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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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Thought Leadership

Appellate Division Reversed Trial Judge's Orders Granting a Plaintiff's Section 40 Summary Judgement Motion

In Haskins v. Casey, et al., the plaintiff Dane Haskins worked for defendant Ekornes, Inc. (Ekornes) as a material handler. In June 2021, he filed a workers’ compensation claim petition for benefits due to a left shoulder injury in December 2020. He then resolved his workers’ compensation claim in November 2022 under an Order Approving Settlement. In January 2023, he filed a lawsuit against Ekornes and later amended to add additional claims and name other defendants, including the Ekornes president, chief financial officer, and director of human resources. In May 2025, a second amended complaint alleged that after he filed the workers compensation claim, Ekornes placed him on leave under the Family and Medical Leave Act (FMLA), denied his request for a work accommodation, and ultimately terminated him from employment in December 2021. He pleaded several causes of action asserting violations of the New Jersey Law Against Discrimination (LAD) as well as fraudulent concealment and wrongful discharge. The plaintiff then moved for partial summary judgment, seeking an order enforcing Section 40 of the Workers’ Compensation Act (WCA) as well as summary judgment on his FMLA claims. The defendants opposed the motions and cross-moved for summary judgment on the FMLA claims. After arguments, the court entered an order in December 2025, denying the FMLA motion and cross motion and granting the plaintiff’s Section 40 motion. In the order, the court permitted the plaintiff to pursue compensatory damages at trial in connection with the bodily injury claim. The court also allowed the plaintiff to present evidence of any workers’ compensation benefits to support his claim. The court then denied the defendant's subsequent reconsideration motion in February 2026. The defendants that appealed the Section 40 aspect of the orders. In reviewing the appeal de novo, the Appellate Division rejected the plaintiff's argument that the work-related injury arose out of his discrimination claims under the LAD. The plaintiff argued that he should be able to pursue a personal injury claim as a part of his LAD claim, noting that the employer’s compensation carrier would be able to assert a lien against any recovery against his LAD claims. In distinguishing between the Richter vs. Oakland Board of Education, 246 N.J. 507 (2021) case, in which the Court found that any recovery would be subject to a Section 40 lien as the allegation was that the defendants failed to accommodate her pre-existing diabetic condition, which resulted in bodily injury. In this case, the Appellate Division indicated that there was no bodily injury caused by Ekornes’ failure to accommodate a pre-existing disability. Rather, the shoulder injury was a result of a workers compensation claim, for which he received appropriate benefits previously. The Appellate Division noted that if the plaintiff was successful in proving his LAD claims, he would be entitled to damages caused by the discriminatory discriminatory conduct such as lost wages and emotional distress damages and that there will be no Section 40 lien. In addition, the Appellate Division disagreed that the petitioner could present evidence about and seek damages for his shoulder injury at trial. Although the petitioner argued that a defendant who retaliated against an employee for filing a workers’ compensation claim should not benefit from the exclusivity provision of the WCA, the Appellate Division noted that the Legislature did not include this type of scenario in the statue nor did any of the case law recognize this type of claim as a remedy. As such, the Appellate Division reversed the December 2025 order granting the the plaintiff’s Section 40 summary judgment motion as well as the February 2026 reconsideration motion order. The Appellate Division noted that they did not intend to limit the plaintiff in his pursuit of his other claims on under the LAD, FMLA, and workers’ compensation retaliation causes of action.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.