State News : Florida

Recently, Florida’s First District Court of Appeal (which handles all workers’ compensation appeals in the state) dramatically changed how the Statute of Limitations is applied in Florida workers’ compensation claims. The SOL is set forth in Section 440.19, Florida Statutes, and provides as follows:

(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.

Historically, this has been interpreted to mean that the SOL expires upon the later of two years from the date of the accident or one year from the date of the last provision of benefits. However, in the recent case of Estes v. Palm Beach County School District, the First DCA reshaped the interpretation of Section 440.19 by redefining the word “toll” as it is used in 440.19(2). Under the historic interpretation, the word “toll” is defined as “extend,” meaning that the provision of medical or indemnity benefits extends the expiration of the SOL for one year. In Estes, the Court redefines “toll” to mean “suspend, stop temporarily, or abate.” Specifically, the Court stated “[w]e therefore hold en banc that the tolling provision in § 440.19(2) suspends or stops temporarily the limitations-period clock established in subsection (1), instead of extending separate one-year limitations periods for claimants to file claims in these cases.”

The Court examined how it had previously used “toll” in its prior decisions and found that their earlier decisions did not properly interpret the term as it is used in Section 440.19. They performed a lengthy textual analysis of how “toll” had been used in various prior cases and statutes in other contexts (ex: medical malpractice and property insurance claims) and determined that the correct interpretation of “toll” is to pause, rather than to extend.

In Estes, the claimant was injured on September 30, 2021. She last received authorized treatment on January 26, 2023. Under the historic SOL interpretation, the SOL would have run on January 26, 2024, one year from the last provision of benefits. However, the Court here held that Section 440.19 provides two separate clocks: a one-year clock which begins to run after each provision of benefits and resets upon each additional provision of benefits, and a two-year SOL master clock which does not even begin to run until the one-year clock has expired. The Court stated:

And so, here, under § 440.19, after an employee knows or should have known of a qualifying workplace injury, the two-year limitations-period clock begins to run. But then, if an E/C provides benefits after the injury, the limitations-period clock is stopped while the one-year tolling clock begins running (and then restarts after every subsequent provision of a benefit). The limitations-period clock restarts again one year after the provision of the last benefit.

 Put a different way, the two-year SOL creates a bank of 730 days that must run out before the SOL has expired on a claim. Days are subtracted from this bank only if it has been more than one year since the last provision of benefits. If benefits are provided, a new one-year clock begins to run, and days are not subtracted from the bank until the one-year clock expires. This effectively creates an SOL that is three years from the last provision of benefits minus any time that elapsed between the date of accident and the first provision of benefits.[1] The Employer/Carrier in Estes is seeking review from the Florida Supreme Court, but the two-clock method set forth in Estes remains the applicable SOL for now.

Noah Vollmer

Bleakley Bavol Denman & Grace

nvollmer@bbdglaw.com

813-221-3759 

In a recent case, Steak ‘N Shake, Inc. v. Spears, Florida’s Fifth District Court of Appeal affirmed that employees who sustain alleged injuries in the workplace cannot bypass the workers compensation system to bring a tort claim against their employer. In this case, the injured worker suffered severe emotional distress after a robbery in the workplace where she was held at gunpoint, forced into a backroom, and had her life repeatedly threatened by the gunman. Importantly, although the gunman grabbed the injured worker by her neck and shoulder, she admitted she did not sustain any physical injuries. Florida workers compensation law contains an express limitation on benefits available for mental and nervous injuries. Specifically, Section 440.093(1), Florida Statutes, states:

A mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment. Nothing in this section shall be construed to allow for the payment of benefits under this chapter for mental or nervous injuries without an accompanying physical injury requiring medical treatment. A physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter.

                The employee chose not to file a workers compensation claim and instead filed a civil tort suit directly against her employer for emotional distress suffered as a result of the robbery. In response, Steak ‘N Shake claimed entitlement to workers compensation immunity, arguing that because the employee failed to request workers compensation benefits, she had not taken the first step to determine whether she sustained compensable injuries during the robbery. At the trial court level, the court sided with the employee and ruled that the tort claim was outside the scope of Florida workers compensation law, as the employee had not sustained any physical injuries, meaning she was “never entitled to workers compensation benefits.”

                On appeal, the Fifth DCA reversed the trial court's decision and held that an employee may not pursue a tort claim against their employer in circuit court without first seeking a determination as to whether they sustained a compensable injury and are entitled to workers compensation benefits. The Fifth DCA highlighted Section 440.13(1)(d), Florida Statutes, which defines “compensable” to mean “a determination by a carrier or judge of compensation claims that a condition suffered by an employee results from an injury arising out of and in the course of employment.” In other words, only insurance carriers and workers compensation judges—not circuit court judges or injured employees themselves—have the authority to determine compensability. Because the injured worker chose to file in circuit court rather than file a workers compensation claim, no carrier or judge of compensation claims had made a determination as to whether her injuries were compensable. Neither the injured worker herself nor the trial court judge had the authority to make this determination, and the trial court order allowing the tort case to proceed against the employer was vacated and remanded.

                What this means for Florida employers is that employees must first seek workers’ compensation benefits before filing a civil tort suit against their employer. They cannot make a compensability determination on their own or seek to have a circuit court judge do it for them. This is true even in cases of purely emotional or mental injuries, which generally are not compensable under Florida law. In Spears, or in a similar case where the facts would play to jurors’ emotions and could result in an excessive jury verdict, this gives employers options for deciding how to handle these difficult claims. 

Noah Vollmer, Esq. Bleakley Bavol Denman & Grace

                The general understanding of Section 440.19, Florida Statutes, which sets forth the statute of limitations for workers’ compensation claims, is that an injured employee has two years from the date they knew or should have known that their injury arose out of work performed in the course and scope of their employment in which to file a petition for benefits. Thereafter, payment of any indemnity benefit or furnishing medical treatment tolls the limitations period for one year. In other words, the statute of limitations is two years from the date of accident or one year from the last provision of benefits, whichever is later.

                A pair of recent decisions from the First District Court of Appeal offer a new method of interpreting Florida’s statute of limitations. Both opinions arise from the same case, Ortiz v. Winn-Dixie, Inc. In this case, a Winn-Dixie employee tripped and fell while working in 2003, sustaining injuries to her right side which eventually resulted in having her right kidney removed. The carrier provided all necessary treatment and authorized Ms. Ortiz to treat with a new physician, Dr. Young, beginning in 2015. Ms. Ortiz treated with Dr. Young eight times between September 2015 and her last authorized appointment with Dr. Young in January 2019. Unbeknownst to the carrier, Ms. Ortiz had seen Dr. Young twice in August 2019 and again in April 2020. For reasons unknown, Dr. Young requested that these visits be billed to Ms. Ortiz’s personal health insurance. The Carrier contacted Dr. Young’s office in May 2020 and inquired about any recent dates of service. Upon learning of the August 2019 and April 2020 visits, the carrier filed a notice of denial which effectively deauthorized Dr. Young. Ms. Ortiz then filed a petition for benefits seeking authorization of a return appointment with Dr. Young, which the carrier denied on the grounds that the statute of limitations had expired, as more than one year had passed since the last provision of benefits in January 2019. The Judge of Compensation Claims sided with the carrier, and Ms. Ortiz appealed the ruling.

                In its initial opinion published in May 2023, the First DCA affirmed the trial court ruling and held that the August 2019 and April 2020 visits were not “authorized treatment” which would toll the statute of limitations because Ms. Ortiz did not establish that these visits were in connection to her compensable injuries. However, the Court went beyond this and offered a new framework for analyzing Florida’s statute of limitations. The Court stated that the initial two-year period following an accident serves as a “master timer” that stops for one year each time a benefit is provided. In other words, the “master timer” is a period of 720 days, and days are only subtracted from the 720 when it has been more than one year from the last provision of benefits. If an injured employee has not used all of their 720 days, the statute of limitations still has not expired, even if more than a year has passed since the last provision of benefits. Ms. Ortiz moved for rehearing, and the carrier notably requested affirmance of the decision but without the aforementioned statute of limitations analysis.

                Just recently, on December 23, 2024, the First DCA published its opinion on the motion for rehearing. To further add to the confusion, the First DCA granted the motion for rehearing, set aside the trial court order, and held that the statute of limitations had not expired in Ms. Ortiz’s case. The Court reasoned that the visits to Dr. Young in August 2019 and April 2020 were no different than the visits to Dr. Young that the carrier had authorized and paid for since 2015. The only difference here was that the August 2019 and April 2020 visits were billed to Ms. Ortiz’s personal insurance. The Court held that it is the furnishing of treatment—not the billing of treatment—which tolls the statute of limitations. Which insurance carrier gets billed for treatment has no legal bearing on the statute of limitations, and an injured employee cannot be prejudiced because of a billing issue.

                The majority opinion contains no mention of the “master timer” statute of limitations analysis. However, in a lengthy concurring opinion, Judge Tanenbaum (who authored both the Court’s original 2023 opinion and the opinion on the motion for rehearing) essentially doubled down on his “master timer” framework and again advocated for using this method to calculate when the statute of limitations expires. Notably, in a separate concurring opinion, Judge Bilbrey wrote that he “join[ed] the majority opinion in full,” that “Judge Tanenbaum’s concurring opinion … is not the opinion of this court,” and that Judge Tanenbaum’s “reasoning may be found to be persuasive or may be discarded.” Judge Tanenbaum countered that the Court did not adopt his analysis “not because it is not valid, but because Ortiz did not raise it.”

                Thankfully, the Court has (at least for now) retreated from the “master timer” statute of limitations analysis. However, as Judge Tanenbaum noted in his concurrence, several judges used this method to address statute of limitations issues between the first and second Ortiz opinions, and it is a near certainty that claimants’ attorneys will continue to advance this argument moving forward. Accordingly, while the conventional understanding of the statute of limitations set forth above remains the current state of the law, defense attorneys need to be aware of the “master timer” analysis in order to combat it. 

In a recent decision, the Florida First District Court of Appeal reaffirmed that the payment of fees and costs to a claimant’s attorney is not a benefit within the meaning of the workers’ compensation statutes which serves to toll the statute of limitations. American Airlines Group v. Lopez, 2024 WL 2306999 (Fla. 1st DCA May 22, 2024). As an initial matter, Section 440.19(1), Florida Statutes provides that all petitions for benefits are barred unless they are filed within two years of the date on which the injured employee knew or should have known that their injury arose out of work performed in the course and scope of their employment. Section 440.19(2) provides that payment of any indemnity benefit or the furnishing of medical treatment tolls the statute of limitations for one year from the date such benefits were provided. In other words, the applicable statute of limitations period in Florida is the later of two years from the date of the accident or one year from the date of the last indemnity payment or authorized treatment.

In the Lopez case, the claimant suffered a compensable accident on August 8, 2019, and filed two petitions for benefits on July 24, 2020. The Employer/Carrier/Servicing Agent provided both medical and indemnity benefits. The last medical bill was paid September 22, 2020, and the last indemnity payment was made November 13, 2020. The issue of entitlement to attorney’s fees and costs remained pending from the claimant’s July 24, 2020 petitions, though this was resolved via stipulation on April 28, 2021, and the stipulation was approved by the Judge of Compensation Claims on May 3, 2021. On December 1, 2021, more than two years after the subject accident and more than one year after the last medical or indemnity payment, the claimant filed another petition followed by a third petition on June 6, 2022.[1] The E/C/SA asserted a statute of limitations defense, which was rejected by the JCC on the grounds that the payment of attorney’s fees is considered a monetary benefit to the claimant, which tolled the statute of limitations for one year.   

On appeal, the First DCA held that the JCC erred in holding that payment of attorney’s fees and costs is a “benefit” which has the effect of tolling the statute of limitations. The court applied the statutory interpretation principle of expression unius est exclusion alterius – the expression of one thing is the exclusion of another – in holding that the statute clearly sets forth the two events which serve to toll the statute of limitations: payment of indemnity benefits or furnishing authorized medical treatment. By expressly including these two events in the statute, the court reasoned that the Florida legislature necessarily excluded all others. Accordingly, as payment of an attorney’s fee is not payment of indemnity benefits or furnishing medical treatment, the statute of limitations had run, and the claimant’s petitions were untimely and barred.