.

Defense Digest

Attorneys Behaving Badly: Sanctions, Attorney’s Fees and Costs in Florida Workers’ Compensation Claims

Defense Digest, Vol. 29, No. 3, September 2023

September 1, 2023

by Heather Byrer Carbone

Key Points:

  • Florida workers’ compensation law allows for sanctions.
  • While Judges of Compensation Claims are generally hesitant to award sanctions, there are very limited circumstances where they will do so.

The vast majority of the time, the Florida workers’ compensation bar is a model of professionalism. There are more than 100,000 attorneys in the state of Florida, but the workers’ compensation bar is still small enough that everyone gets to know each other after practicing for a few years. They ask about kids and families. They celebrate weddings and share vacation pictures on social media. They are empathetic and move a deposition if someone is sick. Attorneys on opposite sides are friendly when encountering one another at conferences, seminars, and Inns of Court meetings. And it’s because of this genuine congeniality that most cases move through the system without overly antagonistic litigation. But there are always a few outliers. Judges of Compensation Claims (JCC) occasionally have to struggle with how to handle repeat violators as Florida workers’ compensation law does not have a bad faith clause. So how does a JCC send a message with some teeth when an attorney is unprofessional, overly aggressive, unresponsive, or hostile? Case law from the last few years has given us some guidance on what the First District Court of Appeals has found to be within the jurisdiction of the JCCs.

Florida workers’ compensation law allows for sanctions pursuant to DOAH Rule 60Q-6.125 by striking claims, petitions, defenses, and pleadings, or allowing for the imposition of costs or attorney’s fees. It also allows for other general sanctions that the JCC may deem appropriate. However, traditional F.S.57.105 sanctions that are available in civil cases are not applicable in administrative workers’ compensation claims, unless they are at an appellate level. 

In Mary Hektner v. School Board of Brevard County, OJCC# 13-014654RLD, 1st DCA 1D18-3792, PCA date April 15, 2019, counsel for the claimant had scheduled and noticed the adjuster’s deposition multiple times. A motion for protective order was filed and the employer/carrier’s attorney alleged that the deposition was going forward only to harass, annoy, or embarrass his adjuster and that there were very limited contested issues. The docket indicates extensive litigation and multiple issues appealed to the First District Court of Appeals. Relating to this adjuster’s live deposition, the attorney for the employer/carrier traveled from Orlando to Pompano Beach, stayed overnight in a hotel, and spent extensive time preparing the adjuster for the deposition. Counsel for the employer/carrier emailed claimant’s counsel three times and called multiple times, attempting to confirm that the deposition was going forward. Claimant’s counsel neither responded to the emails nor returned the calls. On the date of the deposition, he failed to appear in person or participate by phone. After the deposition was set to begin, claimant’s counsel’s office advised that the deposition was canceled. The employer/carrier then filed a motion for sanctions. The JCC ultimately found the circumstances warranted sanctions against claimant’s counsel only, and not the claimant. Pursuant to Florida Rules of Civil Procedure 1.310, the JCC awarded $3,661.50 for the employer/carrier attorney’s fees and $362.39 for costs. The First District Court of Appeals affirmed the decision per curiam. 

In a similar case, Carlos Santiago v. American Airlines, OJCC# 19-029788JIJ 1st DCA 1D20-2931 PCA date April 5, 2022, Premise, a health care provider, filed a motion for sanctions against a claimant’s attorney after the granting of a motion for protective order. The claimant’s attorney (the same attorney from the Hektner case mentioned previously) had filed a motion to compel better responses when asked to produce a contract between the defendant/employer and Premise. The employer/carrier objected on the basis of relevancy and trade secrets privilege, as it related to the workers’ compensation case. The JCC granted Premise’s motion for protective order, finding the contract was not reasonably calculated to lead to admissible evidence. The judge entered an order denying the claimant’s motion, and the claimant then filed a motion for rehearing. Premise responded by filing a motion for sanctions based upon F.S. 440.32(3), indicating that there was no good faith argument related to the modification of existing law. Additionally, Premise argued the purpose for the motion for rehearing was to harass or needlessly increase the cost of litigation. A motion for rehearing cannot re-litigate the same issue, unless there is some reversal of existing law. In this case, Premise incurred legal fees in excess of $100,000 defending this issue. The JCC found that claimant’s counsel filed the motion for rehearing for an improper purpose and that an appropriate sanction was to pay an attorney’s fee to Premise’s Health in the amount of $3,358. The district court affirmed the decision per curiam. 

On the other hand, in an evidentiary order on motion for sanctions in the case of Wilmer Hernandez Perez v. Seacrest Services/Travelers Insurance, OJCC #20-016176TAH dated March 2, 2023, the JCC found that it did not have enough evidence to warrant sanctions after the claimant missed four different depositions. The claimant appeared for the hearing on the motion for sanctions and testified that he was unaware of one of the dates of the deposition. Additionally, a Florida provision pursuant to DOAH Rule 60Q-6.125 provides that the party shall be served, but not filed, within 21 days of service of the motion for sanctions. This gives the allegedly offending party the ability to correct the deficiency and avoid the actual filing of the motion for sanctions. In the present case, the employer/carrier did not serve the motion on the claimant 21 days before filing it. The JCC, therefore, denied the motion for sanctions, indicating it was not a violation of the rules and the motion for sanctions was deficient. 

While Judges of Compensation Claims are generally hesitant to award sanctions, these cases show the (very limited) circumstances where they are pushed the edge to do so. The Florida workers’ compensation bar strives to maintain the collegial reputation that it has earned by avoiding the bad behavior outlined in the situations above and hoping that younger attorneys learn from these errors for the future. 

*Heather is a shareholder in our Jacksonville, Florida, office. She can be reached at 904.358.4225 or HBCarbone@mdwcg.com.
 

 

Defense Digest, Vol. 29, No. 3, September 2023, 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. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

Event

Pennsylvania Appellate Update 2025-2026

On August 21, 2026, Casey will serve as a panelist for the live webcast program, “Pennsylvania Appellate Update 2025-2026” presented by the Appellate Advocacy Committee of the Pennsylvania Bar Association and Pennsylvania Bar Institute. The program is divided into three parts—Criminal, Civil, and Administrative. Casey will serve as a panelist for the Civil portion, along with Christina McKinley of Blank Rome, Ben Baer of Injury Law Partners, John Masslon of Keller Postman, Jonathan Bruno of Bruno Litigation LLC, and moderator, Ezza Ahmed of Buchanan Ingersoll.  Registration and more information: https://www.pbi.org/product/pennsylvania-appellate-update-2025-2026/

Thought Leadership

Commonwealth Court Holds That a Claimant Who Was Struck By a Car While Crossing the Street During an Unpaid Break Was In the Course and Scope of Employment

This case involved a claim petition filed by a claimant who sustained injuries after being struck by a vehicle while crossing the street in front of the employer’s premises. The employer denied the claim based on course and scope, as the accident occurred during one of two mandatory fifteen (15) minute breaks provided to the claimant. The claimant would punch out at the beginning of a break and punch back in when the break was over.  On the date of the incident, the claimant punched out and left the building to get lunch at a restaurant, which required her to cross the employer’s parking lot, and then a public street, where the injury occurred. The Workers Compensation Judge (WCJ) dismissed the petition, noting that that during the two mandatory fifteen-minute breaks per shift allowed by the employer, the claimant was free to leave the employer’s premises, and during breaks, permitted to engage in whatever activity she desired. The WCJ found that at the time of the accident, the claimant was on her own time, in the middle of the street, and going to get lunch.   The claimant filed an appeal with the Worker’s Compensation Appeal Board (Board), and the Board reversed.  According to the Board, the claimant’s location was still on the employer’s premises, as the claimant was taking her customary route while using a reasonable ingress/egress from the employer.  Further, the Board found that the “Personal Comfort Doctrine” applied, as the claimant was on a momentary departure to take care of her personal comfort, within the window of time she was allotted for her break.  The Board remanded the case, and a WCJ granted the claim petition.  The Board affirmed, and the employer appealed to the Commonwealth Court. Before the Court, the employer argued that the claimant was not in the course and scope of her employment, because the injury did not occur on its premises, and the claimant was outside the bounds of the Personal Comfort Doctrine. The Court, however, rejected these arguments, and dismissed the employer’s appeal.  The Court noted that the break given to the claimant was so cursory, when she set out to relieve her hunger for her own personal comfort,  she remained in the course of her employment when she sustained her injuries.  A Petition for Allowance of Appeal in the Supreme Court has been filed by the Employer, Giant Eagle.

empty courtroom photo

Result

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Thought Leadership

New Jersey Workers’ Compensation Legislation Updates

Since June 1, 2026, there have been no new New Jersey workers’ compensation related cases from the Appellate or Supreme Courts. As such, below will highlight any new legislative updates since February. A1023 | S3984 - Medical Use of Cannabis Under Certain Circumstances This requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances. It was introduced on January 13, 2026 and referred to the Assembly Financial Institutions and Insurance Committee. It was also introduced on March 19, 2026 and referred to the Senate Commerce Committee. A1045  - Certain Injuries to Volunteer and Professional Public Safety and Law Enforcement Personnel This revises workers’ compensation coverage for certain injuries to volunteer and professional public safety and law enforcement personnel. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. A1384 | S2757 - Reduce Statute of Limitations in Medical Fee Disputes This reduces statute of limitations from six years to two years in medical fee disputes in workers’ compensation matters. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A1870 | S1379 - Workers' Compensation Benefits For Certain Workers Due to September 11, 2001 Terrorist Attacks This provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. It was also introduced on the same day and referred to the Senate Labor Committee. On February 5, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. A2779 | S1521 - Excludes Certain Illegal Aliens This excludes certain illegal aliens from workers’ compensation and temporary disability benefits. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A2792 | S1555 -  Prevent Intoxicated Employees from Workers’ Compensation This prevents intoxicated employees from receiving workers’ compensation. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A3167 | S2372 - Workers’ Compensation Insurance Requirements for Certain Corporations and Partnerships This concerns workers’ compensation insurance requirements for certain corporations and partnerships. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. A3548 | S3571 – Maximum Benefits for Certain Volunteers This provides certain volunteer and other workers with maximum compensation benefit for workers' compensation claim regardless of outside employment. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. On March 2, 2026, it was reported from the Senate Committee, 2nd Reading, and referred to the Senate Budget and Appropriations Committee. It was also introduced on the same day and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly State and Local Government Committee. A3724 - Personal Liability to Employer Officers for Failure to Pay for Coverage This provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers' compensation coverage. It was introduced on January 13, 2026 and referred to the Assembly Labor Committee. On May 7, 2026, it was reported and referred to Assembly Judiciary Committee. A4617  - Certain Workers' Compensation Supplemental Benefits and Funding Method This concerns certain workers' compensation supplemental benefits and funding method. For a permanently and totally disabled worker or surviving dependents after December 31, 1979, with some exceptions, this bill provides for an annual cost of living adjustment in the weekly workers’ compensation benefit rate. It was introduced on March 10, 2026 and referred to the Assembly Labor Committee. S241 - Inclusion in Database of Appointed Officials This requires that workers’ compensation judges and administrative law judges be included in database of appointed officials. It was introduced on January 13, 2026 to the Senate, Referred to Senate State Government, Wagering, Tourism & Historic Preservation Committee. S2290 -  Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 72. It was introduced on January 13, 2026 and referred to the Senate Judiciary Committee. S3144 - Testimony in Workers’ Compensation This concerns submission of testimony in workers’ compensation claims. It was introduced on January 13, 2026 and referred to the Senate Labor Committee. S3342  - Increase Mandatory Retirement Age This increases statutory mandatory retirement age for Supreme Court Justices, Superior Court Judges, Tax Court Judges, Administrative Law Judges, and Workers’ Compensation Judges from 70 to 75. It was introduced on February 5, 2026 and referred to the Senate Judiciary Committee.

Thought Leadership

Appellate Court Rejects Horizontal Immunity Defense to Company Not Acting as Statutory Subcontractor

The First District Court of Appeal held that a property management company was not entitled to horizontal immunity under section 440.10(1)(e), Florida Statutes, in a negligence action brought by an employee of another company working on the property. The claimant was injured while servicing a swimming pool at an apartment complex. His employer had contracted with the property owner to maintain the pool. Following the accident, the claimant received workers' compensation benefits through his employer’s carrier. The claimant subsequently filed a negligence action against the property management company, alleging that it failed to maintain the premises in a reasonably safe condition and failed to warn him of a dangerous condition that caused his injuries. The property management company had been retained by the property owner to maintain the complex in good operating condition and to perform routine maintenance and repair work. The property management company argued that it was immune from suit under section 440.10(1)(e) of Florida’s Workers’ Compensation Law. That provision grants immunity to a subcontractor providing services in conjunction with a contractor on the same project or contract work from civil actions brought by employees of another subcontractor, subject to limited exceptions. According to the property management company, it qualified as a subcontractor working on the same project as the claimant’s employer and was therefore entitled to horizontal immunity. The trial court agreed and entered summary judgment in its favor. On appeal, however, the claimant argued, and the appellate court agreed, that horizontal immunity applies only when a contractor has sublet work arising from a contractual obligation owed to a third party. The court noted that prior decisions consistently held that an entity acting solely on its own behalf as the owner of property, rather than pursuant to a contract with a third party, is not a “contractor” under section 440.10(1), even when it hires other companies to perform work on the property. In Teed, the property management company could not establish that the property owner had a primary contractual obligation to a third party to maintain either the apartment complex or the swimming pool, which it then delegated to the claimant’s employer or the property management company. As a result, the property owner did not qualify as a statutory contractor, and the property management company was not a subcontractor entitled to horizontal immunity under section 440.10(1)(e). The First District therefore reversed the lower court’s ruling and remanded the case for further proceedings on the claimant’s negligence claim.

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Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

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News

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Jason Banonis Named Attorney of the Year by the Pennsylvania Defense Institute

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Result

Defense Verdict in Complex Medical Malpractice Trial