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What's Hot in Workers' Comp

District Court Holds that Reservation Over Attorney Fee Entitlement May Not Toll Statute of Limitations

Murphy v. Polk Cnty. Bd. of Cnty. Commissioners, Fla. 1st DCA, No. 1D2022-2752, Sept. 3, 2025

October 1, 2025

by Blake J. Hood

It seems there is no statute of limitations on the First District Court of Appeals’ issuing opinions interpreting the actual statute of limitations under Florida’s Workers’ Compensation Act. In yet another case addressing the time limitations for filing petitions for benefits under Florida Statutes Section 440.19, the First DCA held that a party’s purported reservation over attorney’s fees as part of a voluntary dismissal, before an employer/carrier accepts compensability of a claim or compensability is adjudicated on the merits, does not toll the statute of limitations. 

Generally, Florida’s Workers’ Compensation Act bars filing any petition for benefits beyond two years from the date the employee became aware that he suffered an accidental work-caused injury. A pending, legally sufficient petition for benefits filed within that two-year period, however, tolls that statute's running. 

In Murphy, the claimant alleged a work-related accident on September 10, 2016. The employer/carrier initially authorized some medical appointments but ultimately denied compensability of the claim in its entirety. The claimant then filed his first petition for benefits, to which the employer/carrier responded with a full denial and furnished no further benefits. The claimant then filed a notice of dismissal of the first petition for benefits, but he reserved jurisdiction over claims for entitlement to and the amount of attorney’s fees and costs.

Approximately two years later, the claimant filed a second petition for benefits, requesting indemnity benefits for the same accident date. The employer/carrier responded with a denial based on the expiration of the two-year statute of limitations. 

The employer/carrier then filed a motion asking the Judge of Compensation Claims to require the claimant to file a verified motion for attorney's fees and costs relating to the first petition for benefits under Rule 60Q-6.124(3), (5), FLA. ADMIN. CODE. The judge granted the motion, but the claimant failed to file any such verified motion for attorney's fees and costs. Consequently, the judge dismissed the claim for fees and costs from the first petition for benefits.

The claimant went on to file a third petition for benefits and a fourth petition for benefits, both of which were again denied by the employer/carrier on statute of limitations grounds. The claimant voluntarily dismissed the second and third petitions for benefits, and the judge dismissed the fourth petition for benefits on the same grounds, which prompted the appeal to the First District Court of Appeal.

The Murphy majority framed the central question as whether a claimant’s petition for benefits that is later voluntarily dismissed without the employer/carrier accepting compensability and providing benefits, or a judge adjudicating entitlement to compensation or medical benefits, continues to toll the statute's running if the claimant reserves jurisdiction over entitlement to attorney’s fee as part of the dismissal.

Writing for the majority, Judge Tanenbaum answered the question by analyzing the nature of attorney’s fees. He likened fees under Section 440.34 to a prevailing-party fee provision in civil litigation and concluded that a claim for workers’ compensation attorney’s fees is “ancillary to the claim” for benefits. In this case, once the claimant dismissed his first petition for benefits without securing any benefits or obtaining a successful adjudication on the merits, “there never was going to be a resolution or disposition of a claim for benefits that would give rise to an entitlement to the fees… .” Essentially, since the claimant could not possibly show that he secured benefits pursuant to the first petition for benefits, the fee claim in that petition for benefits was a nullity, even though he reserved jurisdiction over fee entitlement. Because the fee claim in the first petition for benefits remained “ancillary” and “collateral,” rather than one that had “ripened” through the securing of benefits or an adjudication on the merits, and two years from the accident date had elapsed before another petition for benefits was filed, all petitions for benefits after the first were time barred. 

Judge Thomas wrote a concurrence in which she agreed with the result only but not with the majority’s reasoning. For Judge Thomas, the majority’s comparison of fees under 440.34 to civil litigation fees was misplaced. She contended that whether a petition for benefits is “pending” is a purely jurisdictional question and should not require a fact-finding analysis to determine if a claim for fees has merit. In other words, “[w]hether the fee claim has merit or the claimant was a ’prevailing party’ has no bearing on the ’pending’ status of fee claim (because it is jurisdictional) or germane to the effect of a pending fee entitlement claim on the SOL.”

In contrast to the majority’s framing, Judge Thomas stated that the court’s disposition did not require analysis of whether a pending claim for entitlement to attorney's fees tolls the statute “because there was no pending claim for entitlement to attorney's fees when the second petition for benefits was filed well over two years after the accident and any indemnity or medical benefits were provided.” She highlighted prior case law (also cited by the majority), holding that once a petition for benefits is dismissed in its entirety (including any claims to fees and costs), it is regarded as if it were never filed. She then pointed to the procedural fact that the judge dismissed the first petition for benefits after granting the employer/carrier’s motion to compel him to file a verified motion for fee, which the claimant did not do. At that point, the first petition for benefits was dismissed in its entirety and treated as if it were never filed. 

Relying on other prior case law, she explained the difference between the concepts of a petition for benefits’ “pending” status in contrast to the concept of “tolling.” Only two tolling events exist under 440.19; the payment of indemnity benefits or the furnishing of medical care. Whether a petition for benefits is “pending” is simply a question of whether all issues raised by the petition for benefits are fully resolved or otherwise disposed of; once they are, the petition for benefits is treated as though it were never filed. In Judge Thomas’s view, since the claimant’s first petition for benefits was dismissed in its entirety and the second petition for benefits was filed more than two years after the accident, it and all subsequent petitions for benefits were untimely. 


 

What’s Hot in Workers’ Comp, Vol. 29, No. 10, October 2025, 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 © 2025 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.

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Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

Thought Leadership

The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

Thought Leadership

Pennsylvania Supreme Court to Review Whether Legal Malpractice Claims May Be Recast as Breach of Contract Claims

The Pennsylvania Supreme Court recently granted allowance of appeal to consider whether a plaintiff may pursue a breach of contract claim against an attorney based on allegations that the attorney failed to provide competent legal services. The issue is significant in professional liability litigation because it concerns whether a plaintiff may avoid the statute of limitations applicable to professional negligence claims by characterizing the alleged misconduct as a breach of contract. Antoine Poteat retained attorneys Gary Asteak and Nino V. Tinari to represent him in a criminal matter. After his conviction was subsequently overturned through a Post Conviction Relief Act proceeding, Poteat filed suit against his former attorneys alleging that they breached their retainer agreements by failing to provide competent legal services. The attorneys argued that the claims sounded in professional negligence, rather than breach of contract, and were therefore time-barred. The trial court dismissed Poteat’s complaint, but the Superior Court, sitting en banc, reversed. The Superior Court held that the gist-of-the-action doctrine did not bar Poteat’s breach of contract claim because the alleged failure to provide competent legal services could constitute a breach of the parties’ agreement. The Court further held that a legal-services agreement contains an implied duty requiring an attorney to provide competent legal services, even where the agreement does not contain an express provision requiring such services. The Pennsylvania Supreme Court granted review in July 2026 and will consider whether the Superior Court’s decision conflicts with Pennsylvania precedent distinguishing contract and tort claims, including Bruno v. Erie Insurance Co. The Supreme Court will also address whether a plaintiff may maintain a breach of contract claim based on an implied duty to provide competent legal services without identifying a specific contractual provision that was breached. The Supreme Court’s decision could have significant implications for professional liability litigation in Pennsylvania, particularly where plaintiffs seek to characterize claims arising from alleged professional negligence as contractual claims.