E/C Cannot Tax Costs for Winning a Few Days of TTD

Monday, April 12, 2010 | 0

By Michael Rabinowitz
Banker Lopez Gassler

File this one under obvious decisions: Claimant asserts temporary partial disability benefits for a four month period.  The employer/carrier asserts that claimant is not entitled to any temporary partial disability payments since he voluntary limited his income during the entire time. After a trial, the Judge found that claimant was entitled to the entire period of TPD payments except for one week (presumably Christmas vacation).

The E/C then filed a motion to tax costs under s. 440.34 for winning the one week of denied benefits.

What do you think happened?

Of course the judge denied the motion and of course the 1st District Court of Appeal affirmed.  The reasoning being obvious.  In Sandvik, Inc. v. Decoursey, the court found that the E/C was not a “prevailing party” as defined by s. 440.34.  The E/C alleged an affirmative defense of voluntary limitation of income and has the burden to prove it.  The judge found that claimant met his burden except for one week of TPD payments.  This does not mean that the E/C “won.”

This is an easy decision to accept.  When you decide to pursue a motion to tax costs against a claimant, it is best to be sure you are first a “prevailing party”.

However, what about claims where the issues are split?  Where the E/C may lose an indemnity issue but win an important medical issue?  I believe the courts will look at each claim and sparse out the costs associated to whomever wins that particular claim.

The ability to tax costs is an effective tool for settlement leverage.  And, just like claimant’s, E/C’s must be sure they have entitlement in their back pocket before they seek amount.

<i>Michael Rabinowitz is an attorney with the Banker Lopez Gassler law firm in Tampa. This column was reprinted with his permission from the firm's blog, Workers' Comp Corner, which can be found here: http://workerscompblog.wordpress.com</i>