The Employer/Carrier was awarded costs as the prevailing party following the JCC's denial of a 2008 PFB in the case of Oscar Hernandez v. Manatee County Government/Commercial Risk Management, Inc.(opinion released December 8, 2010).  Some of the costs were for depositions taken prior to the filing of the 2008 PFB which sought PTD benefits.  Depositions in this case were taken both prior to any PFB's being filed and after the claimant's filing of a 2007 PFB.  Following a hearing on the 2007 PFB the JCC found that the E/C was not the prevailing party and was not entitled to recover the costs of the depositions taken to that point.  These same depositions were then used to defend the 2008 PFB.  The claimant then argued that the E/C was barred from recovering the costs of the depositions following the resolution of the 2008 PFB by the doctrine of res judicatasince the E/C was already denied recovery.  The First DCA upheld the JCC's decision to award these costs to the E/C.  Both the JCC and the appellate court appear to applaud the E/C's questioning in the depositions that included "foresight in covering the issues raised in the 2007 PFB, as well as issues that could, based on the facts in this case, foreseeably arise in the future".  This allowed the depositions to be used to successfully defend against the issues raised in the 2008 PFB resulting the E/C's right to recover costs as the prevailing party.

The result of this case demonstrates the benefit of conducting complete discovery as a case proceeds even though the discovery may not pertain to an issue pending at the time.  If the issue may reasonably arise in the future, and the attorney can anticipate it, the discovery should be taken without worry that it will not be a recoverable cost in later litigation.

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