Does 440.25(4)(i) apply to attorney's fees/costs claimed in petitions?
Recently, the First District Court of Appeal (“DCA”) answered this very question in Limith v. Lenox on the Lake. The condensed version is that 440.25(4)(i) which permits dismissal of issues due to lack of prosecution, does apply to claims for attorney’s fees/costs raised in petitions.
The issue came before the DCA in the following context. At the Judge of Compensation Claims (“JCC”) level, there was an old petition that was voluntarily dismissed with reservation on fees/costs. More than one year following the voluntary dismissal and reservation, the Employer/Carrier (“E/C”) filed a Motion to Dismiss (“MTD”) the outstanding attorney’s fees/costs issues for lack of prosecution. The JCC denied this motion. Had it been granted, the statute of limitations (“SOL”) would have run on the claim barring the filing of any further claims. As was inevitable, once the motion was denied, the claimant filed a petition for a return medical appointment. The E/C asserted that the claimant’s petition requesting a return appointment should be denied based on a SOL defense. The JCC rejected the E/C’s SOL defense, but ultimately determined that the claimant was not entitled to a follow up medical appointment on the merits. The claimant appealed the denial of the medical appointment and the E/C appealed the rejection of the SOL defense.
In order to address the E/C’s appeal regarding the SOL defense, the DCA had to look back to the denial of the E/C’s earlier MTD for lack of prosecution. 440.25(4)(i) states:
“A judge of compensation claims may, upon the motion of a party or the judge’s own motion, dismiss a petition for lack of prosecution if a petition, response, motion, order, request for hearing, or notice of deposition has not been filed during the previous 12 months unless good cause is shown. A dismissal for lack of prosecution is without prejudice and does not require a hearing.”
The DCA determined that denial of the motion without providing any rationale explaining what “good cause” was shown was reversible error. The JCC’s failure to exercise discretion as provided for above resulted in the potential indefinite tolling of the SOL. Thus, the DCA reversed, instructing the JCC to determine whether the claimant can show good cause that would be sufficient to maintain the order denying the MTD for lack of prosecution. The JCC was further instructed that if no good cause exists, an order nunc pro tunc (retroactive order) should be entered granting the MTD for lack of prosecution. By extension, then the rejection of the SOL defense on the subsequent petition would need to be reversed and a new order entered denying the petition based on the SOL having run. However, if on remand good cause is found, then the merits of the claimant’s appeal would need to be addressed. Having said this, the DCA determined that the record supported the JCC’s finding that the claimant’s compensable injury had fully healed and no further medical care was required. Thus, even if good cause was shown to prevent dismissal of the attorney’s fees/costs claimed in the older petition, the JCC was ordered to simply enter an order indicating that the SOL had not run and did not have to re-address the issue raised in the subsequent petition as the JCC’s ruling was affirmed.
The entire opinion can be viewed at https://edca.1dca.org/DCADocs/2014/3761/143761_DC13_04172015_093630_i.pdf