Langham: Costs, Good Faith and Chilling Effect
Tuesday, October 22, 2019 | 183 | 0 | min read
The Florida First District Court of Appeal recently affirmed the imposition of prevailing party costs in Coto v. Univision Sentry Casualty Co. The decision was a per curium affirmance that has no published opinion of the court.
Essentially, a per curium decision merely affirms the decision of the trial judge. It is a "written disposition," but provides little in terms of guidance for either the parties to the particular case or litigants in any future case. The propensity for per curium affirmance was recently discussed in The Volume of Appellate Litigation. Essentially, about 58% of workers' compensation appeals result in disposition by opinion, and 78% of those are by per curium disposition.
Occasionally, however, a district judge will provide some insight on a decision by writing a special concurrence that accompanies the decision. That is the case with Coto. It is a comment or exposition by the judge, explaining the reasoning or thoughts. It is not an opinion of the court.
This concurring opinion focuses upon the conclusion that the award of costs is not discretionary with the trial judge, and echoes an earlier policy statement by the court urging legislative intervention to amend the workers' compensation law.
The concurrence notes that the injured worker filed a petition seeking "alternative" treatment. This is common in workers' compensation in Florida. An injured worker might seek therapy or surgery, temporary total disability or temporary partial disability, or any number of other combinations. In this instances the injured worker "sought platelet-rich plasma (PRP) injections or, alternatively, additional surgery."
When the employer provided the PRP injections, the injured worker "immediately dismissed his petition for benefits seeking the additional surgery."
As is not uncommon, that "additional surgery" eventually also became necessary and was provided. In the world of medical care, it is not uncommon for physicians to strive for remediation of functional deficit through a series of treatments. Often treatments are attempted serially, in hopes of providing relief and restoration. It is not uncommon for that care to progress from less invasive and involved to more complex, such as surgery. In some instances surgery is seen as a last resort, to engage only if the less invasive are unsuccessful or provide incomplete results.
Thus, Coto eventually received the surgery that was once claimed but the petition for which was previously dismissed. The concurring judge concluded that the injured worker "appears to have acted in good faith throughout the process." However, because the petition for surgery was dismissed, the employer was the prevailing party on the claim. As a result, the injured worker "was nonetheless assessed $1,074.34 in costs."
The concurrence noted that the law in Florida is that such costs "under these types of circumstances" are "mandatory." This is true, according to the opinion, "even if manifestly unfair to the claimant." The concurrence cites Frederick v. Monroe Cty. Sch., in which the court concluded that the cost statute "imposes a chilling effect on future employees with meritorious claims” — the conclusion being that injured workers might avoid seeking various alternative benefits out of fear of such potential for costs.
The concurrence concludes, as a matter of policy, that "imposition of costs makes little sense and operates as a deterrent to those seeking benefits in good faith." Therefore, the concurrence reiterates the "the recommendation of the panel in Frederick 'that the Legislature consider whether an employee who files a petition for benefits in good faith should be subject to the imposition of costs.'”
The authority for imposition of such costs is in section 440.34(3), Florida Statues:
(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees.
The costs are thus seemingly associated with the invocation of the jurisdiction of this office. The operation of that section appears tied to "proceedings before a judge," and not necessarily to any and all requests made to an employer by an injured worker. The invocation of the jurisdiction of a judge of compensation claims is most often through the filing of a petition for benefits, which is delineated in section 440.192, Florida Statutes. This provides:
(3) A petition for benefits may contain a claim for past benefits and continuing benefits in any benefit category, but is limited to those in default and ripe, due, and owing on the date the petition is filed.
There will be those who may view the argument regarding costs as one of ripeness. That is, can both alternative treatments be "ripe, due, and owing" simultaneously? Or definitionally, does alternative pleading itself suggest some potential for one alternative benefit sought lacking ripeness? Or perhaps lacking the degree of ripeness that another might have?
There are, of course, alternatives for the injured worker. One might file a petition seeking one modality, such as PRP injections. It is likely that, if that benefit is denied, one or more physicians may be deposed regarding opinions of medical necessity, reasonableness, etc. In such deposition(s), a physician could also be asked about the potential for surgery: "assuming that the PRP is not successful in alleviating symptoms, would additional surgery be appropriate?"
It is possible, also, that care such as PRP injections might be of a value less than $5,000. Thus, it would be presumed appropriate for handling under section 440.25(4)(h), the "expedited hearing" section. If so, the claim could be heard quickly, without mandatory state mediation.
Certainly, the statute provides for hearings in this context to be brief, but also for the liberal construction of evidentiary rules "in favor of allowing" introduction of evidence. Thus, in the time it takes for mediation to occur as regards most petitions, the parties might discover and try an issue of nonsurgical care. If that resulted in attempting such care, the patient might file a second petition seeking the next alternative, such as "additional surgery."
The law includes absolutes for both employees and employers. While the concurring opinion is focused upon good faith and actively advocating for legislative change, the practitioners of workers' compensation will perhaps instead focus on the day-to-day of workers' compensation. They will live with the requirements of ripeness and the potential for costs described by law. They may be wary of pleading in the alternative for anything that is an "or."
That may lead to some delay in obtaining the ultimate resolution or care, which would be unfortunate for both the employee desiring recovery and the employer eager to have the employee return to work. Possibly, the engagement of the expedited hearing process might ameliorate some of that potential delay.
David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.