When the Claimant Must Pay; Prevailing Party Costs

In Florida workers’ compensation cases, the prevailing party is entitled to recover its costs from the losing party. This means that even if a claimant pursues a claim in good faith, if he or she does not prevail on an issue, the employer/carrier can recover the costs expended in defending the claim/issue.   This rule requiring a losing claimant to pay costs was part of the massive 2003 Florida workers’ compensation overhaul. Prior to 10/1/03, only the employer/carrier had exposure to the payment of costs.

[teaser img=””]the-statuteFlorida Statute 440.34(3) If any party should prevail in any proceedings before a judge of compensation claims or court, there shall be taxed against the nonprevailing party the reasonable costs of such proceedings, not to include attorney’s fees. (amended 2003)[/teaser]

 

How Do You Determine the “Prevailing Party”?

The term “prevailing party” generally means that party, as claimant or defendant, who substantially prevails against the other party. In Florida workers’ compensation cases,  a Judge of Compensation Claims is not limited to finding that only one party (or neither party) prevailed. The unique nature of workers’ compensation proceedings, wherein a sequence of (often non-competing) claims and defenses is normally consolidated into a single hearing, creates the potential for a party to be both prevailing and nonprevailing, relative to different claims in the same proceeding.[1]

A dismissal by a claimant can also result in becoming the nonprevailing party. In Griffin v. Progressive, the claimant voluntarily dismissed her claims prior to a hearing. As such, the Judge of Compensation Claims taxed the costs of defending the outstanding issues (the claims dismissed) against the claimant. [2]

What Costs are Recoverable?

As a general rule, costs relevant to the claims at issue in the Uniform Guidelines for Taxation of Costs can be charged against the nonprevailng party. Generally, costs for relevant copies of medical records, deposition fees, court reporter fees, medical expert fees (these fees can be tricky), and the like. Payments for conferences with physicians can be taxable. The Uniform Guidelines for Taxation of Costs should be considered when determining if a cost is taxable. However, these Guidelines are advisory only and consideration will be given to the purpose of the conference in determining if the cost is taxable.[3] If a conference with a physician was regarding an issue in dispute, it may be taxable.

If you have questions regarding prevailing party costs in Florida workers’ compensation claims, or any other question relevant to workers’ comp claims, contact one of our workers comp attorneys in Tampa for a free consultation.

[1] Aguilar v. Kohl’s Department Stores, 68 So.3d 356 (Fla. 1st DCA 2011).

[2] OJCC Case No.: 14-021911MES.

[3] Martin v. Code Enforcement, City of Jacksonville, 122 So.3d 438 (Fla. 1st DCA 2013).

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