         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D19-0533
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RAYDEL COTO,

    Appellant,

    v.

UNIVISION/SENTRY CASUALTY
COMPANY,

    Appellees.
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On appeal from an order of the Judge of Compensation Claims.
Walter J. Havers, Judge.

Date of Accident: May 23, 2016.

                       September 25, 2019


PER CURIAM.

    AFFIRMED.

RAY, C.J., and KELSEY, J., concur; MAKAR, J., concurs with opinion.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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MAKAR, J., concurring with recommendation.

     Raydel Coto, a tractor-trailer driver, fractured his right ankle,
had corrective surgery, and later sought platelet-rich plasma
(PRP) injections or, alternatively, additional surgery, when his
injury continued to cause him physical difficulties. He ultimately
received authorization for the PRP injections, and immediately
dismissed his petition for benefits seeking the additional surgery;
he later also received the requested surgery.

     Coto, who appears to have acted in good faith throughout the
process, was nonetheless assessed $1,074.34 in costs under section
440.34(3), Florida Statutes, which says: “If any party should
prevail in any proceedings before a judge of compensation claims
or court, there shall be taxed against the nonprevailing party the
reasonable costs of such proceedings, not to include attorney's
fees.” The basis for the assessment of costs is a technical one.
Because Coto dismissed his petition for surgical benefits (when he
got the PRP injections and thought he might not need surgery), no
petition was pending later when surgery was authorized; because
he sought surgery, but dismissed his petition before he actually
received the requested surgery, the employer/carrier was entitled
to statutory costs (though not compelled to seek them).

     Under these types of circumstances, this Court has held that
an award of costs under section 440.34(3) is mandatory, even if
manifestly unfair to the claimant. Frederick v. Monroe Cty. Sch.
Bd., 99 So. 3d 983, 984 (Fla. 1st DCA 2012) (noting that “statute
imposes a chilling effect on future employees with meritorious
claims” who might “forego seeking benefits based on meritorious
claims in order to avoid subjecting themselves to an award of
costs.”). Imposition of costs makes little sense and operates as a
deterrent to those seeking benefits in good faith in situations such
as those confronting Coto and Frederick. For this reason, it bears
reiterating the recommendation of the panel in Frederick “that the
Legislature consider whether an employee who files a petition for
benefits in good faith should be subject to the imposition of costs.”
Id.




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Richard A. Sicking and Mark A. Touby of Touby, Chait & Sicking,
P.L., Coral Gables, for Appellant.

Alexander Blanco, Coral Gables; and Marjorie Gadarian Graham
of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for
Appellees.




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