Be careful what petitions you file.

Although the case is not final yet, the First District Court of Appeal (First DCA) recently determined that regardless of whether a petition was filed in good faith or not, if the petition is voluntarily dismissed, the Employer/Carrier become the prevailing party and are therefore entitled to recover the reasonable costs necessary to defend against the petition.

This case involved a claimant that filed a petition requesting permanent total disability benefits based on the opinions of her authorized treating physician that she would be unable to return to work whatsoever. Thus, at the time the petition was filed, there were valid, admissible medical opinions to support the claim. However, the Employer/Carrier contested the issue of permanent total disability. There was a conflict in the medical testimony as to whether or not the claimant was capable of returning to work or not. As a result, an expert medical advisor (EMA) was appointed and determined that the claimant was capable of returning to work. Since an EMA's opinions are binding upon the parties absent clear and convincing evidence as to why they should not be trusted, the claimant voluntarily dismissed the petition prior to the final hearing. $11,834.35 in prevailing party costs were awarded to the Employer/Carrier and the claimant appealed the award arguing that since the petition was filed in good faith, it would be unfair to tax costs against her for the ultimate dismissal of the petition and that the result would deprive her of her right to access to the courts under the Florida Constitution.

The First DCA ultimately strictly applied section 440.34(3) of the Florida Workers' Compensation Law and affirmed the award of prevailing party costs to the Employer/Carrier. Importantly, the First DCA also noted that the arguments raised by the claimant were reasonable, but that they were constrained from reversing the Judge of Compensation Claims' decision because the law had been appropriately applied. The Court also specifically recommended that the Legislature consider whether to amend the statute as it exists.

With the First DCA suggesting the law should be changed, will the Legislature take action? Stay tuned.

To view the case in its entirety, visit: http://opinions.1dca.org/written/opinions2012/10-05-2012/12-0251.pdf

Brian Tadros

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