Cases

JCC dismissed petitions for benefits with prejudice filed by the claimant's attorney because of the claimant's failure to pay (and her failure to attend a hearing to explain her failure to pay) costs ordered to be paid by her after the dismissal of several prior petitions for benefits.  Court determined that JCC abused his discretion in dismissing the petitions for benefits with prejudice.  The record did not establish that the claimant's failure to attend the hearing or pay ordered costs was a willful or flagrant disregard of the JCC's authority.  See Section 440.24(4), Florida Statutes.

The standard of review for orders dismissing a party's case with prejudice is whether the JCC abused his or her discretion.  In this case, the claimant was told by a paralegal in the attorney's office who was previously representing the claimant that the hearing on the issue of costs and the show cause hearing on the failure to pay costs had been cancelled.  DIsmissal with prejudice is the most severe of all sanctions and should be employed only in extreme circumstances such as where the party's conduct was willful, flagrant or deliberate and only when the moving party demonstrates meaningful prejudice.  The facts in this case did not support a finding of willful or flagrant conduct necessary to justify dismissal with prejudice.  Although sanctions may be appropriate for the claimant's unreasonable failure to attend a hearing on the order to show cause why costs had not been paid, the JCC abused his discretion by imposing a dismissal with prejudice.

Section 440.24(4), Florida Statutes, authorizes the dismissal of claims until an employee complies with an order.  The statute could not support the dismissal of the claimant's new petitions for benefits with prejudice.  In deciding this issue, the court assumed, without the deciding, that Section 440.24(4), Florida Statutes, authorizes the dismissal of a subsequent proceeding based on the employee's failure to comply with an order entered in a prior proceeding.  In a footnote, the court specifically noted that it was not determining whether Section 440.24(4), Florida Statutes, is an appropriate mechanism for a party to seek collection or enforcement of a cost order against a non-prevailing adversary.