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First DCA Clarifies the Two Dismissal Rule

by | Dec 27, 2014 | Firm News, First DCA, Workers' Compensation

The First DCA issued an opinion recently clarifying the elements necessary for a claim to be subject to the two-dismissal rule applicable to Florida workers’ compensation claims. The two dismissal rule states “a second notice of voluntary dismissal shall operate as an adjudication of denial of any claim or petition for benefits previously the subject of a voluntary dismissal”.[1] This means that upon the second dismissal of a claim, that claim shall be forever barred as a matter of law pursuant to the principles of res judicata.

In Moreno v. Palm Beach County School Board, the claimant filed the following petitions for benefits: 9/14/10 seeking permanent total disability (PTD) from 3/1/08 and continuing based on the claimant’s compensable back injury; 7/28/11 seeking PTD benefits from 6/29/11 and continuing based on the claimant’s compensable back injury, and on 11/12/13 seeking PTD benefits from  4/2/13 (date of psychiatric maximum medical improvement) and continuing based on the combination of the  claimant’s compensable back and psychiatric injuries.[2] The first two claims were voluntarily dismissed. Upon filing of the third petition for PTD, the carrier filed a Motion for Summary Final Order pursuant to 60Q-6.116 (2), seeking to dismiss the 11/12/13PFB based on the two-dismissal rule. In its MSFO, the carrier took the position the claimant was forever barred from filing for PTD benefits based on the two prior dismissals of claims for PTD benefits. The judge agreed with the carrier, and granted the carrier’s motion to dismiss based on principles of res judicata. The First DCA took up the case and ultimately reversed.

The court found the JCC erred by focusing on the specific benefit claimed, and not giving due consideration to the principles of res judicata. Res judicata applies only when all elements are present; whether the facts and evidence necessary to maintain the suit are the same in both actions.[3] The court held that even where the class of benefit is the same, the question remains whether the evidence upon which the petition for benefits is filed is the same. The court held that in the instant case, the claimant’s third petition for PTD was based on his back injury and a compensable psychiatric injury which did not exist at the time of the prior claims. The court held because the facts and evidence required to prove permanent total disability were different in the third claim, the judge erred in concluding the principles of res judicata applied and thereby granting a motion for summary final order. The case was remanded back to the JCC for consideration of the merits of the 11/12/13 PFB seeking PTD benefits.

If you have questions regarding the two-dismissal rule, or any other workers’ compensation matter, please contact our office to speak with a Tampa workers’ compensation attorney immediately. We offer free consultations. Our firm has been representing injured workers in Florida for over 25 years.

[1] F.A.C. 60Q-6.116(2).

[2] Moreno v. Palm Beach County School Board, Case 1D14-1142 (Fla 1st DCA 9/11/14).

[3] See Caron v. Systematic Air Services, 576 So.2d 373 (Fla.1st DCA 1991).