Claims Regarding 40-Year-Old Injury Not Barred by Florida Statute of Limitations

Where a Florida employer, for unknown reasons, stopped paying an injured worker PTD benefits in 1987 regarding the claimant’s accepted claim, but the Division of Workers’ Compensation (“the Division”) continued to pay him cost of living adjustments authorized under § 440.15(1)(f), Fla. Stat., the payment of such COLA adjustments amounted to the sort of “compensation” that tolled the statute of limitations set forth in § 440.19(1)(a), Fla. Stat. (1975), in spite of the fact that such “compensation” was not paid by the employer, held a Florida appellate court yesterday [Phillips v. Tyson Foods, 2019 Fla. App. LEXIS 17494 (1st DCA, Nov. 20, 2019)]. Accordingly, the court held it was error for the Judge of Compensation Claims to find the claimant’s petitions for further benefits untimely.

Background

Claimant’s compensable injury occurred more than 40 years ago. His employer administratively accepted claimant as permanently and totally disabled (PTD) in 1986, and paid PTD benefits. In 1987, the Division began paying the claimant PTD supplemental benefits. Under the statute, the purpose of supplemental benefits is to allow for increases in the cost of living. For unknown reasons, when claimant started receiving supplemental benefit payments from the Division, he stopped receiving PTD benefit payments from his employer.

JCC’s Decision

In 2018, the claimant filed the first of several petitions for benefits seeking medical and disability benefits from 1986 “to the present and continuing.” The JCC denied the petition, ruling the statute of limitations had run before the claims were filed. The JCC found that although the supplemental benefits are compensation, the statutory obligation to pay them rested with the Division, not the employer; therefore, the JCC concluded, those payments did not toll the statute of limitations.

Appellate Court Disagrees

The appellate court disagreed. Noting initially that the statute of limitations applicable to the claimant was the version in effect on the claimant’s date of accident, the court observed that the statute provided as follows:

The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within 2 years after the time of injury, except that if payment of compensation has been made or remedial treatment has been furnished by the employer without an award on account of such injury a claim may be filed within 2 years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer [§ 440.19(1)(a), Fla. Stat. (1975) (emphasis added by the Court)].

Observing that the statute of limitations [see § 440.19(1)(a), Fla. Stat. (1975)] is tolled by either (1) the payment of “compensation” or (2) the furnishing of remedial treatment by the employer, the appellate court held the payment of cost of living adjustments by the Division of Workers’ Compensation (“the Division:) constituted “compensation,” in spite of the fact that the employer had not made PTD benefit payments to the claimant since 1987.

The court continued that by its plain language, the statute was tolled by either (1) the payment of “compensation” or (2) the furnishing of remedial treatment by the employer. Supplemental benefits, said the court, constituted compensation.

Payment by the Division Did Not Matter

The court stressed that the fact that the last payment of compensation was provided by the Division, and not the employer, did not matter under the statute. The first of the two contingencies—payment of compensation—was not modified by “the employer” like the second contingency—the furnishing of remedial treatment. Thus, indicated the court, the payment of compensation need not come from the employer in order to toll the statute. The court added that indeed, the final phrase of the statute, “after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer,” required only that treatment, but not the compensation, be provided “by the employer.”

Because the supplemental benefit payments here served to toll the statute of limitations, the court reversed and remanded the cause for further proceedings consistent with the opinion.