The 1st DCA just issued a good ruling regarding the Statute of Limitations, Ring Power Corp. v. Murphy, 17-1316.
In this case, the claimant had a fusion with rods and screws in 2006. He last had treatment in 2013, and when he filed a PFB in 2016, the Employer/Carrier denied the claim as the SOL had expired.
(Good practice reminder, you MUST cite the SOL defense in the first responsive pleading or you waive it as a defense. Always check on older claims before you respond)
In the old old law, pre-1994, having a prosthetic device tolled the SOL. The legislature removed that provision for dates of accident after 1/1/94.
The argument then turns on the ruling from the Gore case (2010). In Gore, the claimant had a total knee replacement, which he “used” every day, therefore providing “treatment”. That medical apparatus being continually used provided treatment and tolled the SOL.
In the Murphy case, the court noted that once the fusion was healed, the pins and rods no longer served any purpose, even though they remained attached and in the claimant’s body. Therefore, the claimant was not “using” the pins and rods, and they were not providing treatment. The presence of pins and rods did NOT toll the SOL.
So to determine if you have potential infinite SOL exposure on your case, look at the medical apparatus. Is it something that replaces a part of the body, like a knee replacement, a tooth, etc…, or is it something temporary like pins, hernia mesh or a plate.
Here’s a link to the case.
Morgan Indek | Partner