In my last blog entry, I wrote about whether the E/C’s right to tax costs is enforceable.  The problem being that chapter 440 provides no relief, in the form of rule nisi, for an E/C to enforce an order to tax costs against claimants.  My position was that it was unlikely that the Legislature would create a right to tax costs for E/C’s but not give them the power to enforce through rule nisi.  In fact, I wrote the following:

After all, the Florida Supreme Court held in Emma Murray that “a statute will not be construed in such a way that it renders meaningless or absurd any other statutory provision.”  By following the argument of these Claimant attorneys, the First DCA would be rendering s. 440.34(3) meaningless.

Well, it looks like I have to eat my words.  The First DCA just ruled in a case based on the theory that if the Legislature wanted to put something in the statute, then they would’ve written it in.   Let’s analyze it.

In McArthur v. Mental Health Care, Inc., Claimant sought a fraud claim against the E/C and their attorney.  At trial, the JCC asked Claimant what relief he sought and his attorney advised that the E/C should be penalized just as a claimant would, the denial of all benefits, or in this case the stripping of the E/C’s defenses.  In essence, Claimant sought the “death penalty” against the E/C for committing fraud.

As we all know, sections 440.105 and 440.09 deal with the “fraud defense.”  The definition of “fraud” in section 440.105  is not limited to just Claimants.  Anyone, even attorneys, can be charged with fraud.  The problem is that the statute only creates a penalty for fraud committed by claimants, not the other way around.  (Sound familiar?) 

If a claimant commits fraud, s. 440.09 gives the JCC power to strip him of his right to benefits. . . forever.  If the E/C commits fraud (or its attorney), then all the statute mentions is that the proper authorities (the Florida Bar, or DFS) can punish, suspend, or revoke that entity’s license. 

The JCC disagreed with Claimant and the First DCA affirmed.  The reason?  The JCC only has powers listed in chapter 440 and if the Legislature wanted to the JCC the power to sanction the E/C or its attorney, then the Legislature could have easily written it into the statute.  

While I would’ve been shocked if the First DCA ruled for Claimant, I think this gives us an idea about where the Court stands on the tax costs issue.  The Supreme Court in Emma Murray had a section of statute that dealt with fees and two conflicting sections that they interpreted.  The situation is a lot different when a party tries to find comparison with a section that does not exist (whether it be rule nisi or fraud penalty).

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