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What's Hot in Workers' Comp

Personal representative’s status will revert back to petition for benefits’ filing date, even though claimant’s counsel filed this petition and attached an older fraud acknowledgement signed by the decedent prior to his death.

Estate of Ronald McKenzie, through the personal representative Terry McIntosch v. Hi Rise Crane, Inc./Bridgefield Employers Ins. Co., First District Court of Appeals, No. 1D20-3307, Decision date: Aug. 19, 2021, On appeal from Judge Forte

October 1, 2021

by Linda Wagner Farrell

Before the injured worker died, petitions for benefits had been filed identifying a January 26, 2018, date of accident. Those petitions were dismissed shortly after the injured employee’s death. No activity occurred until January 24, 2020, when the attorney for the decedent filed a petition for benefits on behalf of Terry McIntosch, as the personal representative of the decedent’s estate. A certificate of good faith effort and the fraud acknowledgment, which had been signed by the injured worker in February 2008, were attached to the new petition. McIntosh petitioned the circuit court for appointment as personal representative shortly after the petition for benefits was filed and later received the appointment in July 2020.

The employer/carrier moved to dismiss the pending petition and alleged that McIntosh was not the personal representative at the time the petition for benefits was filed. They also asserted the petition was not compliant with the statutory requirements because McIntosh was not the one who had signed the attached certificate and acknowledgment.

McIntosch then moved to amend the petition for benefits, contending that her appointment as personal representative should relate back to the January 2018 date, when the petition for benefits was filed, which was just before the statute of limitations ran. The motion was accompanied by an amended petition for benefits with the acknowledgment signed by her.

The judge of compensation claims rejected the argument that the relation back doctrine would apply. The judge noted that there is a distinction between a civil complaint and a petition for benefits because section 440.105 (7) mandates that anyone making a worker’s compensation claim provide an attestation that they are not giving any false or misleading information, while there is no such requirement in civil cases. The judge also held that because the acknowledgment attached to the original petition was signed by the decedent before he died, McIntosch “did not legally acknowledge by her signature making a worker’s compensation claim.” The judge further reasoned that the decedent’s attorney was without legal authority to file the petition because his representation of the decedent ended with his death and that, if McIntosch was making the claim, she was required to sign the statutorily required acknowledgment.

The judge also rejected the decedent’s attorney’s explanation that he did not have McIntosch sign the form because of time constraints and he was concerned that her signing could potentially subject her to insurance fraud. The judge found that the petition was null and void as the employee was deceased when the petition was filed and claimant’s counsel was without legal authority to represent him. The judge denied the motion to amend and dismissed the petition for benefits. McIntosch then appealed.

The First District Court of Appeal held, however, that the statute supports that anyone who is making a claim must sign a certificate acknowledging the ramifications of filing a statement of claim containing any false or misleading information. They pointed out that the acknowledgment itself does not identify the claimant but, rather, identifies the person making the acknowledgment. They also pointed to a prior case, Padilla v. Collins Contracting, 22 So. 3d 124 (Fla. 1st DCA 2009), which held that dismissal is not appropriate if the person making the claim fails to provide the statutory acknowledgment. Rather, it requires a suspension of benefits until the claimant signs the acknowledgment.

The court outlined that in Padilla, the Florida Administrative Code Rule 60 Q-6.107 (1) indicates petitions will be dismissed only for failure to comply with section 440.192 (2)–(4), Fla. Stat. Therefore, there was no reason not to apply the same rationale here. Consequently, they held that the judge erred in dismissing the petition because it did not include an acknowledgment signed by McIntosch.

The court further held that the judge also erred in concluding that the decedent, not McIntosch, was the claimant, leading her to find that the attorney lacked the authority to file the petition. As a result, the judge incorrectly rejected the relation back doctrine’s applicability. They noted that claimant’s counsel filed the January 2020 petition on behalf of McIntosch as a personal representative of the decedent’s estate, not on behalf of the decedent, and, thus, he did not act beyond his authority.

In addition, although McIntosch was not yet the personal representative at the time of the filing, Section 733.601, Fla. Stat. (2020) provides that a personal representative’s powers “relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those are occurring after appointment.”

The case was reversed and remanded for further proceedings consistent with the opinion.

 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin 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 © 2021 Marshall Dennehey Warner Coleman & Goggin, 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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