McLymont v. A Temporary Solution

• Decision Date: 22 July 1999
• Docket Number: No. 98-1580.,98-1580.
• Citation: 738 So.2d 447
• Parties: John McLYMONT, Appellant, v. A TEMPORARY SOLUTION, ATS West, Inc. and AGC Self-Insurers Fund, Appellees.
• Court: Florida District Court of Appeals

738 So.2d 447

John McLYMONT, Appellant, v. A TEMPORARY SOLUTION, ATS West, Inc. and AGC Self-Insurers Fund, Appellees.

No. 98-1580.

District Court of Appeal of Florida, First District.

July 22, 1999.

Clark W. Berry, Ft. Myers, and Bill McCabe, Longwood, for Appellant.

Gerald W. Pierce, of Henderson, Franklin, Starnes & Holt, P.A., Ft. Myers, for Appellees.

PER CURIAM.

The claimant, John McLymont, appeals an order of the judge of compensation claims (JCC) denying authorization for dental care. The critical issue in this appeal involves whether a claimant may voluntarily dismiss one of several ripe claims included in a petition for benefits at, or just prior to, the final hearing and then later refile a petition for that claimed benefit, in this case dental care. Because we find that traditional principles of res judicata apply here and that appellant had alternatives available to him other than taking a voluntary dismissal of the dental care claim, we affirm.

Appellant had scheduled a dentist's deposition for a date just before the final hearing, but the deposition had to be canceled and could not be rescheduled prior to the hearing. The final hearing proceeded on all claims except the dental care claim, and the JCC entered a final order as to those claims, noting that appellant had voluntarily dismissed the dental care claim during, or just prior to, the hearing. When appellant subsequently refiled the dental care claim, the employer/carrier argued that the claim was ripe at the time of the original final hearing and was, therefore, waived when it was voluntarily dismissed. The JCC accepted this argument and denied the claim for dental care. We agree that, applying principles of res judicata, appellant waived the dental care claim because it was ripe at the final hearing and should have been determined at that time. See, e.g., Artigas v. Winn Dixie Stores, Inc., 622 So.2d 1346, 1348 (Fla. 1st DCA 1993)

("Generally, claims for compensation benefits should be determined at a benefits hearing if they are mature because piecemeal litigation of claims after maturity is not permitted. Therefore, compensation claims which are not timely litigated may be waived by application of the doctrine of res judicata." (citations omitted)); Turner v. Rinker Materials, 622 So.2d 80, 83 (Fla. 1st DCA 1993) ("The general rule, with a few exceptions not pertinent here, is that a claim that is mature at the time of an earlier proceeding will be subsequently barred by its omission from that proceeding."); Brantley v. Allen, 538 So.2d 1338, 1339 (Fla. 1st DCA 1989) ("It is well established that any mature claim for worker's compensation benefits should be raised at the pretrial hearing and litigated at the final hearing, and that only immature claims should be postponed until they are ripe for hearing. A claim which is mature at the time of an earlier proceeding will be barred by its omission therefrom."); Florida Power & Light Co. v. Haycraft, 421 So.2d 674, 675 (Fla. 1st DCA 1982) ("Claims for compensation benefits should be determined at a hearing if they are mature and only...