E/C Can Compel Claimant's Attorney to Testify In Support of Statute of Limitations Defense
Section 440.185(4), Fla. Stat., requires the workers' compensation carrier, within three days of learning of an on-the-job accident, to send to the injured worker a copy of this informational brochure which explains to him his rights and obligations under the Florida Workers' Compensation Law, including the fact that the statute of limitations may expire on his claim after one year from the last payment of compensation or furnishing of medical care. The First DCA has held that where the carrier fails in this statutory obligation, it is barred from raising the statute of limitations as a defense to a late-filed petition - unless, that is, it can prove that notwithstanding its failure the claimant had "actual knowledge" of his obligations "from any source." See, e.g., Fontanills v. Hillsborough Co. School Bd., 913 So.2d 28 (Fla. 1st DCA 2005).
In Waffle House v. Scharmen, decided on 5/21/2008, the claimant contended below that the employer/servicing agent were estopped from raising the statute of limitations as a defense to his petition because of their failure to provide the required notice. The employer/servicing agent denied that they had failed in their statutory obligation. But even if they did, they said, the claimant might have had "actual knowledge" of the limitations period through communications with his attorney. To prove such knowledge, they tried to elicit testimony from the claimant's attorney about his communications with his client.
The JCC denied denied their request to call the attorney as a witness, however, concluding that communications between the claimant and his attorney were privileged. The JCC went on to find that the claimant did not receive the appropriate statutory notice from the carrier and that therefore his petition for benefits, filed more than one year after the last furnishing of medical care by the employer/servicing agent, was not time-barred.
The First DCA reversed the JCC's order, however, and remanded the case for further proceedings, concluding that the employer/servicing agent should have been allowed to present testimony from the claimant's attorney in support of its defense. The court held that "[a]n attorney's communication of the applicable statute of limitations to a client is mere recitation of statutory language," and that such communications are not privileged. [Full disclosure: I served as appellate co-counsel for the Claimant/Appellee in this case].
