Cases

JCC erred in granting the employer/carrier's Motion for Summary Final Order based on the application of Rule 60Q-6.116(2) often called the "two dismissal" rule. The claimant had filed three claims for permanent total disability benefits and the employer/carrier alleged in the Motion for Summary Final order that the first two dismissals acted as an adjudication of denial for permanent total disability benefits as alleged in the third petition.  See American Woodmark Company v. Sipe, 117 So. 3d 70 (Fla. 1st DCA 2013).  JCC had determined that the two dismissal rule bars a PTD claim under principles of res judicata where two prior voluntary dismissals of a PTD claim had been entered.  The appellate court's review of a summary final order is de novo.

In determining if the two dismissal rule applies in any case, the elements of res judicata must be applied.  If res judicata is to apply, the determining factor is whether the cause of action being sought is the same as the previous claims dismissed and whether the facts or evidence necessary to maintain the claim are the same in all actions. It is this factor that is key to determination of whether the claimant's third Petition for Benefits was barred by the two dismissal rule in res judicata.  Even where the class of benefit may be the same (in this case PTD), the question remains as to whether the evidence is the same in proving all of the claims.  The burden in this case was on the employer/carrier as the moving party to prove that the claims were the same.  In this case, the court determined that the third petition for PTD claimed entitlement effective on a date subsequent to the filing date of the previously dismissed petitions.  In addition, the third petition alleged a new condition that required consideration in determining if the claimant was PTD.  These new allegations represent a difference of fact than were present in the previously dismissed petitions and accordingly, in this case, the two dismissal rule did not apply.