Greetings,
Well, in light of the Estes case and the drastic changes to how the Statute of Limitations is now applied, I called the FL Division of WC to see if they had any plans to update the Informational Brochure that all carriers are required to send in the initial packet to the claimant.
The short answer from the Division is they have no authority to change the Brochure, the Fl Legislature needs to amend the statute. However, that is unlikely because the 1st DCA in Estes didn’t say the SOL statute was wrong and needed to change…they just read it and applied it differently than we had for decades.
In order for the E/C to prove an SOL defense, we have the burden of showing the claimant was made aware of the SOL. One way to do that was to depose the claimant and confirm receipt of the initial packet and Brochure. Well all Brochures that have been sent out to date have the (now) incorrect explanation, and they will continue to do so for the foreseeable future.
The Brochure was last updated: English version- November 2010, Spanish version updated Feb 2014
So, we cannot use the Brochure to prove our SOL defense anymore. I know many carriers also have the SOL information in the MMI co-pay letter that is sent to claimants. Make sure yours is updated (I’ll be glad to help, I have already re-written half a dozen for carriers). We may also want to think about creating another letter or alert to be put in the initial packet that has the correct application of the SOL so they are given the correct information at the onset of the claim.
- And while digging into this, believe it or not, the Brochure still says claimants are only eligible for 104 weeks of TTD/TPD. This is despite the FL Supreme Court decision in the Westphal case 10 years ago striking that and replacing it with 260 weeks.
Note: The maximum length of time you can receive temporary total or partial benefits is 104 weeks or until the date of MMI is determined, whichever is earlier.
The reason must be the actual FL WC statute has not been amended to comport with the FL Supreme Court ruling (440.15(2)(a) TTD and (4)(e) TPD still say 104 weeks) . The law is 260 weeks based on the Westphal caselaw, no matter what the 440 law says.
So, the Informational Brochure sent to claimants to advise of them of their rights is not so informational after all.
Join us Friday night 7/31/26 in Tampa for our 11th annual CEU/Dinner event.
Sincerely,
Morgan Indek | Managing Partner