Ruling by Florida Appeals Court Could Expand
Protections for Workers’ Comp Claimants
BY SAL RICHARDSON
BY FLORIDA LAW, unsuccessful parties in court cases are held responsibleforthelitigation and
related costs of the prevailing party—
and a recent ruling by Florida’s First District Court of Appeals raises questions
about whether that statute might deny
injured workers their right to bring suit
in Workers’ Compensation cases. The
ruling may also have implications for
insurers seeking to collect from those
On Oct. 5, the First District Court
of Appeals called on the Florida State
Legislature to consider just such a
matter after the former ruled in Frederick
v. Monroe County Sch. Bd.
In that case, the claimant, Gina Frederick, voluntarily dismissed her claim for
permanent total-disability benefits when an
expert medical advisor testified that she was
not permanently disabled. Because the insurance carrier technically won the case,
Frederick was required to pay the defendant’s
litigation costs—but the court deemed the
assessment and related consequences unfair.
Underlying the court’s action may be the
belief that imposing such costs could ultimately deny potential claimants access to courts:
A claimant’s inability to pay his or her employer’s legal fees, if they lose in court, would
discourage them from filing additional claims.
Additionally, in Florida Workers’ Comp
cases (as in many states), claims are made
for specific medical or indemnity benefits.
Regardless of whether a benefit claimed is
eventually denied or provided, additional
benefits related to that same accident can be
requested in the future; these benefits can
be claimed in aggregate or individually and
can take place throughout the life of a claim.
For example, if a worker hurt his right
knee at work, lost time on the job and alleges he was not compensated properly for
it, he could file one claim for those past-due
wages (indemnity) and a separate claim for
treatment of back pain due to his accident
(medical). At trial, a judge of compensation
claims would rule on each issue on its own
merit. The judge could find that one benefit
is due to the claimant and not the other.
Assume the worker lost one or both of
the prior issues at trial (past-due wages or
treatment of the back), and now must pay
the litigation costs to his employer or the
insurer. Before the worker pays, his left
knee starts to hurt, and he files a new
claim for related medical treatment.
If he still hasn’t paid the court costs that
stemmed from his first claim, one might
conclude that he shouldn’t be entitled to
more benefits—at least until he pays what
he owes. In that case, the worker may
have been denied his constitutional right
under state law to access the courts.
It’s easy to see why Workers’ Comp
issues in Florida might be intertwined
with the state’s constitutional protections.
Beyond the obvious disparities between
the financial resources of employees versus
those of their employers and the employer’s insurers, the construction of the state’s
statute appears somewhat arbitrary.
In Frederick, the court seems to ask the
legislature to develop criteria for determin-
ing that a claim has merit or technically is
brought in “good faith.” In such cases,
if the claimant loses, he or she would be
excused from paying litigation costs of
the other party. However, that seems far
easier said than done.
Sal Richardson is
Managing Partner for
Litigation at Adelson,
Testan, Brundo & Jimenez,
a national law firm whose
primary focus is in the
civil defense of Workers’
Compensation claims and
related matters. He can be reached at