Cases

A properly drafted Petition for Benefits has the effect of tolling the running of the statute of limitations as long as it remains pending. Once filed, the Petition for Benefits remains pending until withdrawn by the claimant or acted upon or dismissed upon motion. The passage of time in and of itself does not terminate the pendency of the proceedings.

In this case, the Petition for Benefits was never dismissed and therefore, the statute of limitations did not run. The JCC dismissed the petition based upon the belief that the petition had been pending for too long. However, the proper procedure to dismiss the petition would have been to file a Motion to Dismiss for lack of prosecution in accordance with 440.25(4)(i), Florida Statutes (2008). That provision permits a JCC to dismiss a Petition for Benefits for lack of prosecution. However such action by the JCC can only be taken in response to a motion by a party or the judge. Dismissal for lack of prosecution would not have been appropriate here because no motion was filed requesting such action.