Responding to a Defective Petition for Benefits 3: Motions to Dismiss

08 Jul, 2019 Bruce Burk


Sarasota, FL ( - Have you ever received a Petition for Benefits that does not make a whole lot of sense? This article will discuss many of the situations where a referral to defense counsel would be a good idea. In Florida, Motions to Dismiss can help adjusters by saving money on attorney’s fees as well as potentially giving more time to investigate the claim.

You may receive a Petition for Benefits that is seeking adjustment of the AWW. However, oftentimes these Petitions do not list the AWW they are seeking an adjustment for. This Petition would, in theory, be subject to a Motion to Dismiss under 440.02(4) which requires that each Petition include a detailed explanation of the amount of benefits that should be increased, decreased, changed, or otherwise modified.

Next, you may receive Petitions for Attendant Care that lack any attachments or listing of the amount of attendant care that the claimant needs. This Petition could also be subject to a Motion to Dismiss under 440.13(2)(b) which requires the physical to give a prescription for attendant care in writing which includes the time periods, level of care, and type of assistance required.

You may have received a Petition asking for medical treatment that does not attach any prescriptions, such as a request for authorization of an orthopedic when the claimant is already treating with a PCP. This Petition would be subject to a Motion to Dismiss under 440.192(2)(I) which requires the Petition to attach a request, authorization, or recommendation for care or treatment to the Petition.

Sometimes Petitions are filed that lack specificity in general. For example, what if you received a Petition that asked for “an appointment with that doctor the claimant likes.” This Petition could be subject to a Motion to Dismiss under both 440.192(2)(I) as well as 440.02(40) which requires the Petition to give a detailed explanation of the benefits sought.

Petitions oftentimes request payments of medical bills. For example, say you get a Petition that seeks payment of bills from a hospital, but the Petition does not attach the bills nor does it state the name or address of the facility. This Petition could be subject to a Motion to Dismiss under 440.192(2)(h) which requires the Claimant to attach the bills to the Petition and list the name, address and applicable charges.

Petitions can also be filed that seek PTD or impairment benefits. However, say you receive one of these Petitions that does not have a date of MMI. These Petitions could be subject to a Motion to Dismiss under 440.192(2)(f) which requires that the Petition list the date of maximum medical improvement, character of disability, and specific statement of all benefits or compensation the employee is seeking.

It should be noted that Motions to Dismiss are not necessarily tools that will win the case. The judge will almost always give the claimant an opportunity to correct the mistake by refining a new Petition within a certain amount of time. However, they are great tools for narrowing the issues, getting more time, and saving money on attorney’s fees or costs.


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    About The Author

    • Bruce Burk

      Bruce Burk is an experienced workers' compensation defense attorney located in South Florida. He has also worked in civil litigation and criminal defense, handling more than 40 trials, both jury and non-jury. Burk received his law degree from the University of South Carolina and his bachelor's degree from Palm Beach Atlantic University.

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