A Force to Be Reckoned With: Prosthetic Devices and Statute of Limitations Defenses

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By: Faith Searles, Associate, Tampa

How familiar are you with Newton’s third law? By way of a refresher, that tenet holds, “tfor every action there is always an equal and opposite, or contrary, reaction.” While many of us likely harken back to our seventh grade science class, this law also may bring to mind many of the changes of late in workers’ compensation. In many ways, Chapter 440 has been transfigured over the years by forces much like those at work in Newton’s third law of motion; however, instead of the physical forces such as friction, gravity or magnetic force we learned about in class, the landscape of the current workers’ compensation law has been transformed by the competing forces of the Legislature and the courts. And so it goes, action and reaction, force and opposing counterforce, seemingly forever at interplay. Well, where does this leave us? As with most issues in workers’ compensation, the answer is “it depends.”

The Statute of limitations (SOL) was originally meant to be a rather straight-forward bright line rule. The concept is simple: when the period of time specified in the statute passes, a claim might no longer be valid. In other words, courts have no jurisdiction over claims filed after the statutory limitation has expired. Clearly, the Legislature enacted such a law to end a claimant’s ability to revive an expired claim. In reaction, the courts have countered this limitation by carving out several exceptions. One such powerful exception that can effectively stop the clock expiring is the use or implantation of prosthetic devices.

The Florida Supreme Court defined a prosthetic device as “an artificial substitute or replacement, whether external or implanted, for a missing or defective natural part of the body which serves a relatively permanent functional or cosmetic purpose.” Cash v. Univ. Rivet, 616 So.2d 446, 448 (Fla. 1996).  Ancillary to this is the rule that a “medical device,” such as a knee or back brace, TENS unit, or spinal stimulators, also tolls the SOL if the E/C is aware the claimant continues to use the device. See Fuster v. Eastern Airlines, 545 So.2d 268 (Fla. 1st DCA 1988); see also Taylor v. Metro Dade County, 596 So.2d 798 (Fla. 1st DCA 1992).

Generally, a petition must be filed within two years of the date of accident, or one year since the last payment of indemnity or provision of remedial medical treatment, whichever is later. Before1994, the workers’ compensation law specifically provided that “no statute of limitations shall apply to the right for remedial attention relating to the insertion or attachment of a prosthetic device to any part of the body.” FS 440.19(1)(b). In other words, prosthetics were exempt from the statute of limitations. Then, in 1994, the Legislature repealed this section, thereby intending that prosthetic devices be subject to the current two year/one year rule of F.S. 440.19. This change spurred the courts to an equal and opposite reaction.

In Gore v. Lee County School Board, 43 So.3d 846 (Fla. 1st DCA 2010), the claimant suffered a serious compensable injury that required knee replacement surgery.  As part of that procedure, a metallic prosthesis was implanted.  The claimant’s doctors then placed the claimant at MMI, and opined that she would require a replacement prosthetic every 7 to 10 years.  Seven years later, the claimant returned to her doctor in need of the replacement prosthesis.  The claimant filed a petition seeking the same, and the E/C denied the replacement , asserting the statute of limitations defense as more than 2 years had passed since the accident and it had been over 1 year since the last date of authorized treatment. The JCC agreed with the E/C and the claimant appealed.  On appeal, the First DCA reversed the JCC’s finding that the SOL had expired. The Court found that the claimant successfully demonstrated that she continuously used a prosthetic device and that the employer/carrier had actual knowledge of that use, and,  because use of the prosthesis was tantamount to use of a medical apparatus pursuant to FS 440.19(2), the statute of limitations in FS 440.19(1) was tolled; therefore, the claimant’s claim for benefits should not have been denied.

The Court in Gore reasoned that a prosthetic device such as pacemaker or prosthetic limb mitigates the effects of an injury, just as a back brace or TENS unit, the devices at issue in Fuster and Lee, cited above.  The Court goes on to explain, “[t]his interpretation recognizes that a medical apparatus, such as prosthesis, can require further treatment at any time after its insertion into the body…. Certainly, if a claimant is continuously using a medical apparatus that is known to deteriorate or wear out,” the E/C “should bear the burden of maintaining the apparatus and its functioning ability.” Gore, 43 So.3d 846 at 849.

The Gore ruling greatly diminished the force of the statute of limitations as envisioned by the Legislature and seemingly opened the flood gates to any number of such devices. This brings to mind Newton’s first law of motion, the law of inertia, which states that an object in motion remains in motion. To prevent all claims involving medical devices from continuing in perpetuity, the courts limited this effect in a series of cases by excluding implants or medical devices that are merely used to temporarily stabilize or anchor allowing an injury to heal.  Once healed, continued use of the object is no longer necessary as the body has regained the ability to function without it. Examples of implants that fall within the medical device category but do not toll the SOL  include internal staples, surgical anchors used to internally fixate a  repaired rotator cuff or mesh used to stabilize a pelvic floor which is not removed but becomes integrated into the now independently functional body part. Moreover, transplanted living tissue is not a prosthesis as it is not artificial as defined by the Supreme Court in Cash. Colonial Oaks Apartment v. Hood, 680 So.2d 446, 448 (Fla. 1st DCA 1996).  In essence, the implant is no longer in “use” by the claimant. This is in contrast to implants that act as a part of the natural body for functional or cosmetic purposes such as breast implants, a pacemaker, or total knee replacement.

Moving forward we are forced to recognize Newton’s 3rd, creeping past a science law and into laws written by the legislature as the Courts step in to ‘counter’ the intent of the Legislature. In other words, when lawmakers attempt to include prosthetic devices in SOL laws, much like two brawling physicists, the Courts have replied: “let me atom.”