Florida’s workers’ compensation system was created to be self-executing. The legislature’s intention was for the Employer/Carrier and the injured worker, or claimant, to resolve any disputes among themselves; utilizing the workers’ compensation courts, otherwise known as the Office of the Judges of Compensation Claims, as a last resort and not as the first step in dispute resolution. The law requires that a claimant attempt to obtain any benefits the claimant believes to be due by first contacting the Employer/Carrier and requesting the provision of the benefit. Fla. Stat. §440.191. This is called a “good faith effort”. Following the “good faith effort,” and if a dispute still exists, the claimant is authorized to file a petition for benefits, essentially asking the Judge of Compensation Claims (JCC) to decide the issue and determine if the claimant is entitled to the requested benefit.
Pursuant to Florida Statute §440.192(4) and Rule 60Q-6.115, a petition for benefits must include a certification or statement by the claimant or his attorney that a “good faith effort” was made to resolve the dispute and that the claimant or attorney was unable to resolve the dispute with the Employer/Carrier prior to the filing of the petition for benefits. Fla. Stat. §440.192 (4). Prior to 2012, if a claimant filed a petition for benefits and failed to make a “good faith effort,” the Employer/Carrier could file a motion to dismiss the petition for benefits based solely on the lack of “good faith effort.” More often than not, if no “good faith effort” was made, the offending petition for benefits was dismissed by the JCC without the need for a costly evidentiary hearing. Unfortunately, the infamous Blake-Watson case, in which the First DCA opined, “the statute governing procedure for resolving benefit disputes does not independently give the JCC authority to “go behind” attorney’s representations of “good faith effort” to resolve a dispute,” was released. Palm Beach County School District & F.A. Richard & Associates v. Beverly Blake-Watson, 91 So. 3d 176 (1st DCA, 2012), F.S. 440.192.
In Blake-Watson, the claimant filed a petition for benefits which included a claim for Employer/Carrier-paid attorney’s fees and costs. The Employer/Carrier provided some benefits but then moved to dismiss the petition for benefits, arguing the claimant had not made a “good faith effort” to resolve the dispute before filing the petition for benefits, as required by Florida Statute §440.192(4). The claimant argued the petition for benefits stated a “good faith effort” was made and the JCC has no jurisdiction to look behind the statement of “good faith” to determine its veracity. The First DCA ruled the JCC must take the petition for benefits at face value and the JCC may not grant a motion to dismiss a petition for benefits for lack of “good faith effort” if the statement alleging a “good faith effort” was made is on the petition for benefits; even if no “good faith effort” was actually made.
Many assumed that due to the Blake-Watson decision, the Employer/Carrier would now be forced to defend against petitions for benefits which did not actually comply with, but merely alleged compliance with, the rules and the specificity requirements of Florida Statute §440.192(4). In other words, many assumed the Employer/Carrier could no longer file a motion to dismiss based on lack of “good faith effort.” In claims wherein the Employer/Carrier is providing all due benefits but a petition for benefits is nevertheless filed, for many times benefits already provided to the claimant by the Employer/Carrier, the aforementioned assumption is more troubling. Fortunately, there is still a way to achieve the desired result of the offending petition for benefits being dismissed, or in most cases voluntarily withdrawn, due to lack of “good faith effort.”
In Blake-Watson, the Court acknowledged that Rule 60Q-6.125, the administrative code provision governing sanctions in workers’ compensation proceedings, arguably permitted the Employer/Carrier to seek sanctions against the claimant for failure to comply with the workers’ compensation statute which requires that a petition for benefits include a certification that the claimant has made a “good faith effort” to resolve the dispute. However, for a petition for benefits to be dismissed pursuant to the rule governing sanctions, the Employer/Carrier must comply with the procedural requirements of the rule.
A motion for sanctions may be filed pursuant to Rule of Procedure for Workers’ Compensation Adjudications 60Q-6.125(1) due to lack of “good faith effort”; however, to be successful, the Employer/Carrier must ensure the following criteria are met:
(a) The motion for sanctions must be made separately from other motions or requests;
(b) The motion for sanctions must describe the specific conduct alleged to violate the rules or
(c) The motion must be served but not be filed unless the petition for benefits is not withdrawn or
appropriately corrected within 21 days after service of the motion.
If warranted, the JCC may award the cost of the proceeding and attorney’s fees incurred in presenting or opposing the motion to the prevailing party. The JCC may enter an order describing the specific conduct that appears to violate the rule and directing an attorney or party to show cause why sanctions should not be imposed. Failure to follow the Rules of Procedure for Workers’ Compensation Adjudications, may subject a party to sanctions which include striking of claims, petitions for benefits, defenses, or pleadings, imposition of costs or attorney fees, or other sanctions as the JCC may deem appropriate. As such, if the Employer/Carrier is certain that no “good faith effort” was made, there is an opportunity to obtain dismissal of a petition for benefits and be awarded attorney fees and costs.
A motion for sanctions may seem drastic; however, keep in mind that when a petition for benefits is filed alleging “good faith effort” where none has been made, a material misrepresentation to the JCC has occurred. By filing a petition for benefits or presenting argument at a hearing, the claimant or claimant’s attorney is certifying that the petition for benefits is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needlessly increase in the cost of litigation and that the allegations and other factual contentions are true and have evidentiary support. Florida Rule of Procedure for Workers’ Compensation Adjudications 60Q-6.125(2). This includes the Certificate of Good Faith in which the claimant alleges that the Employer/Carrier was contacted in good faith.
It has been our experience that when no “good faith effort” is made prior to the filing of a petition for benefits, the benefit usually has already being provided and the claim is moot. As such, in these cases, an assumption that the claimant is attempting to needlessly increase litigation to make settlement more appealing or to argue for Employer/Carrier-paid attorney fees and costs in the future is reasonable, thus the claimant is once again blatantly acting contrary to the Rules.
We have found the service of a motion for sanctions to be very successful and the offending petition for benefits is usually withdrawn or dismissed prior to filing of the motion for sanctions with the JCC. Remember, the offending party must be given 21 days to correct its error, i.e., dismiss the petition for benefits. In our experience, no attorney wants it pointed out to the JCC that he or she blatantly made a misrepresentation and will usually voluntarily dismiss the offending petition for benefits before the 21 day deadline. Proper use of a motion for sanctions can also change the way claimants’ attorneys handle future claims, i.e., the claimants’ attorneys will send a “good faith effort” prior to the filing of a new petition for benefits thus saving the Employer/Carrier from increased litigation costs when a claimed benefit is not at issue and benefits have not been denied.
- Ensure the motion for sanctions deals only with the issue of lack of “good faith effort”; if there are any other grounds for seeking dismissal such as lack of specificity or major contributing cause, file a separate motion to dismiss.
- Ensure the motion for sanctions specifically states the offense committed by the claimant, i.e the claimant alleged a “good faith effort” was made when no such effort was made.
a. We like to send a Request to Produce along with the motion for santions asking for any evidence of a “good fatih effort.” As the claimant has 30 days to respond to the Request to Produce, we afford extra time to withdraw the petition for benefits. This allows us to prove to the JCC that we truly used a “good faith effort” to resolve this issue prior to the filing of the motion for sanctions.
- Allow the claimant a minimum of 21 days or more to rectify the situation and withdraw or otherwise dismiss the petition for benefits at issue.
Michele Bachoon is an attorney at Walton, Lantaff, Schroeder and Carson. She focuses her practice on workers’ compensation and insurance coverage disputes including first-party property, premise liability and general liability. She is also certified by the State of Florida to provide continuing education credits to Florida insurance personnel. She can be reached at firstname.lastname@example.org.
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