Claimant Fails to Avoid Statute of Limitations With Late-Filed Petition
Under longstanding case law, once a petition for benefits has been filed it remains pending until it is dismissed or otherwise disposed of by the JCC. See Turner v. Keller Kitchen Cabinets, Inc., 247 So.2d 35 (Fla. 1971). Section 440.25(4)(i), Fla. Stat., however, permits the JCC, upon motion, to dismiss a petition for benefits where no action has been taken to prosecute the petition for 12 months. And when a petition is dismissed, the statute of limitations is not tolled during the period that the dismissed petition was pending; rather, the statute will run as if the dismissed petition had never been filed. See McBride v. Pratt & Whitney, 909 So.2d 386 (Fla. 1st DCA 2005).
So what if the E/C moves to dismiss a pending petition for lack of prosecution and then, before the JCC rules on the motion, the claimant files another petition solely for the purpose of avoiding a statute of limitations defense? That petition is filed too late to toll the running of the statute of limitations said the First DCA in Akers v. State, Dept. of Corrections, decided on 7/30/2008.
