Although claimants have a statutory right to file petitions for benefits, a recent order imposing sanctions on a claimant’s attorney highlights the non-frivolous litigation and ‘good faith’ limitations imposed on that statutory right.
While not a district court opinion, this judge of compensation claims’ order addresses an ever-increasing source of frustration: filing and maintaining petitions for benefits without good faith efforts to either resolve these disputes before filing or to dismiss petitions once the disputes are resolved. In this case, the claimant filed five petitions for benefits within 12 weeks. The employer/carrier filed a motion for sanctions, arguing that either the benefits requested had already been provided before the petitions were filed or benefits were timely provided and the petitions were frivolously maintained thereafter.
Florida’s Workers’ Compensation Act contends with such concerns in the following sections:
§ 440.192(4), FLA. STAT. (2023): “The petition must include a certification by the claimant or, if the claimant is represented by counsel, the claimant’s attorney, stating that the claimant, or attorney if the claimant is represented by counsel, has made a good faith effort to resolve the dispute and that the claimant or attorney was unable to resolve the dispute with the carrier.”
§ 440.32(1), FLA. STAT. (2023): “[i]f the judge of compensation claims…determines that the proceedings in response of such claim…have been instituted or continued without reasonable ground, the cost of such proceedings shall be assessed against the party who has so instituted or continued such proceedings.” (Emphasis added.)
§ 440.32(2), FLA. STAT. (2023): “[i]f the judge of compensation claims…determines that the proceedings were maintained or continued frivolously, the cost of the proceedings, including reasonable attorney’s fees, shall be assessed against the offending attorney.” (Emphasis added.)
§ 440.32(3), FLA. STAT. (2023): “[e]very pleading, motion, or other paper…shall be signed by at least one attorney of record” and that such “signature of an attorney constitutes a certificate by the signer that the signer has read the pleading…; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law.” This section further provides, “[i]f a pleading…is signed in violation of this section, the judge of compensation claims..., upon motion or upon its own initiative, shall impose upon the person who signed it an appropriate sanction.”
As an illustration of the sanctioned conduct in this case, the first of the five petitions in dispute were filed fewer than 24 hours after a “good faith” email was sent. Claimant’s counsel filed a notice of appearance on March 20, 2024, while also sending a substitution of counsel to the claimant’s prior counsel. On the same day, she sent an e-mail at 5:41 p.m., in “good faith,” requesting two doctor appointments. The very next day, March 21, 2024, at 3:12 p.m., she filed the petition requesting the appointments. On March 26, 2024, the insurance carrier filed a response, approving the request for authorization, scheduling the appointment and payment of the two doctor appointments. Then on April 1, 2024, and April 2, 2024, the employer/carrier’s counsel sent claimant’s counsel e-mails advising of the two appointments.
When claimant’s counsel did not dismiss the petition, employer/carrier’s counsel served her with a motion for sanctions and afforded her the 21-day safe harbor period in order to cure the issue, in accordance with Rule 60Q-6.125(3). She did not dismiss the pending petitions, however, as she wanted to review the payout ledger and speak to her client. On June 26, 2024, employer/carrier’s counsel then emailed claimant’s counsel the actual medical records from the appointments at issue along with a payout ledger. Yet, it was not until July 16, 2024, that claimant’s counsel dismissed the petition.
The judge of compensation claims found that claimant’s counsel’s single e-mail, sent after business hours, the day before filing the petition during business hours, “does not constitute a good faith effort to resolve the matter.” He further found that claimant’s counsel frivolously maintained the petition well after the carrier provided the requested benefits.
Of note is the judge’s determination that the claimant himself was not in violation of the statute under § 440.32(1), which involves the party instituting or continuing the claim without reasonable grounds. Rather, claimant’s counsel alone was responsible under § 440.32(2) and § 440.32(3) and, therefore, personally bore responsibility for the costs of the proceedings, including reasonable attorney’s fees.
What’s Hot in Workers’ Comp, Vol. 28, No. 10, October 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.