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

> District Court of Appeal of Florida · September 3, 2025

URL: https://www.frixlaw.com/law-library/cases/11131841

## Case

- **Court:** District Court of Appeal of Florida
- **Decided:** September 3, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11131841

## How later opinions describe it (automated extraction)

- noting, in the context of a similar tolling provision in section 440.19(2
- holding “that the payment of an attorney’s fee to the claimant’s attorney is not the ‘payment of compensation’”

## Opinion text

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,

3
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

17
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11131841. Public record. Not legal advice.