If any of you have attended our firm’s CEU’s or webinars over the years, you have likely heard us explain the Florida WC Statute of Limitations as “2 years from the date of accident or 1 year from the last provision of a benefit, whichever is later.” And that is how the courts and everyone has conducted themselves in understanding and applying the statute of limitations. If it has been more than 2 years since the accident, and if the claimant goes 1 year without receiving any benefits, the SOL has expired. A pending PFB before the SOL expires tolls the SOL, as does a reservation on attorney fees, but regardless, everyone in the industry had a consensus on how to calculate the time: “2 years from the date of accident or 1 year from the last provision of a benefit, whichever is later.”
So if a claimant last gets a benefit 2 years and 6 months after the accident, the SOL would expire 3 years and 6 months after the accident (one year after the last benefit was provided because the two years from the date of accident already ran out)
“We thus hold that a claimant is barred from filing a petition for benefits unless the claim is filed during the longer of the following two periods of time: (1) within two years from the date of injury; or (2) within one year from the payment of indemnity benefits or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits.” Claims Mgmt., Inc. v. Philip, 746 So. 2d 1180, 1182 (Fla. 1st 1999) (thanks to Ryan Knight of our Miami office for the citation)
Well, I have received a few questions about a case from the 1st DCA issued on 5/31/23, Annalie Ortiz v. Winn-Dixie, Inc (1D21-0885). In it, the DCA laid at a novel and vastly different way to calculate the SOL periods. HOWEVER, and a big however, the claimant has requested a re-hearing, so the court may very well retreat from their, shall we say, interesting application of the SOL. When we get a more definitive answer, I will update everyone. (I’m not attaching the case yet on purpose in case it gets reheard and changed.)
Just for your knowledge, and please do not commit this to memory as it may change, here is what the Ortiz case said. The DCA stated the 2 years is a “master countdown timer” that stops for 1 year every time a benefit is provided. As best I can ascertain, they are looking at the 2 years as a bucket of time, that pauses every time a benefit is provided. So if a claimant treats from the date of accident for 6 months, they have not used any of their “2-year master countdown” yet. Under the way we have always applied the SOL, it would run on 2 years from the date of accident in this example. The way explained by the DCA in the Ortiz case, the claimant had not used any of her 2-year bucket yet, so 1 year from the last provision of a benefit would be 1 year and 6 months from the date of accident, and then you start the 2 year clock. So in their take, it appears the SOL would not run for 3 years and 6 months after the accident, a year and a half longer than I would have previously said.
If this hurts your head, you are not alone. For now, I recommend continuing with our traditional interpretation, and I will let you know when we have something more definitive from the DCA. I will have the pleasure of explaining this in detail at our firm’s dinner/CEU in Tampa on 7/28 if this remains the law. Hope to see you there! RSVP to email@example.com.
Here is the SOL Statute.
40.19 Time bars to filing petitions for benefits.—
(1) Except to the extent provided elsewhere in this section, all employee petitions for benefits under this chapter shall be barred unless the employee, or the employee’s estate if the employee is deceased, has advised the employer of the injury or death pursuant to s. 440.185(1) and the petition is filed within 2 years after the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.
(2) Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment. This tolling period does not apply to the issues of compensability, date of maximum medical improvement, or permanent impairment.
(3) The filing of a petition for benefits does not toll the limitations period set forth in this section unless the petition meets the specificity requirements set forth in s. 440.192.
(4) Notwithstanding the provisions of this section, the failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits. If a claimant contends that an employer or its carrier is estopped from raising a statute of limitations defense and the carrier demonstrates that it has provided notice to the employee in accordance with s. 440.185 and that the employer has posted notice in accordance with s. 440.055, the employee must demonstrate estoppel by clear and convincing evidence.
Morgan Indek | Managing Partner