Daniel Murphy v. Polk County Board of County Commissioners, and Commercial Risk Management

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2022-2752

_____________________________

DANIEL MURPHY,

Appellant,

v.

POLK COUNTY BOARD OF COUNTY

COMMISSIONERS and

COMMERCIAL RISK

MANAGEMENT,

Appellees.

_____________________________

On appeal from the Office of the Judges of Compensation Claims.

Brian J. Anthony, Judge of Compensation Claims.

September 3, 2025

TANENBAUM, J.

The Florida Workers’ Compensation Law (chapter 440,

Florida Statutes) bars the filing of any petition for benefits (“PFB”)

beyond two years from when the employee became aware that he

suffered an accidental work-caused injury. § 440.19(1), Fla. Stat.

(2016). 1 A pending, legally sufficient PFB filed within that two-

year period, however, tolls that statute’s running. § 440.19(3), Fla.

1 The accident occurred in 2016, so all statutory references are

to the 2016 version of the Florida Statutes, unless otherwise noted.

Stat. We previously held that as long as “at least one petition

[remains] pending at all times between the filing of the first

petition and the hearing on the last petition” regarding an accident

date, a “claimant’s voluntary dismissal of the first petition” would

“not operate to dismiss the entire case” as to that accident date,

“but only the individual petition”; so the statute would continue to

be tolled for the entire period. Rice v. Reedy Creek Improvement

Dist., 924 So. 2d 882, 884–85 (Fla. 1st DCA 2006). Contrast this

with an earlier decision, where we held that when a claimant

voluntarily dismisses his entire case pertaining to an accident date,

no tolling operates at all “during the period that the dismissed

action was pending; rather, the statute will run as if the dismissed

action had never been filed.” McBride v. Pratt & Whitney, 909

So. 2d 386, 388 (Fla. 1st DCA 2005). To decide this appeal, we

must address whether an employee’s initial PFB—later

voluntarily dismissed before the employer’s acceptance of

compensability or adjudication of any entitlement to compensation

or medical benefits—continues to toll that limitation statute’s

running if, as part of that dismissal, the employee purports to leave

pending his demand for attorney’s fees. We hold that it does not.

I

First, the facts. On September 10, 2016, Daniel Murphy

alleged that he injured his right knee as he stepped out of a

garbage truck while working for the employer, Polk County.

Murphy filed his initial PFB on January 11, 2017, seeking

compensability for the September 2016 injury; making claims for

disability benefits and medical benefits; and seeking penalties,

interest, costs, and attorney’s fees (the last category commonly

referred to as “PICA”). The employer responded by denying

compensability and denying Murphy’s entitlement to any medical

or disability benefits. On July 17, 2017, Murphy voluntarily

dismissed without prejudice the PFB but asserted that

“[e]ntitlement to and/or the amount of an attorney fee and taxable

costs remain at issue.” At the time of this dismissal, no other PFB

was pending for the 2016 accident.

Almost two years later, on May 28, 2019, Murphy filed a

second PFB regarding the same date of accident, this one making

a claim for permanent disability benefits from June 20, 2018,

2

forward, plus PICA. The employer responded by denying that

Murphy was entitled to the claimed benefits and asserting a

statute-of-limitation defense. On November 22, 2019, the employer

asked the judge of compensation claims (“JCC”) to require Murphy

to file a verified motion for attorney’s fees and costs relating to the

January 11, 2017, PFB. See Rule 60Q-6.124(3), (5), Fla. Admin.

Code. The JCC granted that request. After Murphy failed to file

any such motion, the JCC dismissed the remaining demand for

fees and costs on April 29, 2020.

Meanwhile, the May 28, 2019, PFB was still pending. Then on

September 25, 2020, Murphy filed a third PFB for the same date

of accident, this time making a claim for medical benefits (medical

care and a change of physician). The employer responded to the

second and third PFBs by once again denying Murphy’s

entitlement to any benefits and asserting the claims were time-

barred. On April 14, 2021, Murphy voluntarily dismissed the May

28, 2019, and September 25, 2020, PFBs. The dismissal indicated

that all claims for medical benefits, plus the claims for permanent

impairment benefits sought in the May 28, 2019, PFB, had been

resolved. The dismissal also repeated Murphy’s purported

reservation on his demand for attorney’s fees, as was done in the

voluntary dismissal of the first PFB, noting that “[e]ntitlement to

and/or the amount of attorney fee and taxable costs remain [at]

issue.”

Murphy filed a fourth PFB for the same date of accident on

July 14, 2021. Like in the first PFB, Murphy sought a

determination of compensability, made claims for temporary total

or temporary partial disability benefits and for medical benefits

(medical care authorization), and demanded PICA. The JCC

dismissed the fourth and final PFB on August 18, 2022—solely

based on the limitation period barring any claim for the September

2016 accident. This is the order we now review.

The chronology described above can be summed up as follows:

• September 10, 2016: Murphy alleges that he suffered a

work-caused injury.

• January 11, 2017: Murphy files his first PFB, seeking a

determination of compensability for the alleged injury,

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making claims for disability benefits and medical benefits

(medical care), and demanding PICA.

• January 25, 2017: The employer responds by denying

compensability and denying Murphy’s entitlement to

medical benefits or compensation.

• July 17, 2017: Murphy voluntarily dismisses without

prejudice his first PFB but asserts that his entitlement to

attorney’s fees and taxable costs remains at issue.

• May 28, 2019: Murphy files a second PFB, making a claim

for permanent disability benefits from June 20, 2018,

forward, and demanding PICA.

• June 20, 2019: The employer responds by denying

Murphy’s entitlement to any of the claimed benefits and

asserting a statute-of-limitation defense.

• November 22, 2019: The employer moves for a JCC order

compelling Murphy to file a verified motion for attorney’s

fees related to the January 11, 2017, PFB.

• December 13, 2020: The JCC orders Murphy to file a

verified motion for attorney’s fees (“addressing

entitlement only”) within thirty days.

• April 29, 2020: The JCC dismisses with prejudice

Murphy’s demand for attorney’s fees related to the

January 11, 2017, PFB.

• September 25, 2020: Murphy files a third PFB, making

claims for medical benefits (medical care and a change of

physician).

• October 6, 2020: The employer responds by again denying

Murphy’s entitlement to benefits and asserting the

limitation statute has run.

• April 14, 2021: Murphy voluntarily dismisses his second

and third PFBs but again asserts that his entitlement to

attorney’s fees and costs remains at issue.

4

• July 14, 2021: Murphy files a fourth PFB, seeking a

determination of compensability, making claims for

temporary total or temporary partial disability benefits

and for medical benefits (medical care authorization), and

demanding PICA.

• August 18, 2022: The JCC dismisses the fourth PFB

because the limitation period had run on any claim for

benefits for the September 2016 date of accident.

II

As typically is the case in a compensation appeal, we are called

upon to apply statutory text to a set of procedural facts. We have

here two statutes to consider: section 440.19, Florida Statutes,

containing both the statute of limitation and the relevant tolling

provision; and section 440.192, Florida Statutes, governing PFBs.

A

A PFB must be “filed within 2 years after the date on which

the employee knew or should have known that the injury or death

arose out of work performed in the course and scope of

employment,” otherwise the PFB is “barred.” § 440.19(1), Fla.

Stat.; cf. Solar Pane Insulating Glass, Inc. v. Hanssen, 727 So. 2d

961, 963 (Fla. 1st DCA 1998) (“The limitations period does not

begin to run, however, until an injured employee is aware that he

or she may be entitled to compensation benefits.”). A claim, once

filed, “stays pending until withdrawn by claimant, or acted upon,

or dismissed.” Turner v. Keller Kitchen Cabinets, S., Inc., 247

So. 2d 35, 40 (Fla. 1971).

The filing of a PFB meeting the law’s specificity requirements2

tolls the two-year limitation period while the PFB is pending. See

2 Those specificity requirements include the following: “[a]

detailed description of the injury and cause of the injury”; “[t]he

time period for which compensation and the specific classification

of compensation were not timely provided”; a “specific statement

of all benefits or compensation that the employee is seeking”; “[t]he

type or nature of treatment care or attendance sought and the

justification for such treatment”; and a “[s]pecific explanation of

5

§ 440.19(3), Fla. Stat.; see Airey v. Wal-Mart/Sedgwick, 24 So. 3d

1264, 1265 (Fla. 1st DCA 2009) (“A properly drafted petition for

benefits tolls the statute of limitations as long as it remains

pending.”). “[T]olling focuses directly on limitation periods and

interrupting the running thereof.” Hearndon v. Graham, 767

So. 2d 1179, 1185 (Fla. 2000). It “suspend[s] the running of the

statute of limitations time clock until the identified condition is

settled.” Hankey v. Yarian, 755 So. 2d 93, 96 (Fla. 2000). Under

section 440.19(3), a timely filed, legally compliant PFB stops any

further time in the two-year limitation period from elapsing and

being “counted against the claimant” for as long as the PFB

remains pending and awaiting adjudication. Id. at 97 (internal

quotations omitted); see also id. (noting that when a tolling event

occurs, the limitation “clock stops until the tolling period expires,”

at which point the limitation clock “then begins to run again”

(internal quotations omitted)). A subsequent PFB—filed while an

earlier, timely filed PFB remains pending—also is timely, then,

even if filed more than two years after the accidental injury occurs,

because its filing occurred while the limitation period remained

suspended.

As noted in the introduction, with regard to the application of

the limitation period set out in section 440.19(3), this court has

said that when a claimant files multiple PFBs for the same date of

accident, as long as “at least one petition [remains] pending at all

times between the filing of the first petition and the hearing on the

last petition filed,” the voluntary dismissal of the earlier, timely

filed PFB does not render the later-filed PFBs untimely. Rice, 924

So. 2d at 884–85. If, however, there is a period of time when no

PFB is pending (rendering the entire “action” effectively

any other disputed issue that a judge of compensation claims will

be called to rule upon.” § 440.192(2), Fla. Stat.; see also

§ 440.02(40), Fla. Stat. (defining “specificity” to mean enough

information “to put the employer or carrier on notice of the exact

statutory classification and outstanding time period of benefits

being requested”; and if seeking medical benefits, the PFB must

“include specific details as to why such benefits are being

requested, why such benefits are medically necessary, and why

current treatment, if any, is not sufficient”).

6

dismissed)—the limitation statute is “not tolled during the period

that the dismissed action was pending; rather, the statute will run

as if the dismissed action had never been filed.” McBride, 909

So. 2d at 388.

Murphy filed his second PFB more than two years after the

pertinent accident, so it would be time-barred unless the first PFB

remained pending. To support his request that we vacate the JCC’s

order, Murphy relies on Rice—arguing that he did not fully dismiss

the first PFB (and, effectively, the entire “action” regarding his

date of accident) because he left his demand for fees pending. 3 This

argument requires us to answer a previously unanswered

question: whether Murphy’s initial PFB, as a legal matter, can be

said to have remained pending—thereby continuing to toll the

limitation period—even though he voluntarily dismissed his

3 Murphy also argues that the JCC erred by relying on this

court’s later decision in Moise v. Disney Pop Century Resort, 244

So. 3d 403 (Fla. 1st DCA 2018). On this, we agree. Moise is

distinguishable from both this case and Rice. By its own terms,

Moise addressed “the interaction of sections 440.19 and

440.25(4)(i),” Florida Statutes—the tolling effect of a timely filed

PFB vis-à-vis a PFB filed after the former PFB is subject to a

motion to dismiss for failure to prosecute. 244 So. 3d at 407; see

§ 440.25(4)(i), Fla. Stat. (“A judge of compensation claims may,

upon the motion of a party or the judge’s own motion, dismiss a

petition for lack of prosecution if a petition, response, motion,

order, request for hearing, or notice of deposition has not been filed

during the previous 12 months unless good cause is shown.”).

Moise simply holds that if the JCC grants the motion to dismiss

the earlier, timely filed PFB, and the order becomes final, a PFB

filed subsequent to the motion, but before the JCC’s ruling on it,

will be “retroactively barred by operation of the” statute of

limitation if the subsequent PFB would have been untimely if not

for the pending claim “against which the motion to dismiss had

been filed.” Moise, 244 So. 3d at 406. We do not have that situation

here. The employer filed a motion, under rule 60Q-6.124(5) of the

Florida Administrative Code, regarding Murphy’s failure to seek a

ruling on his purportedly reserved demand for attorney’s fees and

costs related to the January 11, 2017, PFB—after Murphy filed his

second PFB.

7

request for a compensability determination, his claims for medical

benefits and for compensation, but not his demand for attorney’s

fees. 4 To address this question, we turn to section 440.192.

B

A PFB is the statutory vehicle by which an employee may

claim “past benefits and continuing benefits in any benefit

category.” § 440.192(3), Fla. Stat. (emphasis supplied). But any

benefit sought must be “in default and ripe, due, and owing on the

date the petition is filed.” Id. (emphasis supplied); see also id. (1)

(“Any employee may, for any benefit that is ripe, due, and owing,

file . . . a petition for benefits which meets the requirements of this

section and the definition of specificity in s. 440.02.”).

Under the workers’ compensation regime, benefits fall into

two categories: 1) compensation for disability or death; and 2)

medical and attendant care. See § 440.015, Fla. Stat. (“It is the

intent of the Legislature that the Workers’ Compensation Law be

interpreted so as to assure the quick and efficient delivery of

disability and medical benefits to an injured worker and to

facilitate the worker’s return to gainful reemployment at a

reasonable cost to the employer.” (emphasis supplied)); §

440.10(1)(a), Fla. Stat. (making employers liable for “the

compensation payable under ss. 440.13, 440.15, and 440.16,”

Florida Statutes—that is, medical treatment and attendant care

4 Contrary to what the concurring opinion suggests, this court

did not answer the precise question in American Airlines Group v.

Lopez, 388 So. 3d 843 (Fla. 1st DCA 2024). Lopez addressed a

related question: whether a reservation on fees (albeit unclear

whether the reservation was under a settlement or adjudication of

the claim) was a tolling event under section 440.19(2). The court

in that case engaged in a straightforward textual analysis to

conclude that the reservation was neither the provision of medical

care nor the payment of an indemnity benefit (the only two

specified tolling events in that provision), so the answer was no.

Here, we address the effect—if any—on the timeliness of

subsequently filed PFB’s when a claimant decides to leave pending

his demand for fees on an earlier, timely filed PFB while

dismissing his claims for benefits under that PFB.

8

and disability and death benefits); § 440.02(7), Fla. Stat. (defining

“compensation” to be “the money allowance payable to an employee

or to his or her dependents as provided for in this chapter”); cf.

Lopez, 388 So. 3d at 845 (noting “two clearly defined types of

benefits: indemnity benefits, governed by section 440.15 of the

Florida Statutes; and remedial treatment, care, or attendance,

governed by section 440.13”).

It is clear from the referenced statutory provisions that an

award of attorney’s fees is neither of these forms of benefits (i.e.,

neither indemnity nor medical treatment)—so, not benefits at all

under this state’s compensation regime. Indeed, this court

repeatedly has stated this. See Houston-Miller v. U.S. Fire Ins.,

668 So. 2d 653, 653 (Fla. 1st DCA 1996) (holding “that the payment

of an attorney’s fee to the claimant’s attorney is not the ‘payment

of compensation’”); Sanchez v. Am. Airlines, 169 So. 3d 1197, 1198

(Fla. 1st DCA 2015) (noting, in the context of a similar tolling

provision in section 440.19(2), that “it is well-settled that the

payment of an attorney’s fee is neither a payment of compensation

nor the furnishing of medical treatment,” which are the only “two

categories of benefits provided to a claimant” under chapter 440);

Lopez, 388 So. 3d at 845 (noting that the payment of attorney’s fees

is “neither of these” benefits categories).

Despite the language in statute distinguishing an employee’s

demand for attorney’s fees from a claim for benefits, Murphy

maintains that his reservation on his entitlement to attorney’s fees

in the voluntary dismissal of the January 11, 2017, PFB kept that

PFB pending. An employee’s entitlement to attorney’s fees,

however, is merely derivative of his successful prosecution of a

claim for benefits set out in a PFB before a JCC. See § 440.34(3),

Fla. Stat.; see also Morgan v. Am. Airlines, 296 So. 3d 565, 566 (Fla.

1st DCA 2020) (explaining that it must be the attorney’s

“successful prosecution” of the employee’s PFBs “that achieved the

[employer’s] acceptance and payment of her claims” for there to be

an entitlement to fees under section 440.34, Florida Statutes);

Franco v. SCI at Palmer Club at Prestancia, 989 So. 2d 709, 710

(Fla. 1st DCA 2008) (“Successful prosecution is achieving

‘acceptance and payment of the claim.’” (quoting Mitchell v.

Sunshine Cos., 850 So. 2d 632, 633 (Fla. 1st DCA 2003))).

9

As with a prevailing-party fee provision in civil litigation, a

demand for fees under section 440.34 is “ancillary to the claim” for

benefits. Cheek v. McGowan Elec. Supply Co., 511 So. 2d 977, 979

(Fla. 1987). Put another way, a demand for fees under section

440.34 is “collateral” to a PFB’s claim for benefits and fee

entitlement cannot be “determined until the main claims have

been tried and resolved.” Finkelstein v. N. Broward Hosp. Dist.,

484 So. 2d 1241, 1243 (Fla. 1986). “[P]ayment of attorney’s fees is

not part of the substantive claim because it is only intended to

make the successful party whole by reimbursing him for the

expense of litigation.” Cheek, 511 So. 2d at 979. 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.

Murphy nevertheless relies heavily on this court’s decisions in

Longley 5 and Black. 6 Both cases deal with tolling and entitlement

to attorney’s fees after dismissal of a PFB, but those decisions are

easily distinguishable. In both, the claims for medical benefits set

out in the PFBs had been “resolved” by settlement, short of a final

adjudication by the JCC. Once resolved, each employee’s

“ancillary” and “collateral” demand for attorney’s fees no longer

was inchoate. Rather, by the time the PFB was dismissed, the

demand had ripened because each employee’s attorney had

secured medical benefits under the settlement, and the JCC had

the authority to reach the entitlement question. See Longley, 82

So. 3d at 1100 (explaining that though the employee’s asserted

entitlement to attorney’s fees was premised on the benefit he

sought in a PFB that was dismissed as part of a settlement, the

claim “was ripe at the time the benefit was provided” so as to be

pending for tolling purposes); Black, 106 So. 3d at 973 (noting that

5 Longley v. Miami-Dade Cnty. Sch. Bd., 82 So. 3d 1098 (Fla.

1st DCA 2012).

6 Black v. Tomoka State Park, 106 So. 3d 973 (Fla. 1st DCA

2013).

10

Longley was “analogous” and holding that the claimant’s asserted

entitlement to attorney’s fees was still “pending,” for tolling

purposes, when not resolved, and not dismissed, as part of a

settlement of the claim for medical benefits); cf. Mitchell, 850

So. 2d at 633 (explaining that an “attorney’s efforts in obtaining . .

. acceptance and payment of the claim” by the employer through

settlement “constitutes a successful prosecution of the claim” and

establishes “entitlement to an attorney’s fee award”). 7

The dismissal by Murphy of his January 11, 2017, PFB was

not taken in furtherance of a settlement achieved by his counsel—

and, obviously, there had not been an adjudication of any benefits

claim contained therein—so the fee demand remained “ancillary”

and “collateral,” but to a no-longer-extant claim for benefits.

Murphy did not get any tolling benefit from that PFB, making the

next PFB he filed—nearly two years after his dismissal of the first,

and roughly two and a half years after the accident—time-barred.

AFFIRMED.

ROWE, J., concurs; M.K. THOMAS, J., concurs in result only with an

opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

7 Murphy also relies on Hospitals East, LLC v. Hampton, 330

So. 3d 565 (Fla. 1st DCA 2021). That decision is inapt because it

merely concludes that once the JCC adjudicates the entitlement to

fees—the claim just discussed, and as addressed by both Longley

and Black—an open question as to the amount of fees does not

keep the PFB pending for tolling purposes. See Hosps. E., 330 So.

3d at 566.

11

M.K. Thomas, J., concurring in result only with opinion.

The JCC correctly dismissed the fourth PFB, and the order

should be affirmed. My reasoning behind affirmance, however,

differs from that of the majority.

Here, the only question before us is whether the fourth PFB

was timely filed pursuant to section 440.19, Florida Statutes,

which sets forth the statute of limitations (SOL) in workers’

compensation cases. We are not confronted with the pure question

of whether a sole pending claim in a PFB for entitlement to

attorney’s fees and costs tolls the SOL. 1 If the question were before

us, as the majority argues, the answer is “no” as required by this

Court’s opinion in American Airlines Group v. Lopez, 388 So. 3d

843 (Fla. 1st DCA 2024).

Development of caselaw addressing the relationship between

pending attorney’s fee claims and the SOL has been a serpentine

path, at best. The intricate and unique factual and procedural

backdrops of each case result in narrow holdings. To qualify

relevant precedent and recognize what specifically has come

before, a review is helpful. In McBride Pratt & Whitney, 909 So. 2d

386, 388 (Fla. 1st DCA 2005), this Court held that if there is no

PFB pending—the limitation statute is “not tolled during the

period that the dismissed action was pending; rather, the statute

will run as if the dismissed action had never been filed.”

Then in Rice v. Reedy Creek Improvement District, 924 So. 2d

882, 884–85 (Fla. 1st DCA 2006), the application of McBride was

addressed in the context of a claimant filing multiple PFBs

subsequently voluntary dismissing them. Rice declared that

pursuant to section 440.19(2), when a claimant files multiple PFBs

for the same date of accident, as long as “at least one petition

[remains] pending at all times between the filing of the first

petition and the hearing on the last petition filed,” the voluntary

1 I note this Court’s recent opinion in Fox v. Sarasota Cnty.

Sch. Bd., No. 1D23-3093, 2025 WL 1750735 (Fla. 1st DCA June 25,

2025), holding “JCCs have no jurisdiction over E/C-paid claimant’s

costs.”

12

dismissal of the initial PFB does not render the later-filed PFBs

untimely. Id. Rice did not address the issue of pending claims for

fee entitlement or amount as distinguishing factors—it addressed

only a scenario where a claimant filed and later voluntarily

dismissed PFBs while always leaving at least one PFB pending.

In Longley v. Miami-Dade County School Board, 82 So. 3d

1098, 1100 (Fla. 1st DCA 2012) and Black v. Tomoka State Park,

106 So. 3d 973, 974 (Fla. 1st DCA 2013), this Court held that a

PFB filed before the resolution of a pending claim for entitlement

to attorney’s fees was not barred by the SOL because the SOL does

not operate while a PFB is pending. However, Longley and Black

were later distinguished by Sanchez v. American Airlines, 169 So.

3d 1197, 1198 (Fla. 1st DCA 2015) and Hospital East, LLC v.

Hampton, 330 So. 3d 565 (Fla. 1st DCA 2021).

This Court announced in Sanchez that the payment of

attorney’s fees does not toll the one-year limitations period. 169 So.

3d at 1198. It is only the payment of compensation or the

furnishing of medical care that extend the SOL under subsection

440.19(2). Id. Recognizing a possible rub with prior precedent, the

Sanchez opinion detailed, “This holding is not undercut by Longley

. . . upon which Claimant relies. That decision held that a PFB filed

before resolution of a pending attorney’s fee claim is not barred by

the [SOL] because the [SOL] does not operate while a PFB is

pending. Here, because there was no other PFB pending when the

[subject] PFB was filed, Longley is inapplicable.” Id.

In Limith v. Lenox on the Lake, 163 So. 3d 616, 617 (Fla. 1st

DCA 2015), an issue of how to force resolution of pending

attorney’s fee claims was presented. This Court held that where

jurisdiction was reserved over entitlement to fees and costs, those

fee and cost claims were subject to dismissal for lack of

prosecution, reasoning, “Claimant cannot have it both ways—

having the claim for attorney’s fees and costs toll the statute of

limitations because it was brought by way of a PFB, and also

having the claim not subject to dismissal for lack of prosecution

because it was not a PFB.” Id.

Then the decision in Hampton announced a shift in analysis.

See 330 So. 3d 565. Hampton considered an outstanding claim for

amount of fees only and not entitlement. Id. at 566. This Court

13

explained, “On de novo review, we agree with the E/C that

reservation over amount of fees and costs does not toll the statute

of limitations, because amount and entitlement are distinct for fees

and costs.” Id. (emphasis added) (citing Sanchez, 169 So. 3d at

1197 (“holding that payment of attorney's fee does not extend

statute of limitations because ‘the payment of an attorney's fee is

neither a payment of compensation nor the furnishing of medical

treatment—the only two events that will extend the statute of

limitations under subsection 440.19(2)’”)). The opinion reasoned as

follows,

This principle undergirds many aspects of statute of

limitations law in workers’ compensation. Cf. Fla.

Admin. Code R. 60Q-6.124(3)(c), (5) (indicating that,

where both fee entitlement and amount are contested,

hearing can be bifurcated on request, and that JCC on

motion “shall” require party seeking fees to file verified

motion (alleging amount) if PFB seeking fee entitlement

is pending, but “may” require party to do so if entitlement

has already been determined); Limith v. Lenox on Lake,

163 So. 3d 616, 617 (Fla. 1st DCA 2015) (holding that

where jurisdiction was reserved over entitlement to fees

and costs, those fee and cost claims were subject to

dismissal for lack of prosecution, reasoning, “Claimant

cannot have it both ways—having the claim for attorney's

fees and costs toll the statute of limitations because it was

brought by way of a PFB, and also having the claim not

subject to dismissal for lack of prosecution because it is

not a PFB)”.

Hampton’s distinction between amount and entitlement

focused upon the E/C’s ability to force resolution of outstanding fee

entitlement issues through motion to the JCC under Florida

Administrative Code Rule 60Q-6.124(5)(a). However, the rule does

not provide for a mandatory resolution of pending claims for

amount of attorney’s fees but leaves it up to the discretion of the

JCC. See Fla. Admin. Code R. 6.124(5)(b) (“The judge may require

the party or attorney entitled to attorney’s fees and costs to file a

verified motion for attorney’s fee and costs as to amount.”).

14

Recognizing potential conflict with Black and Longley, the

decision in Hampton emphasized that neither amount nor

entitlement had been determined or adjudicated in those prior

cases. Id. at 566. “Thus, the rule stated in Black does not apply to

claims about the amount of attorney's fees or costs.” Id. Although

not specifically called out in Hampton, its holding invariably

influenced Rice, which said generally as long as a claim is pending

the SOL is tolled. Regardless, Hampton announced an exception to

Rice that a pending claim for amount of attorney’s fees does not

toll the SOL. Ultimately, Hampton involved a pending claim for

amount of fees when the subject PFB under attack was filed. Id.

The question raised was whether the pending claim for amount

saved the subject PFB from a SOL defense. Id. This Court

answered “no” for the above reasons and barred the PFB even

though claim for amount remained “pending.” Id.

In Moise this Court specifically addressed “the interaction of

sections 440.19 and 440.25(4)(i).” 2 244 So. 3d at 407. Several prior

claims for entitlement to and amount of fees had been reserved and

were “pending.” Id. at 404. To resolve the outstanding claims

(probably for SOL purposes), the E/C filed a motion to dismiss the

claims for lack of prosecution. Id. at 404–05. The JCC granted the

motion and the claims were dismissed. Id. at 405. Pursuant to the

dismissal, the claims were regarded as if never filed and the later

filed PFB was rendered untimely and barred by the SOL. Id. at

406. If a pending claim which serves to toll the SOL is dismissed

by any means, the SOL is not tolled during the period that the

dismissed action was pending. Id. The reasoning in Moise was not

inconsistent with Rice. Rice presented the novel issue of the

interplay of the SOL and a dismissal for lack of prosecution and

did not involve a claimant’s voluntary dismissal of a PFB with

reservation of jurisdiction solely on a pending claim for

2 Section 440.25(4)(i), Florida Statutes, provides that a JCC

“may, upon the motion of a party or the judge’s own motion,

dismiss a petition for lack of prosecution if a petition, response,

motion, order, request for hearing, or notice of deposition has not

been filed during the previous 12 months unless good cause is

shown. A dismissal for lack of prosecution is without prejudice and

does not require a hearing.”

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entitlement to or amount of attorney’s fees. In Rice there was no

reservation of claims for attorney’s fee.

Last is this Court’s recent and impactful opinion in Lopez. In

Lopez, medical and indemnity benefits were last paid in November

2020. 388 So. 3d at 844. Two previous PFBs filed in 2020 were

resolved except for reservation of jurisdiction for entitlement to

fees. Id. However, the parties later resolved the pending fee

entitlement claim via joint stipulation approved by the JCC in May

2021. Id. On December 1, 2021, the claimant filed a PFB (more

than a year after the last payment of indemnity and medical) and

later filed several others, subsequently voluntarily dismissing the

December 2021 PFB. Id. Ultimately, the only remaining PFB was

filed one year and six months after the last payment of benefits.

Id. The E/C asserted the SOL as a defense. Id.

The JCC in Lopez described the controlling issue as “when

does the time clock begin running for the statute of limitations,

tolled because of a pending fee issue?” Id. at 845. This Court

explained:

The JCC’s first error was to presume that reserving

jurisdiction on a pending PFB for attorney's fees tolls the

statute of limitations. It does not. Rather, it merely

documents that the PFB remains pending because the fee

issue is not yet resolved. Once the fee issue is resolved—

whether by the JCC's approval of a fee and cost

stipulation or denial for failure of proof, or the claimant's

voluntary dismissal of the PFB—that pending status is

extinguished.

Id. at 845. The JCC’s finding that the SOL was extended during

the pendency of the outstanding claims was reversed. Id. This

Court further rejected the JCC’s reasoning that attorney’s fees and

costs were a “benefit” and thus have a tolling effect. Id. at 845.

The Lopez decision provided a much-needed clarification of

the differences and proper application of the concepts of “pending”

and “tolling.” Lopez artfully explained as follows:

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“Pending” status of a PFB is an element of jurisdiction,

while “tolling” is a separate legal doctrine that delays the

time limits for pursuing or continuing a lawsuit. Section

440.19(2) specifies only two tolling events: “payment of

any indemnity benefit or the furnishing of remedial

treatment, care, or attendance.” Id. On its face, this

statute does not authorize tolling for either the pendency

of a PFB or the payment of attorney's fees. For purposes

of tolling under section 440.19(2), these are separate

events and separate issues. Certainly the JCC had

jurisdiction to resolve the fee issue, but once he did, all

outstanding claims were resolved and the PFB was no

longer pending. That did not toll the statute of limitations

as to indemnity payment or remedial treatment.

Id. at 845 (citing Moise, 244 So. 3d at 404–07).

In the case before us, the E/C provided one or two medical

visits just after the September 2016 accident and then denied

compensability of the claim in its entirety. Murphy filed a PFB on

January 11, 2017, requesting compensability and benefits,

inclusive of penalties, interests, costs, and attorney’s fees (PICA).

Six months later, Murphy filed a voluntary dismissal of that PFB

but reserved jurisdiction on entitlement and amount of fees due.

On May 18, 2019, he filed a second PFB requesting compensability

and benefits and PICA. The E/C asserted a SOL defense in

response. On November 20, 2019, pursuant to Rule 60Q-6.124, the

E/C filed a motion to compel Murphy to file a verified motion to

resolve the outstanding fee claim pending from the initial January

2017, PFB. The JCC granted the motion and ordered Murphy to

file the verified motion. Murphy did not. The JCC then entered an

order dismissing the only pending claim in the initial PFB for

entitlement to attorney’s fees. Murphy did not appeal the order,

and it became final. Murphy went on to file multiple subsequent

PFBs and later voluntarily dismissed them with a reservation of

claims for entitlement to attorney’s fees. A fourth PFB was filed on

July 14, 2021, the PFB at issue here. The E/C asserted a SOL

defense. The JCC determined that the fourth PFB was barred by

the SOL. He reasoned that after he entered the order dismissing

the pending claim for entitlement to attorney’s fees in the initial

PFB all claims were resolved, and because that order was not

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appealed, Murphy had until “sometime in September 2018 to file

a valid PFB.” The deadline period would have been two years after

the date of accident and within two years of last provision of care.

However, Murphy did not file the second PFB until May 28, 2019.

Based on Moise and similar to Lopez, the pending claim on the

initial PFB in January 2017, once dismissed or resolved, is

regarded as if never filed. Accordingly, there was no tolling effect

on the SOL during the time the pending claim for entitlement to

attorney’s fees in the initial PFB was pending. Thus, the second

PFB and all later filed PFBs (including the subject fourth PFB) did

not revive the SOL period and were all untimely. Our review here

does not require analysis of whether a pending claim for

entitlement to attorney’s fees tolls the SOL—because there was no

pending claim for entitlement to attorney’s fees when the second

PFB was filed well over two years after the accident and any

indemnity or medical benefits were provided. The JCC correctly

held that the SOL barred the subject fourth PFB, because the SOL

had run at the time of the filing of the second PFB.

I also respectfully disagree with the majority opinion’s

comparison of fees under section 440.34, Florida Statutes, to civil

litigation fees as “ancillary to the claim.” Further, the “inchoate”

or “no-longer-extant” nature or label of a fee demand is inapposite

to the SOL review. Whether 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.

____________________________

Thomas Sculco and Shannon McLin, Florida Appeals, Orlando, for

Appellant.

Thomas P. Vecchio, Vecchio, Carrier, Feldman, & Johannessen,

P.A., Lakeland, for Appellees.

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