Greetings, last week the 1st DCA issued a favorable opinion for Employer/Carriers in Murphy v. Polk Co. Bd. Of Commissioners (attached), although I do not think it goes as far as we would like.
Since the Longley case in 2012, a claimant’s attorney could dismiss a Petition for Benefits, and unilaterally reserve on whether they are owed an attorney’s fee. That reservation, whether any benefits were secured or not from the dismissed PFB, tolled the Statute of Limitations. The SOL was tolled until the reservation was either dismissed voluntarily or involuntarily by the JCC or a fee was paid. This has kept many cases alive where the SOL would have otherwise expired.
In Murphy, the entire claim was denied. The original PFB was dismissed without any benefits being secured, the claim remained denied, but the claimant’s attorney reserved on attorney fees. Then after the SOL would have normally expired but for that fee reservation, the claimant attempted to file another PFB. The DCA stated:
“Once Murphy dismissed his January 11, 2017, PFB, 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 he still ostensibly was demanding. That remaining demand for attorney’s fees in the otherwise dismissed PFB could not serve as a standalone basis to deem the PFB still pending for tolling purposes.”
The DCA noted that the dismissal was not “taken in furtherance of a settlement “ (a resolution or stipulation to provide the benefits in the PFB) and there was no adjudication of the issues by a JCC. Therefore, there was no way that the claimant’s fee reservation could result in an attorney’s fee, and the SOL had expired.
So where does Murphy leave us and what has changed?
- A fee reservation on a dismissed PFB where everything listed remains denied does NOT toll the SOL.
- What if, as we often see, the benefits were provided before the PFB was even filed? Would a reservation in that situation toll the SOL? Maybe not, but it would take a hearing before the JCC on entitlement.
- I do not think, unfortunately, that Murphy overturns all of Longley. If there is a plausible argument that claimant attorney is owed a fee, a unilateral reservation probably still tolls the SOL (until we can get that fee resolved or the reservation dismissed).
As always, each case will have a different set of facts. I’m going to comb through my caseload and see if there any cases we can now deny for SOL. Please let me know if you have any questions.
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Sincerely,
Morgan Indek | Managing Partner