Responding to Defective Petitions for Benefits 2: Motions for Summary Final Order

21 Jun, 2019 Bruce Burk


Sarasota, FL ( - This will continue a series of articles on responding to defective Petitions for Benefits. It is usually the case that adjusters are interested in seeking to close a file as soon as possible. There are certain kinds of denials where attorneys can seek to have the matter decided via summary order prior to a merits hearing. Motions seeking summary final order are a great strategy to resolve denials regarding no employer/employee relationship, incorrect date of accident, no coverage, and lack of jurisdiction.

Regarding no employer/employee relationship, let’s assume the date of accident in the Petition is April 5, 2019 but the file materials show that the claimant’s hire date is April 7, 2019. In this situation, you could file a motion for summary final order to resolve the issue. This would require an affidavit from an employer representative stating under oath that the claimant was not working on the alleged date of accident. Similar actions could be taken in a situation where the date of accident in the Petition is April 7, 2019 but the file shows that the claimant was terminated on April 5, 2019.

With respect to incorrect dates of accident let’s say that you receive a Petition for Benefits listing March 19, 2019 as the date of accident. However, an interview with the employer representative reveals that the accident actually happened on March 10, 2019 while the claimant was working. To resolve this issue, you once again could get an affidavit from an employer representative stating that there was no accident within the course and scope of employment on the alleged date of accident.

One thing that does happen in an incorrect date of accident situation is attempts to amend the defective petition. This can create issues with attorney’s fees and costs. Amendments to Petitions where there is a dispute of benefits can violate the employer/carrier’s due process rights because they should only have to respond to the alleged facts put forth by the claimant. Arguably the best resolution for this issue is a dismissal of the defective petition and the filing of a new one.

For situations involving no coverage, let’s assume you receive a Petition with a March 25, 2019 date of accident. However, after further investigation, you see that the employer’s insurance coverage expired on March 15, 2019. Here, you would need an affidavit from an adjuster or underwriter stating that there is no insurance coverage on the alleged date of accident so the carrier/servicing agent should be dismissed from the case.

Yes, it is possible in these three aforementioned situations the claimant could file a deposition transcript or affidavit which contradicts your affidavit. However, making the attempt to seek a summary order can still be worthwhile.

Lastly, let’s assume a scenario where the claimant is seeking a benefit which is outside the court’s jurisdiction, such as a request for the employer to redecorate their entire building to install ergonomic efficient equipment. Here, you could potentially seek a summary order without an affidavit because only a legal argument is being made instead of a factual one.

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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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