                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

ANNE MARIE LIMITH,                  NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D14-3761

LENOX ON THE LAKE DBA
FTMI OPERATOR, LLC AND
CASTLE POINT FLORIDA
INSURANCE CO., D/B/A U.S.
FIRE INSURANCE AND CRUM
& FORSTER,

     Appellee.
____________________________/

Opinion filed April 17, 2015.

An appeal from an order of the Judge of Compensation Claims.
Iliana Forte, Judge.

Date of Accident: June 26, 2011.

Bill McCabe, Longwood, and Kevin R. Gallagher of the Gallagher Law Group, P.A.,
Fort Lauderdale, for Appellant.

Andrew R. Borah and William H. Rogner, Winter Park, for Appellees.



PER CURIAM.

      In this workers’ compensation case, Claimant appeals, and the

Employer/Carrier (E/C) cross-appeals, an order of the Judge of Compensation
Claims (JCC) denying a follow-up medical visit, but also rejecting the E/C’s

affirmative defense based on the statute of limitations, section 440.19, Florida

Statutes (2010). Because the cross-appeal has merit, and must be addressed first in

that it has reach beyond this single petition for benefits (PFB) given the serial nature

of workers’ compensation litigation, we reverse on that ground, with instructions

detailed herein.

      The E/C argues that the predecessor JCC erred in entering an interlocutory

(non-final) order on October 7, 2013, denying the E/C’s motion to dismiss for lack

of prosecution, which motion was directed toward a pending claim for attorney’s

fees and costs asserted in a 2011 PFB. See F.T.M.I. Operator, LLC v. Limith, 140

So. 3d 1065 (Fla. 1st DCA 2014) (dismissing certiorari challenge to October 7

order). The E/C argues further that had the pending claim been dismissed, the

limitations period would have run, barring the instant claim (for a follow-up visit)

which was asserted by PFB filed October 16, 2013—after the order denying the

E/C’s motion to dismiss for lack of prosecution. We agree; section 440.25(4)(i),

Florida Statutes, the authority for motions to dismiss, applies to pending fee claims

asserted by PFB. See Black v. Tomoka State Park, 106 So. 3d 973 (Fla. 1st DCA

2013). Although the predecessor JCC had technically dismissed the 2011 PFB and

reserved jurisdiction over the claims for fees and costs (without adjudicating

entitlement), there is no authority for finding, as Claimant would have us do, that a

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reservation of jurisdiction in this manner means that the claim is no longer brought

via a PFB and, therefore, not subject to dismissal under section 440.25(4)(i).

Claimant cannot have it both ways – having the claim for attorney’s fees and costs

toll the statute of limitations because it was brought by way of a PFB, and also having

the claim not subject to dismissal for lack of prosecution because it is not a PFB.

      Although section 440.25(4)(i) states that a JCC “may” dismiss a petition for

lack of prosecution, that decision is not necessarily discretionary. See Allied Fid.

Ins. Co. v. State, 415 So. 2d 109, 111 (Fla. 3d DCA 1982) (“[T]he permissive word

“may” will be deemed to be obligatory ‘[w]here a statute directs the doing of a thing

for the sake of justice. . . .’”). The word “may” must also be considered in context

with the rest of section 440.25(4)(i) referencing “good cause shown”; specifically,

section 440.25(4)(i) provides a JCC may dismiss a PFB “unless good cause is

shown.” Because the Legislature provided a standard of “good cause shown,” it was

incumbent upon the JCC here, in the exercise of sound judicial discretion, to apply

the standard. But the JCC failed to provide any rationale whatsoever for denying the

motion to dismiss. This court has previously held that a failure to exercise discretion

constitutes reversible error. See VFD v. State, 19 So. 3d 1172 (Fla. 1st DCA 2009).

Because the failure to exercise discretion here results in the potential indefinite

tolling of the statute of limitations, the order denying the E/C’s motion to dismiss

was erroneous. Consequently, on remand the JCC shall determine whether Claimant

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can show good cause—apart from the order denying the motion to dismiss for lack

of prosecution ∗—that would preempt dismissal for failure to prosecute. Should the

JCC find no good cause, the JCC shall enter an order nunc pro tunc to October 7,

2013, granting the E/C’s motion to dismiss the pending claim for fees and costs, and

also enter an order denying the 2013 PFB on the reasoning that it was barred by

operation of the statute of limitations.

      Conversely, should the JCC find Claimant had good cause for the failure to

prosecute the pending 2011 claim, the analysis of the merits of the 2013 PFB comes

into play. The record supports the JCC’s finding that Claimant’s compensable injury

had fully healed by August 2011, requiring no additional medical care. Accordingly,

we affirm this portion of the order. Should the JCC find good cause for the non-

prosecution of the attorney’s fee claim, the JCC shall enter an order concluding the

limitations period has not run on Claimant’s case, and need not re-address the merits

of the 2013 PFB.

      REVERSED and REMANDED with instructions.

LEWIS, C.J., RAY and SWANSON, JJ., CONCUR.




∗
  The facts here are such that the interlocutory order cannot constitute good cause
for Claimant’s failure to prosecute her pending claim for attorney’s fees and costs.
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