compensation order denying his *1322 claim for attorney’s fees under section 440.30, Florida Statutes (1993), for his attorney’s attendance at the claimant’s deposition taken by the employer/earrier (E/C) prior to the filing of a claim....

...A Petition for Benefits had not been filed prior to the taking of the claimant’s deposition. The parties settled the issues relating to the Petition for Benefits. Counsel for claimant subsequently filed a Motion for Attorney’s Fees pursuant to section 440.30, Florida Statutes (1993) for having attended the claimant’s deposition prior to the claimant filing a claim.- The employer defended the motion on the ground that the Request for Assistance was a “claim” within the meaning of section 440.30, Florida Statutes (1993). The Judge of Compensation Claims (JCC) ruled that the claimant’s Request for Assistance constituted a “claim,” and therefore, the claimant was not entitled to attorney’s fees under section 440.30, Florida Statutes (1993)....

...The claimant argues on appeal that reference to “filing of a claim” in section 440.34, Florida Statutes (1994 Supp.) should properly be construed as the filing of a Petition for Benefits, and therefore, the claimant’s deposition was taken prior to the filing of a “claim” as the term is used in section 440.30, Florida Statutes (1993), entitling the claimant’s counsel to attorney’s fees. We agree. Section 440.30, Florida Statutes (1993) provides as follows: Depositions of witnesses or parties, residing within or without the state, may be taken and may be used in connection with proceedings under the Workers’ Compensation Law, either upon ord...

...igation and the involvement of attorneys. The Request for Assistance was created to help avoid the filing of claims and the commencement of litigation. In serving this purpose, a Request for Assistance cannot be construed to constitute a claim under section 440.30, Florida Statutes (1993). We find that the reference to a filing of a “claim” in section 440.30, Florida Statutes (1993) should properly be construed as the filing of a Petition for Benefits under section 440.192, Florida Statutes (1994 Supp.) and not the filing of a Request for Assistance under section 440.191, Florida Statutes (1994 Supp.). Therefore, the JCC erred in determining that a Request for Assistance is a “claim” under section 440.30, Florida Statutes (1993). Counsel for the claimant prepared for and attended the deposition of the claimant prior to the filing of a claim, and therefore, is entitled to a reasonable attorney’s fees pursuant to section 440.30, Florida Statutes (1993)....

...is Court’s February 12, 2003 Order.” The standard of review of a JCC’s decision to exclude evidence is abuse of discretion. See Cedar Hammock Fire Dep’t v. Bonami, 672 So.2d 892 (Fla. 1st DCA 1996). Discovery by deposition is permitted under section 440.30, Florida Statutes (2000), and its scope is defined by that statute and by Florida Rule of Civil Procedure 1.280(b)(1)....

...At the time the depositions were taken, the claim had not been controverted nor had 21 days passed without payment. Thereafter, claim for compensation was withdrawn and three days later Snack’s attorney petitioned the Judge to establish a reasonable attorney’s fee for his attendance at the depositions, pursuant to Section 440.30, Florida Statutes (1978). A fee of $400 was awarded. The employer-carrier urges that the factors considered in the order imply that the Judge awarded the fees pursuant to Section 440.34, Florida Statutes (1978), and that if the award was made pursuant to Section 440.30, the Judge erred in interpreting and applying the statute....

...It also urges that because the claim for compensation was voluntarily withdrawn before the petition for attorney’s fees was filed, the Judge lost jurisdiction to adjudicate and award attorney’s fees. The petition for attorney’s fees expressly relied on Section 440.30 as the basis for the fees and there is nothing in the order indicating that the award was made on any other basis. Section 440.30 provides in pertinent part: “If the claim has not been controverted or if 21 days have not passed without payment, then the carrier or employer taking the deposition shall pay the claimant’s attorney a reasonable attorney’s fee f...

...he statute is applied. The statute is clear and unambiguous and it was properly applied by the Judge. As for the jurisdictional challenge, the attorney’s right to a fee vests upon his attendance at a deposition which comes within the provisions of Section 440.30 and the Judge is not divested of jurisdiction to award the fee by the withdrawal of the claim....

...e for complying with discovery. (b) When Discovery May Be Had. Discovery under this rule may be had before or after the filing of a claim or petition, in the same manner and for the same purpose as provided in the Florida Rules of Civil Procedure or section 440.30, Florida Statutes....

...arty intending to use such evidence is first given a reasonable opportunity to depose the party or witness who is the subject of the surveillance. Committee Notes 1979 Adoption!. This replaces Rrule 9, 1977 W.C.R.P. It is derived substantially from ^section 440.30, Florida» Statutes {1979)....

...3d at 313, this court stated that “the statute and the rules of procedure allow Claimant to take the EMA’s deposition in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure. See Fla. Admin. Code R. 60-Q-6.114(1) & (2); see also § 440.30, Fla. Stat....

...Rule 4.200, Florida Workers’ Compensation Rules of Procedure, makes this principle applicable in workers’ compensation proceedings. In workers’ compensation proceedings, discovery by deposition may be had as provided in the Florida Rules of Civil Procedure. § 440.30, Fla.Stat....

MILLS, Judge. James Bednarik appeals from the denial by the deputy commissioner of his claim for attorney’s fees pursuant to Section 440.30, Florida Statutes....

...the parties.” In December 1985 and January 1986, the E/C noticed and held depositions of Bed-narik’s physician and Bednarik, respectively. Bednarik’s attorney attended on his behalf. Based on this attendance, the claim for the fee pursuant to § 440.30 was filed (if no claim has been filed, then the carrier or employer taking a deposition shall pay the claimant’s attorney a reasonable attorney’s fee for attending such deposition)....

...ved between the parties, because the stipulations did not with *253 draw their respective claims, nor were the claims withdrawn by separate formal pleading, both claims remained pending at the tíme of the deposition, barring the award of fees under § 440.30....

...d January 1986. We therefore find that there is no competent substantial evidence in this record to support the deputy’s conclusion that the 1983 and 1984 claims were pending at the time of these depositions so as to bar the fee sought pursuant to Section 440.30....

...sability benefits, medical bills, and permanent disability benefits. At the hearing, appellant’s attorney contended that a claim had not been filed, and further argued that the purpose of the hearing was to determine his entitlement to a fee under Section 440.30, Fla.Stat....

...Additionally, the record does not contain a claim for workers’ compensation benefits and there is no notice to controvert by the employer/carrier. Therefore, the order is reversed and remanded to the deputy commissioner with instructions to award appellant attorney’s fees under Section 440.30, Fla.Stat....

...Harbin, 247 So.2d 33 (Fla.1971), it was held that “as a matter of law, a [judge of compensation claims] has authority to dismiss a claim ... of a claimant when he does not ... appear for a scheduled deposition.” Harbin at 34 . The court explained that Section 440.30, Florida Statutes, addressed the taking of depositions in workers’ compensation cases, providing that such depositions should be taken “as now or hereafter *899 prescribed by law or by rules of court governing the taking and use of...

...h provided that if a party wilfully failed to appear before the officer who was to take his deposition after being served with a proper notice, the court on motion and notice could dismiss the action or proceeding or any part thereof. Harbin at 34 . Section 440.30, Florida Statutes (1987), still reads as quoted by the Harbin court....

...The employer and carrier in this workers’ compensation case appeal an order requiring them to pay an injured worker’s attorney a $125 fee for attending his deposition, noticed and taken by the employer and carrier before the onset of other contested proceedings. The deputy awarded this attorney’s fee under authority of Section 440.30, Florida Statutes (1979), which independently of the narrow fee allowances in Section 440.34 requires the employer and carrier to pay a fee to the worker’s attending lawyer “if no claim has been filed” at the time the worker’s deposition is taken by the employer and carrier....

...Here, when the deposition was noticed and taken, the worker had filed with the employer and carrier a *1293 request for wage loss benefits on a paper designated LES Form BCL-13b. Rule 38F-3.18(2), Fla.Admin.Code. We hold this was not the filing of a “claim” shutting off entitlement to a Section 440.30 deposition attorney’s fee. We therefore affirm the deputy’s order requiring the employer and carrier to pay the fee to claimant’s attorney. Section 440.30, as amended in 1979, provides in part: Depositions of witnesses or parties ....

...e the Division if the employer files a notice to controvert a wage loss request, as the employer did here after taking the worker’s deposition. The employer and carrier contend that the submission of the BCL-13b form to the carrier ended access to Section 440.30 attorney’s fees because the form in several places uses the word “claim” and the Division in another of its rules required that “claims” for wage loss should be filed on the BCL-13b form only....

...ent context, should control our determination of whether submitting the form to the carrier ended a worker’s right to have his deposition taken with an attorney present without cost to him. About the only general observation that can be made about Section 440.30 is that it is an attempt by the Legislature to strike an appropriate balance between two potentially adverse interests: on the one hand, the employer and carrier may have need to evaluate the injured worker’s sworn testimony in its i...

...ed worker has a corresponding need for lawyerly assistance in preparing and giving his testimony, lest he be unduly disadvantaged under questioning by the lawyer for his potential adversaries, should he file a claim. We are at a loss to conceive how Section 440.30, interpreted as appellants would have it, could ever operate to secure an attorney’s fee for a worker whose deposition is being taken to determine whether he sustained a compensable wage loss....

...d worker. Yet appellants would have us say that the request informing the employer of the possible need for a deposition also terminates the worker’s right to representation at that deposition at the employer’s expense. This interpretation makes Section 440.30 nonsensically technical even by Chapter 440’s awesome standards of complexity....

...st had been made. The question therefore is put again: when, in a case where the wage loss request is controverted, is a “claim” filed with the Division sufficiently in accord with the provisions above to end the right to attorney’s fees under Section 440.30? We are compelled to the conclusion — -which we readily concede transcends the literal language of the statute — that the claim is filed when the carrier has notified the Division it is controverting the request....

...ntroversy in question. Should the worker decide at that point to seek some other unrelated benefit, of course, the regular filing of a claim with the Division would be required. Accordingly, we hold that a worker’s right to attorney’s fees under Section 440.30 ends, if a request for wage loss benefits has been controverted, when the notice of controversy is filed with the Division and the Division must begin its active management of the case....

...e party intending to use such evidence is first given a reasonable opportunity to depose the party or witness who is the subject of the surveillance. COMMENTS: 1979 Committee Note: This replaces rule 9, 1977 W.C.R.P. It is derived substantially from § 440.30, Fla.Stat.1979....

...ion or prosecution of a claim or a potential claim against a third-party tortfeasor. This court therein also determined that the requested depositions were generally outside the scope of discovery allowed in workers’ compensation cases pursuant to section 440.30, Florida Statutes (1989), in that they were not relevant to the remaining issue of average weekly wage....