Claimant Must 'Willfuly' Ignore Order to Tax Costs

Thursday, May 3, 2012 | 0

First, my apologies for the lack of posts.  I’ve been in my ‘Comp Cage working feverishly on another appeal.

Now back to business. Some time ago I proposed that the only way to enforce an order to tax costs against a claimant under Chapter 440 is to seek a dismissal of the pending petitions. This is what I wrote in a prior post:

“. . . an order to tax costs against a Claimant can be enforced, albeit in a procedural way.  Until claimant complies with the order–that is, pay back the E/C its taxable costs–the judge of compensation claims can dismiss any pending claim or suspend benefits.  There is even case law to back this up.   The statute may not give the employer-carrier (E/C) a specific right to collect taxable costs, but it does give the judge of compensation claims powers to freeze the claimant out of the courthouse.”

My thought process was that through S. 440.24(4), E/C could still enforce an order to tax costs. This is still possible, but the 1st District Court of Appeal puts a big caveat before such a dismissal can be achieved.

In Jones v. Royalty Foods, Inc., the claimant suffered a compensable left shoulder injury.  After some treatment he sought treatment for his right shoulder.  The E/C denied compensability of the right shoulder and claimant filed a petition. The parties went to a trial and the Judge found in favor of the E/C. The E/C then sought taxable costs and the Judge ordered claimant to reimburse the E/C costs of more than $7,000.

Claimant then filed subsequent petitions for the compensable left shoulder. The E/C filed a motion to dismiss for claimant’s failure to pay the order to tax costs per S. 440.24(4).  At the hearing for the E/C’s motion, the claimant testified that he was homeless and without any forseeable income. The Judge found that claimant was not willfully refusing to comply with the order.  He just could not afford to.

Despite this finding, the judge still dismissed claimant’s pending petitions. The 1st DCA did not like this.

The court previously ruled that a judge cannot dismiss a petition unless the claimant “wilfully” refuse to comply with the order.  In this case, the claimant plead poverty and the judge believed him.  The correct ruling should have been to deny the motion and allow the petitions to stand.

So where does this leave E/Cs?  I still think S. 440.24(4) can work.  An E/C must first ascertain whether claimant is working and may even request wage records or tax returns.  It might even be prudent to wait to file a motion to tax costs until you know that the claimant returned to work.  Seeking taxable costs where claimant is still out of work because of compensable portion of his injuries, or because he may have been laid off, is just not worth it. 

With this case, I guarantee every claimant will plead poverty when an E/C seeks taxable costs.  The key is to have evidence that you know he can pay those costs.

WorkCompCentral subscribers may download the 1st DCA's opinion by clicking the case title in the sidebar.

Michael Rabinowitz is a shareholder at the Banker Lopez Gassler workers' compensation defense firm in Tampa. This column was reprinted with his permission from his Workers' Comp Corner blog.