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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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On the Pulse…Recent Appellate Victories

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On the Pulse… Profile of the Intellectual Property, Technology & Media Litigation Practice Group

The Intellectual Property, Technology & Media Practice provides comprehensive, end-to-end litigation and counseling services to national and global insurance carriers. We are committed to delivering a disciplined, cost-effective, and creative defense tailored to each client's needs. Our attorneys combine deep litigation experience with technical and scientific backgrounds, enabling us to understand our clients' technologies and effectively communicate complex concepts to adversaries, judges, and juries. We also assist clients with risk management, pre-suit dispute resolution strategies, and, when necessary, the litigation of claims and complaints in courts across all 50 states through trial. In addition, we work closely with our eDiscovery team to address complex issues involving electronically stored information, including data preservation, electronic discovery, computer imaging, and allegations of spoliation. These issues are often critical to the intellectual property and technology matters we handle every day, and our integrated approach helps clients navigate them efficiently and effectively. Our attorneys represent clients in patent infringement, copyright, trademark, and trade secret disputes in the state and federal courts in jurisdictions throughout the United States. Many of our clients also face highly technical professional liability claims involving computer systems, software, cybersecurity, data management, and other technology-related services. We take a proactive approach to managing risk and controlling exposure, working with clients and their insurers to develop effective pre-suit strategies and avoid litigation whenever possible through mediation, settlement conferences, and other alternative dispute resolution methods. When litigation cannot be avoided, we remain steadfast in serving our clients' legal and business objectives, recognizing the significant costs and operational burdens that complex litigation can impose. We work closely with insurance carriers to help protect our clients' brands, intellectual property, and business interests while delivering a thorough and cost-effective defense. We additionally maintain a strong Media Practice. Our attorneys have extensive experience handling First Amendment and media-related disputes, including claims involving defamation, libel, privacy rights, injunctions, gag orders, and prior restraints on speech. Clients benefit from our practical litigation strategies and thoughtful approach to managing matters that often attract significant public attention and scrutiny. With 19 offices throughout Pennsylvania, New Jersey, New York, Delaware, Florida, Ohio, and Connecticut, we maintain a strong presence across the East Coast. We serve as national counsel for insurance carriers and have handled matters throughout the United States, from Hawaii to Washington, and virtually every jurisdiction in between. Our national reputation ensures that our clients receive not just the best skilled legal representation but also practical business-minded guidance in determining the proper legal response to all claims and lawsuits. David chairs both the Privacy and Data Security Practice and the Intellectual Property, Technology and Media Litigation Practice. He may be reached at djshannon@mdwcg.com.

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106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. 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On the Pulse…Other Notable Achievements

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The seminar offered practical strategies to prevent ethical grievances and legal malpractice, along with sharing expert insights on issues from electronic payments and fee splitting to the impact of AI. ​Heather Carbone (Jacksonville) was a panelist for a webinar hosted by The Workers’ Compensation Claims Professionals (WCCP) Association. As part of the “Meet the Experts” Series, the speakers addressed “Afterthoughts that Undermine a Successful Mediation,” highlighting the pitfalls and challenges of underprepared or unprepared mediation participants. A. Judd Woytek (King of Prussia) joined a panel at the CLM Alliance (Claims and Litigation Management Alliance) Work Comp Conference in Nashville to present "We See You How Employee Engagement Enhances Work Comp Outcomes." Judd and his fellow panelists discussed the positive impact of employee engagement on claim outcomes, return-to-work timelines, and overall claim costs. ​Joe Lesinski (Pittsburgh), Jim Cole (Philadelphia), Matt Flanagan (New York), and Adam Fogarty (Mt. Laurel) presented several continuing education (CE) programs to claims professionals for our client. The team hosted two one-hour panel discussions on “The Art of Mediation", attended by more than 80 claims professionals. In the afternoon Adam Fogarty and Joe Lesinski presented a CE program on “The Fundamentals of Premises Liability in New Jersey and Pennsylvania" while Matt Flanagan and Jim Cole led a presentation on “Trends in Claims" against attorneys and the evolving issues impacting the legal profession. ​Julia Klubenspies (Roseland) was invited to speak to the 2026 class of incoming resident physicians at The Valley Hospital on ways to reduce the risk of being named in litigation. ​Jon Cross (Philadelphia) and Sara Mazzolla (Roseland) spoke at the 5th Annual ideal3 Summit in Minneapolis on “Information Gathering for New Claims and Prevention of Spoliation." The program explored the ethical and legal obligations surrounding the collection and preservation of evidence once a claim is anticipated. 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