Florida/Georgia Personal Injury & Workers Compensation

...purpose of that act as evidenced by its history does not logically nor reasonably require such a construction of section 92.231. Judge Downey, speaking for the court, accurately explained: It should be noted that the essential provisions of Sections 440.31 and 92.231 are quite similar. Nevertheless, the Supreme Court was interpreting a workers compensation statute when it said: *1186 It is our view, in accord with that of the commission, that the statutory provision, F.S.A. § 440.31, for the award of expert fees authorizes only the payment of fees to experts testifying in the case with reference to direct benefits of the claimant, and that the statute was never intended to cover the award of fees to witnesses appearing in behalf of attorneys who claim counsel fees payable under our act....

...In Zabawczuk, in interpreting a statute almost identical to the one applicable in the instant case, we held that the legislature did not intend for attorneys so testifying to receive an expert witness fee. We stated: [T]he statutory provision, F.S.A. § 440.31, for the award of expert fees authorizes only the payment of fees to experts testifying in the case with reference to direct benefits to the claimant, and that the statute was never intended to cover the award of fees to witnesses appearing in behalf of attorneys who claim counsel fees payable under the act....

...A testifying expert's witness fee might be assessed as costs, should the claimant prevail in a proceeding at which the expert testified. See Raska v. Glasgow Contracting, 588 So.2d 307 (Fla. 1st DCA 1991); § 440.34(3), Fla. Stat. (1991); see also § 440.31, Fla....

...able in view of the stipulation appearing in the record that the claimant's attorney was due an attorney's fee, the only question remaining being the amount. It is our view, in accord with that of the commission, that the statutory provision, F.S.A. § 440.31, [1] for the award of expert *804 fees authorizes only the payment of fees to experts testifying in the case with reference to direct benefits to the claimant, and that the statute was never intended to cover the award of fees to witnesses appearing in behalf of attorneys who claim counsel fees payable under our act....

...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....

...We certified the question to the Florida Supreme Court as one of great public importance; however, our investigation reveals that no petition for certiorari was filed, so jurisdiction could not vest in that court for review of our decision. [2] In Zabawczuk, the court held that section 440.31, Florida Statutes, providing for payment of expert witnesses fees, applied only to experts testifying with reference to direct benefits to the claimant, and was never intended to cover fees of witnesses testifying as to attorney's fees....

...the Mills dictum should not be followed. The seminal case in Florida, which is cited in most of the cases dealing with this question, is Robert & Company Associates v. Zabawczuk, 200 So.2d 802 (Fla. 1967), a workers' compensation case that held that Section 440.31, Florida Statutes (1967) was not intended to allow expert witness fees for lawyers who testify in compensation cases relative to a claimant's attorney's fees. It should be noted that the essential provisions of Sections 440.31 and 92.231 are quite similar. Nevertheless, the Supreme Court was interpreting a workers compensation statute when it said: It is our view, in accord with that of the commission, that the statutory provision, *1100 F.S.A. § 440.31, for the award of expert fees authorizes only the payment of fees to experts testifying in the case with reference to direct benefits of the claimant, and that the statute was never intended to cover the award of fees to witnesses appearing in behalf of attorneys who claim counsel fees payable under our act....

...witness *140 fees to be taxed as costs. Cf. Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla. 1968) and Robert & Company Associates v. Zabawczuk, 200 So.2d 802 (Fla. 1967) [holding under the analogous workers' compensation statute, Section 440.31, Florida Statutes (1967), which authorizes fees to "any expert witness ......

...It was also error to award the bills of psychiatrist, Dr. Greenberg, and psychologist, Dr. Schaeffer. There is no record of the appellee's ever requesting authorization for their treatment, of the doctors' complying with the filing requirements of Section 440.31 or of any excuse for these failures....

...We also reverse the deputy's award of expert witness fees to the two attorneys who testified on behalf of the claimant's attorney. The Florida Supreme Court has clearly established that attorneys who testify on the issue of attorney's fees in worker's compensation cases are not entitled to expert witness fees under Section 440.31, Florida Statutes (1983)....

...r decision in Zabawczuk as applying strictly to worker's compensation cases. We thus find Zabawczuk controlling in this case and reverse the deputy's award of expert witness fees. We certify the following question of great public importance: WHETHER SECTION 440.31, FLORIDA STATUTES (1983), AUTHORIZES THE AWARD OF EXPERT WITNESS FEES TO ATTORNEYS WHO TESTIFY ON THE ISSUE OF ATTORNEY'S FEES IN WORKER'S COMPENSATION CASES? REVERSED AND REMANDED. ERVIN and SMITH, JJ., concur. NOTES [1] Section 440.31, Florida Statutes (1983) provides as follows: 440.31 Witness fees....

...ndance 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. Alternatively, Shannon’s counsel requested payment of expert witness fees under section 440.31, Florida *1231 Statutes (2010)....

...on the basis that the Florida Supreme Court’s decisions in Robert & Co. Associates v. Zabawczuk, 200 So.2d 802 (Fla.1967), and Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351 (Fla.1987), prohibit the award of expert witness fees under section 440.31 when the subject matter of the expert’s testimony is the amount of attorney’s fees....

...’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....

...it. See Anderson v. Wagner, DPM, 955 So.2d 586, 590 (Fla. 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....

...Reimbursement for medical treatment is covered by Florida Statutes, Section 440.13, which, with certain exceptions, requires that a physician’s treatment be authorized by the employer/carrier. Expert witness fees and costs of prosecution of a claim, on the other hand, are recoverable under Florida Statutes, Section 440.31 or Section 440.-32, neither of which require prior “authorization” by an employer or carrier....

...As modified herein, we affirm the portion of the JCC’s order setting claimant’s average weekly wage. Claimant also argues that the JCC erred in requiring her to pay an expert witness fee to appellee, Ina Fletcher-Jones. We find merit in claimant’s argument and reverse on this point. Section 440.31 Florida Statutes provides in pertinent part: Each witness who appears in obedience to a subpoena shall be entitled to the same fees as witnesses in a civil action in the circuit court; however, any expert witness, as defined in Rule 1....