Can a JCC Dismiss a PFB if Claimant Fails to Pay Order to Tax Costs?

Tuesday, May 3, 2011 | 0

By Michael Rabinowitz
Banker Lopez Gassler

If you read this blog regularly, you know my mission to determine whether an employer/carrier's right to tax costs against Claimant is “toothless.” There have been cases where the 1st District Court of Appeals affirmed the right to tax costs, and a case where the Court confirmed that E/C’s cannot seek enforcement of an order to tax costs through rule nisi, like a Claimant can.   An E/C can seek enforcement of an order through a court of appropriate jurisdiction.

My thoughts were that an E/C could seek some level of “enforcement” through S. 440.24(4) which gives the judges of compensation claims power to dismiss a pending petition for benefits if claimant does not comply with the Judge’s order.  The statute is clear in its regard.  The question is: would the 1st DCA enforce it?

The answer is. . . almost?

In Hernandez v. Palmetto General Hospital, the JCC ordered Claimant to reimburse the E/C its costs for dismissing her petions for benefits. After failing to pay the order, the E/C sought dismissal of claimant’s pending PFBs under S. 440.24(4).   Claimant alleged she could not pay the order because of her finances.  The JCC entered another order and set an evidentiary hearing.

There was some confusion as to whether claimant knew about the evidentiary hearing, but nevertheless she did not show for the hearing.   Claimant alleged that she thought the JCC canceled the hearing.  The JCC dismissed the PFB’s with prejudice, which means Claimant could never bring her claims back again.  Ouch.

The 1st DCA reversed, ruling that this was an unreasonable sanction against Claimant that was disproportionate to her transgression, namely missing a hearing that she may or may not have not know about.  The Court found that while the JCC can bring sanctions to Claimant, an order dismissing her PFBs with prejudice was unfair.

The second reason for the reversal–and one that I have been hoping the Court took up–is Section 440.24(4), which states as follows:

In any case wherein the employee fails to comply with any order of a judge of compensation claims within 10 days after such order becomes final, the judge of compensation claims may dismiss the claim or suspend payments due under said claim until the employee complies with such order. . .

Unfortunately, the E/C did not argue that s. 440.24(4) was a good reason for the JCC to dismiss the PFBs with prejudice.  Therefore, the 1st DCA did not feel it appropriate to actually explore the statute and make a definitive ruling.

What the Court did was skirt real close to s. 440.24(4) without affirming or denying the statute.  They found that s. 440.24 does not give the JCC authority to dismiss a PFB with prejudice.  The language is clear that dismissal is an option for the JCC (see the word “may”) “until the employee complies with such order.”   The statute does not support a dismissal with prejudice, just dismissal until the Claimant pays the E/C its costs back.

I am interested to see a case where claimant’s statute of limitations is about to pass and she has not yet paid the order to tax costs.  Would the Court allow a dismissal then?   At least the Court drew a boundary upon s. 440.24(4), so E/C’s know that a dismissal cannot be final.

Either way, we have to wait even longer to see if an E/C has any chance of enforcing an order to tax costs.  Maybe the Legislature will take it up?

Michael Rabinowitz is an attorney for the workers' compensation defense firm of Banker Lopez Gassler in Tampa. This column was reprinted with his permission from his blog, at http://workerscompblog.wordpress.com/