Crutcher v. School Bd. of Broward County

834 So. 2d 228, 2002 WL 31373480
CourtDistrict Court of Appeal of Florida
DecidedOctober 23, 2002
Docket1D01-3871
StatusPublished
Cited by8 cases

This text of 834 So. 2d 228 (Crutcher v. School Bd. of Broward County) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Crutcher v. School Bd. of Broward County, 834 So. 2d 228, 2002 WL 31373480 (Fla. Ct. App. 2002).

Opinion

834 So.2d 228 (2002)

Miriam CRUTCHER, Appellant,
v.
SCHOOL BOARD OF BROWARD COUNTY and Gallagher Bassett Services, Inc., Appellee.

No. 1D01-3871.

District Court of Appeal of Florida, First District.

October 23, 2002.
Rehearing Denied January 16, 2003.

Diane H. Tutt, of Diane H. Tutt, P.A., Plantation, for Appellant.

Edward D. Schuster, of Massey, Coican & Schuster, LLC, Ft. Lauderdale, for Appellee.

PER CURIAM.

Appellant, Miriam Crutcher, appeals an order finding that her petition for workers' compensation benefits was barred by the statute of limitations. For the reasons expressed below, we remand for further proceedings.

Section 440.19(4), Florida Statutes (Supp.1994), states:

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. (Emphasis added).

Appellant argues that the emphasized language must be read to say that the E/C's failure to comply with either section 440.185 or section 440.055 estops the E/C from raising a statute of limitations defense. Under that view, no matter what the claimant may have known about her rights, the E/C can never raise a statute of limitations defense if it has failed to comply strictly with the provisions of either section 440.185 or 440.055. We disagree.

*229 There is no dispute in this case that the E/C failed to comply with section 440.185(4).[1] The E/C only sent a letter to Appellant in which she was advised that she was entitled to benefits, which included "paying all medical bills related to your injury, prescription at 100% and reimbursing you for travel expense to and from any medical facility at 29 cents per mile." She was informed that treatment must come from an authorized physician and that she could request additional care or a second opinion by contacting the carrier. Appellant did receive medical benefits and was able to get the carrier to authorize three different physicians. She also briefly retained the services of an attorney. Her treatment ended in early 1997 when she declined to continue with the recommended course of treatment, which included injections. Appellant's last indemnity benefit was furnished on March 10, 1997, and she did not file a petition for benefits until February 7, 2000. The E/C denied the claim on the grounds that it was barred by the statute of limitations.

A hearing was held solely on the issue of the statute of limitations. The Judge of Compensation Claims (JCC), relying on this court's opinion in Solar Pane Insulating Glass, Inc. v. Hanssen, 727 So.2d 961 (Fla. 1st DCA 1998), found that Appellant "was fully aware of her entitlement to medical benefits and chose not to request medical benefits after the last visit with Dr. Weiss on January 14, 1997. Hence, her present claims are time barred." Additionally, the JCC found that Appellant's "actual knowledge of entitlement to medical benefits is unmistakable from the record."

While the JCC's factual findings are supported by competent and substantial evidence, sole reliance on Hanssen was incorrect because that case dealt with a prior version of section 440.19. In Tallahassee Memorial Healthcare, Inc. v. Coleman, 743 So.2d 1200 (Fla. 1st DCA 1999), this court addressed the post-1994 version of section 440.19. In Coleman, as in this case, the E/C had not apprised the claimant of all her rights, as required by section 440.185. This court, quoting Hanssen, repeated that the "two-year statutory limitations period is not tolled by failure to advise an injured worker that a statute of limitations exists." Coleman, 743 So.2d at 1201. In both Coleman and Hanssen, as well as in this case, it was clear "that the claimant knew of her entitlement to medical benefits." Id. However, because of the 1994 amendment to section 440.19, this court remanded in Coleman for the JCC "to determine whether she lacked actual knowledge of any other pertinent right under the workers' compensation law and, if so, whether such ignorance accounted for her failure to obtain care during the two years following her last visit to Dr. Loeb." Coleman, 743 So.2d at 1201.

Implicit in this court's decision in Coleman was a rejection of Appellant's claim that a claimant need only show that the E/C failed to comply strictly with either section 440.185 or section 440.055 in order to estop the E/C's statute of limitations defense. See also Health Central v. Cesar, 752 So.2d 97 (Fla. 1st DCA 2000). We read the statute to say that after the E/C *230 raises a statute of limitations defense, the claimant must prove that the E/C should be estopped from raising the defense. The burden of proof on the claimant is a preponderance of the evidence, unless the E/C has complied with both sections 440.185 and 440.055, in which case the claimant has a higher burden of proof— clear and convincing evidence. Any other reading of the statute could lead to absurd results, such as forever barring a statute of limitations defense when the carrier sends the claimant an approved, informational brochure that contains all of the required information four days after learning of the injury, instead of within the required three days.

Because it is not clear from the order on review whether the JCC applied the correct law in determining that Appellant's claim was barred in its entirety by the statute of limitations, we REVERSE and REMAND for the JCC to determine whether Appellant lacked actual knowledge of any pertinent right under workers' compensation law, substantive or procedural, and, if so, whether such ignorance accounted for her failure to obtain care for more than two years after her last visit to an authorized physician. See Coleman.

MINER and BENTON, JJ., CONCUR; LEWIS, J., CONCURS IN PART AND DISSENTS IN PART WITH OPINION.

LEWIS, J., concurring in part and dissenting in part.

As the majority explains, the Judge of Compensation Claims ("JCC") erred in relying on Solar Pane Insulating Glass, Inc. v. Hanssen, 727 So.2d 961 (Fla. 1st DCA 1998), as that case addressed a previous version of section 440.19, Florida Statutes. I, therefore, join the majority in reversing the JCC's order. However, I do not agree that section 440.19(4), Florida Statutes (1995), requires that the claimant must prove estoppel by a preponderance of the evidence unless the E/C complies with sections 440.185 and 440.055, Florida Statutes (1995).

This case revolves around the statutory construction of section 440.19, Florida Statutes (1995). The claimant contends that because she never received the notice mandated by section 440.185, the JCC erred in determining that her claim for benefits was barred by the statute of limitations. As she raised estoppel in response to the E/C's statute of limitations defense, she claims that she was not required to prove estoppel unless the carrier demonstrated that it provided the notice required in section 440.185.

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834 So. 2d 228, 2002 WL 31373480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crutcher-v-school-bd-of-broward-county-fladistctapp-2002.