Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

Batista v. Publix Supermarkets, Inc., decided on 10/22/2008, involved a statute of limitations question.  Under the pre-1994 version of the statute, a workers' compensation carrier waives any statute of limitations defense to which it might otherwise be entitled if it fails to assert that defense "at the first hearing of such claim in which all parties in interest are given reasonable notice and opportunity to be heard."  See §440.19(1)(a), Fla. Stat. (1986).  In Batista, the claimant had filed a petition for benefits in 1996.  At the same time he filed a request to produce and later, a motion to compel.  Notice of a hearing on the motion to compel was sent to the carrier's adjuster and to the employer in 1997, but neither appeared at the hearing.

 

The 1996 petition remained pending and was not heard until 2007, more than 10 years after it was filed.  At that time, the carrier appeared and asserted that the petition was barred by the statute of limitations because they had not paid any benefits on the claim since 1990, but the claimant argued that the carrier had waived its defense by its failure to assert it at the 1997 hearing on the motion to compel.  Was the hearing on the motion to compel the "first hearing" at which "all parties in interest [were] given reasonable notice and opportunity to be heard"?  The JCC said no, finding that the hearing on the 1997 motion to compel had been inadequately noticed.  But the First DCA reversed this decision, noting that the notice of hearing expressly provided that copies were sent to all parties.  Therefore, the court concluded, the statute of limitations did not bar the claim.

 

Note:  Under the current version of §440.19(4), Fla. Stat., the carrier waives its statute of limitations defense unless it "advances the defense. . . in its initial response to the petition for benefits."

• Email This
• Print
• Comments
• Trackbacks

In Branham v. TMG Staffing Services, a case which I wrote about here, the First DCA reversed an order in which the JCC had found that there was "no competent substantial evidence" that the claimant had ever received from the carrier the informational brochure required by §440.185(4), Fla. Stat.  Based upon this finding, the JCC concluded that the E/C was not estopped from asserting a statute of limitations defense to the payment of the claim.  On appeal, however, the First DCA concluded that the JCC should have applied the "preponderance of the evidence" standard to this issue rather than the "competent substantial evidence standard.  I wondered at that time why any such error was not harmless since "preponderance of the evidence" is a higher evidentiary standard than "competent substantial evidence."

 

On rehearing, a majority of the panel agreed, withdrawing its previous opinion and issuing this opinion on 10/22/2008.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

Branham v. TMG Staffing, decided on 6/18/2008, is another case involving whether the employer is estopped from asserting the statute of limitations as a defense to a claim where it allegedly failed to mail to the claimant the informational brochure mandated by §440.185(4).  The claims adjuster in the case admitted that she had sent the brochure to the wrong address.  Nevertheless, because he later returned to the employer some executed forms which were also contained in the same mailing, the employer contended that he obviously had in fact received the brochure.  The JCC agreed, finding that there was "no competent substantial evidence" that he did not receive the brochure.

 

The First DCA reversed the JCC's order, concluding that he had applied an incorrect legal standard in reaching his conclusion.  Specifically, said the court, the JCC should have applied the "preponderance of the evidence" standard instead of the "competent substantial evidence" standard in deciding whether the claimant had received the brochure.  The court therefore remanded the case to the JCC for that determination.

 

Maybe I'm confused, but isn't "preponderance of the evidence" a higher evidentiary standard than "competent substantial evidence"?  The court certainly said so in Schafrath v. Marco Bay Resort, Ltd., 608 So.2d 97 (Fla. 1st DCA 1992).  And if so, isn't the JCC's error here harmless?  In other words, if there isn't even any "competent substantial evidence" to prove that the claimant did not receive the brochure, isn't there also no "preponderance of the evidence" that he didn't?

• Email This
• Print
• Comments
• Trackbacks

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. 

Continue Reading...

• Email This
• Print
• Comments
• Trackbacks

Section 440.19(1) and (2), Fla. Stat., says that a petition for benefits is barred by the statute of limitations unless it is filed within two (2) years from the date of accident, or within one (1) year from the time the employer last paid compensation or provided medical care to the claimant, whichever is later.  But if an employer misleads the claimant - even unintentionally - regarding his rights under the law so that he fails to file his petition timely, the courts will hold that the employer/carrier is "estopped" from asserting the defense.  That's what happened in Roberson v. St. Johns Co. School Board, Case No. 1D06-5839, decided on 1/23/2008.

 

Ms. Roberson sustained a work-related accident which was initially accepted as compensable by the Employer/Servicing Agent ("E/SA).  Later, however, the E/SA filed a Notice of Denial (Form DWC-12) in which they denied that further compensation benefits or medical care were due because Roberson's disability allegedly resulted from a pre-existing condition.  The next day, the E/SA filed with the Division of Workers' Compensation and forwarded to Ms. Roberson a Notice of Action Change (Form DWC-4) in which it reported that her permanent injury rating was zero percent.  Three weeks later, however, the E/SA received from Ms. Roberson's treating physician a report (Form DWC-9a) indicating that she had in fact sustained a 10% permanent impairment.  The E/SA did not file that form with the Division of Workers' Compensation or send a copy of it to Roberson.

 

Roberson eventually learned about the physician's report and filed a petition for benefits, but not until after the statute of limitations ordinarily would have run.  The First District Court of Appeal held that because Roberson had no reason to know of her physician's 10% rating and the E/SA failed to correct the rating upon receipt of that information, the E/SA were estopped from asserting the statute of limitations as a defense to the payment of benefits.

• Email This
• Print
• Comments
• Trackbacks

Unless a petition for benefits is filed within two years from the date of accident, or within one year from the date that the employer last pays compensation or furnishes medical treatment, whichever occurs later, the statute of limitations will expire on a Florida workers' compensation claim. In Troche v. Geico, however, decided on 10/5/2007, the First DCA relied upon a long line of previous decisions and held that in cases involving "repeated trauma," "exposure," or "occupational disease," the statute of limitations never expires so long as the employee continues to be exposed to the harmful conditions which caused his disability in the first place because each exposure in effect constitutes a "new accident."

 

The claimant in Troche had developed carpal tunnel syndrome in both wrists as a result of using his computer at work.  The carrier established a 1999 accident date and provided some brief medical care thereafter, but the claimant did not file his petition for benefits until 12/4/2003, well after the limitations period ordinarily would have expired.  The evidence showed, however, that he continued to be employed and exposed to the harmful conditions on the job until September 2003.  Therefore, said the First DCA, his petition was timely.  You can read the JCC's order here.

• Email This
• Print
• Comments
• Trackbacks