Gore v. Lee County School Board and Johns Eastern Company - Statute of Limitations Defense

This article is intended to update you on a recent decision published by the First District Court of Appeal (First DCA) in Gore v. Lee County School Board and Johns Eastern Company addressing the statute of limitations defense.

In this case, the Claimant appealed the Judge of Compensation Claim's Order denying her claim for benefits on the ground that same was barred by the statute of limitations.The Judge's decision was based on his rejection of Claimant's argument that her prosthesis, inserted into the Claimant's leg in her 2002 surgery, represented a continuous provision of remedial care that tolled the statute of limitations (pursuant to section 440.19(2), Florida Statutes (2001)). He noted that, in 1993, the Legislature removed the statutory provision found in section 440.19(1)(b) excepting prosthesis from the statute, which he interpreted as being an intentional, specific alteration of the law. And, as this was the only alleged "treatment" that transpired between the surgery and Claimant's 2009 Petition for Benefits, the JCC found that the claim was barred by the statute, and denied the claim.

On appeal, Claimant argued that her prosthetic devise qualifies as a "medical device," the use of which tolls the statute of limitations pursuant to section 440.19(2). The First DCA first pointed to the established doctrine that a claimant's use of a prescribed medical device or apparatus, with the E/C's knowledge, constitutes remedial treatment furnished by an E/C that tolls the statute of limitations. Relying on two cases, Fuster v. Eastern Airlines and Lee v. City of Jacksonville, the Court concluded that, "so long as a claimant can establish that an employer or carrier has actual knowledge of his or her continued use of a medical apparatus prescribed by an authorized doctor, the statute of limitations is tolled during such use."

The Court also found that the Claimant's prosthesis qualified as a medical apparatus under the statute, pointing to section 440.13(2)(a) (2001) which includes "prosthesis" in treatment that must be provided by employers. It noted that said prosthesis, similar to the back brace and TENS unit in Fuster and Lee, respectively, also "mitigates the effects of an injury." The Court rejected the E/C's argument that Claimant was not "using" her prosthesis, as "functioning with the assistance of a prosthetic device is tantamount to ongoing use of a medical apparatus sufficient to toll the statute of limitations. Thus, the Court determined that the JCC erred in interpreting the 1993 statutory amendment as precluding the Claimant from establishing that her continued use of the prosthesis tolls the statute of limitations. This, as again, the aforementioned case law stands for the proposition that medical apparati constitute remedial treatment which tolls the statute of limitations.

In making its decision, the Court also pointed to the long-standing policy that the workers' compensation system is designed to relieve society and injured employees of the economic burden resulting from work-related injuries, in favor of placing such burden on the industry. Thus, the Court reasoned, the industry should certainly bear the burden of maintaining an apparatus known to deteriorate or wear out. Finally, the Court noted that its finding would not militate against the "unfair surprise and stale claim" purpose of statute of limitations, as "it should come as no surprise to an E/C that a claimant may seek follow-up treatment to repair or replace a no longer functioning apparatus that was prescribed by an authorized physician and used on a continuous basis."

After concluding that the JCC erred in finding Claimant's prosthetic device did not toll the statute as a matter of law, it reversed and remanded the issue of whether the E/C had actual knowledge of Claimant's continued use of the prosthesis to the JCC.

This case serves as yet another example of the First DCA construing the legislation surrounding the statute of limitations in favor of the claimant. Of course, this decision is not yet final, as (1) there is still time for the E/C to move for rehearing, and (2) the JCC must make a determination as to whether the E/C had "actual knowledge" of the Claimant's prosthetic device, seven (7) years after its insertion. I think the JCC's determination (and any future discussion by the First DCA) in that regard will be quite significant.

Please contact me with any questions or concerns regarding this opinion.

Kristen L. Magana
Broussard & Cullen, P.A.