NAZAR KALOUSTIAN, APPELLANT,
v.
TAMPA ARMATURE WORKS, INC. AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLEES
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A workers' compensation claimant appealed a Judge of Compensation Claims' award of costs to the employer/carrier and a finding that the claimant's independent medical examination claim was barred by the statute of limitations. The court reversed the cost award because the judge applied a post-October 1, 2003 statutory provision to a pre-October 1, 2003 claim, and affirmed the statute of limitations finding.
The court reversed the cost award because section 440.34(3) did not apply retroactively to claims with pre-October 1, 2003 dates of accident, and the employer/carrier could not rely on the invited error doctrine to salvage the award by invoking section 440.32 on appeal without having properly asserted those grounds below. The court affirmed the statute of limitations finding without further comment.
[1] An award of costs under section 440.34(3), Florida Statutes, is reversible error when applied to a claim with a date of accident preceding the effective date of that stat…
[2] A party cannot successfully complain on appeal about an error for which it is responsible under the invited error doctrine.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Section 440.32(1) provides for an award of costs if the JCC 'determines that the proceedings in respect of such claim or order have been instituted or continued without reasonable ground....'”
Establishes the statutory requirements for cost awards under section 440.32, which the employer/carrier failed to assert in their motions.
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Join FLexlaw to unlock all legal intelligenceClaimant filed two petitions for benefits pertaining to an August 15, 2003 workplace accident, one requesting an orthopedic independent medical examin…
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In these consolidated appeals, Claimant 'raises two issues. The first concerns the Judge of Compensation Claims’ (JCC) award of costs to the Employer/Carrier (E/C) pursuant to section 440.34(3), Florida Statutes. The second concerns the JCC’s finding that Claimant’s claim for an independent medical examination (IME) was barred by the statute of limitations. For the reasons explained below, we re*754verse as to the first issue. We affirm as to the second without further comment.
Claimant filed two petitions for benefits (PFBs), one of which requested, inter alia, an orthopedic IME. Both PFBs pertained to the same August 15, 2003, date of accident. In response to these PFBs, the E/C filed two motions for summary final order, and in both motions asserted entitlement to costs pursuant to section 440.34, Florida Statutes. The JCC granted both summary final order motions, and awarded the E/C costs payable by Claimant pursuant to section 440.34(3), Florida Statutes.
On appeal, the E/C concedes the award of prevailing party costs was error, because Claimant’s date of accident predates the October 1, 2003, version of section 440.34(3), which permits such an award. The E/C asserts, however, that citation to that section in both of their motions, and in both of the JCC’s summary final orders, was a scrivener’s error. The E/C contends the proper statutory basis for awarding costs was section 440.32, Florida Statutes.
Section 440.32(1) provides for an award of costs if the JCC “determines that the proceedings in respect of such claim or order have been instituted or continued without reasonable ground.... ” Section 440.32(2) provides for an award of costs if the JCC “determines that the proceedings were maintained or continued frivolously....” However, in neither of the E/C’s motions for summary final order did the E/C assert Claimant’s PFBs included claims instituted or maintained without reasonable ground, or that the PFBs themselves were maintained or continued frivolously. Likewise, the JCC made no such findings in either of her orders. Significantly, the E/C did not attempt to correct the purported scrivener’s error by filing a motion for rehearing or clarification. See Wal-Mart Stores, Inc. v. Lopez, 742 So.2d 301, 302 (Fla. 1st DCA 1998) (holding this court will not reverse a JCC’s order for a readily correctable technical error that the JCC was not asked to correct within the time available for correction).
Consequently, to the extent, if any, the JCC erred in not awarding costs pursuant to section 440.32, Florida Statutes, the error was invited by the E/C. Thus, they cannot argue on appeal that the JCC was mistaken in basing her cost award on section 440.34, Florida Statutes. See Muina v. Canning, 717 So.2d 550, 553 (Fla. 1st DCA 1998) (holding that, under the “invited error” rule, a party cannot successfully complain about error for which it is responsible).
Because the JCC incorrectly applied the post-October 1, 2003 version of section 440.34(3), Florida Statutes, to a claim with a pre-October 1, 2003, date of accident, the JCC’s award of costs to the E/C pursuant to that statute was reversible error. REVERSED in part, AFFIRMED in part, and REMANDED for proceedings consistent with this opinion.
BARFIELD, THOMAS, and CLARK, JJ., concur.
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Gomar v. Ridenhour Concrete & Supply, 42 So. 3d 855 (Fla. 1st DCA 2010)…sagrees with it, a dispute is created and the claimant may request an IME.” Id. at 274. We recognize, of course, that the date of accident dictates which version of a substantive statute applies. See, e.g., Kaloustian v. Tampa Armature Works, Inc., 5 So. 3d 753, 754 (Fla. 1st DCA 2009) (holding JCC reversibly erred in applying the post-October 1, 2003, version of section 440.34(3) to a claim with a pre-October 1, 2003, date of accident); Bell v. Univ. of Fla., 652 So. 2d 460, 461 (Fla. 1st DCA 1995) (resta…
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Trent v. Sanitation, 31 So. 3d 938 (Fla. 1st DCA 2010)…ppeal, the E/C properly concedes the award of prevailing party costs was error because Claimant’s date of accident predates the October 1, 2003, version of section 440.34(3), which permits such an award. See Kaloustian v. Tampa Armature Works, Inc., 5 So. 3d 753 (Fla. 1st DCA 2009) (holding the JCC reversibly erred in applying the post October 1, 2003, version of section 440.34(3) to a claim with a pre-October 1, 2003, date of accident). Consequently, that portion of the JCC’s order awarding the E/C prevail…
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Candelario Carrillo v. Case Eng'g, Inc., 53 So. 3d 1214 (Fla. 1st DCA 2011)…award. See Trent v. Charlotte Sanitation, 31 So. 3d 938 (Fla. 1st DCA 2010) (reversing award of costs to prevailing employer and carrier in case involving an accident that took place before October 1, 2003); Kaloustian v. Tampa Armature Works, Inc., 5 So. 3d 753, 754 (Fla. 1st DCA 2009) (concluding judge of compensation claims erred in applying after-enacted version of section 440.34(3) to pre-2003 accident as basis for awarding costs against claimant). The judge of compensation claims also refused to awar…
Authorities Cited
- Wal-Mart Stores, Inc. v. Lopez, 742 So. 2d 301 (Fla. 1st DCA 1998)
- Muina v. Cornelia Canning and Judy Dew, 717 So. 2d 550 (Fla. 1st DCA 1998)
- Rhona Ottolina v. Miller Lakes Assocs., 717 So. 2d 550 (Fla. 3d DCA 1998)