E/Cs can Seek Reimbursement of Costs of Depositions and IMEs

Tuesday, April 19, 2011 | 0

By Michael Rabinowitz
Banker Lopez Gassler

While the courts still have not found a way for an employer/carrier to collect an Order to Tax Costs, the litigation continues as to whether an E/C has a right to tax costs. 

In the latest case, the 1st District Court of Appeals finds that an E/C can recover all reasonable costs, not just deposition costs, but also independent medical examiner costs.  The court also goes through quite a few other arguments to s. 440.34(3).

In Punsky v. Clay County Board of County Commisioners, Claimant appealed an Order to Tax Costs where the judge of compensation claims ordered him to pay almost $9,000 in costs after losing his claim at Final Hearing. He argued various statutes as follows:

   1. The E/C is limited to just $250 in cost recovery.  See Section 440.19(6).
   2. The E/C cannot enforce a monetary cost award.  They can only dismiss a new Petition if Claimant doesnt reimburse costs.
   3. That Claimants access to courts, under the Florida Consitution, is infringed upon by s. 440.34(3).
   4. That E/Cs can only be reimbursed for depositions, not IME costs.

Let me address each point quickly. Firstly, the court found that an E/C can collect more than $250 in costs from a claimant.  Section 440.19(6) only refers to claimants who seek relief against an employer in tort. If they lose, the costs are capped at $250 and taken from future workers' compensation benefits.  This case was not a tort case, as claimant brought his suit in workers' compensation court.

Secondly, while the 1st DCA found that the Section 440.34(3) is not enforceable through rule nisi, they have ruled an E/C can seek enforcement through circuit court.  However, this has nothing to do with preventing an E/C from seeking costs in the first place.

Thirdly, claimant never presented evidence at the costs hearing that s. 440.34(4) infringes on his constitutional rights.  The Court gets out of answering this interesting question since there were no arguments for made to the JCC.  However, I would think since the 1st DCA already ruled that Section 440.34(3) is enforceable they would still find it constitutional today.

Finally, and good news for E/Cs, Section 440.34(3) allows a prevailing party to collect all reasonable costs. As we know, the word reasonable gives the judge discretion to decide, so IME costs can be included in Motion to Tax Costs, not just deposition costs.  In fact, in Punsky the E/C submitted costs higher than $10,000, but the JCC reduced them to the current $9,000 amount. Obviously, there where cost that the JCC thought were unreasonable.

IME costs can be a huge burden for an E/C, so it is comforting that the court includes such costs in an E/Cs right for recovery. However, I would interpret reasonable costs to include other litigation expenditures like surveillance (that is used at trial), postage, and copies. Transportation could be included if claimant needed mileage reimbursement or physical transportation to the IME.

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