Gulfstream Press, Inc. v. Acle

697 So. 2d 213, 1997 Fla. App. LEXIS 8240, 1997 WL 404971
CourtDistrict Court of Appeal of Florida
DecidedJuly 22, 1997
DocketNo. 96-4958
StatusPublished
Cited by2 cases

This text of 697 So. 2d 213 (Gulfstream Press, Inc. v. Acle) 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
Gulfstream Press, Inc. v. Acle, 697 So. 2d 213, 1997 Fla. App. LEXIS 8240, 1997 WL 404971 (Fla. Ct. App. 1997).

Opinion

PER CURIAM.

Gulfstream Press, Inc., and The Chubb Group of Insurance Companies, employer and carrier respectively, appeal an order denying their statute of limitations defense to Jorge Acle’s claim for treatment from Dr. Richard Levitt. The petition for benefits was filed more than four years after claimant last received treatment from Dr. Levitt. We find the claim barred by section 440.19, Florida Statutes (1987), and reverse.

After his industrial accident on June 23, 1988, Mr. Acle saw Jack Cooper, M.D., an authorized orthopedic surgeon. On August 23,1988, Dr. Cooper performed an arthrosco-py of the right knee to repair a large tear on the posterior of the medial meniscus. Following surgery, Mr. Acle continued to have pain and swelling in his right knee; and Dr. Cooper referred him to John Uribe, M.D., another orthopedic surgeon, who was also authorized. An MRI at the time showed changes in the medial meniscus, which could have been either normal post-surgical changes or another meniscal tear. On February 24, 1989, Dr. Uribe performed a right knee arthroscopy with partial medial menis-cectomy.

Mr. Acle received temporary total disability benefits from August 23, 1988 to October 2, 1988 and from October 10, 1988 to May 1, 1989 and temporary partial disability benefits from October 5, 1988 to October 10, 1988. Dr. Nadler returned him to work on May 16, 1989, without restrictions; and Dr. Uribe said Mr. Acle had reached maximum medical improvement by January 12, 1990 with a 2% permanent partial impairment, to the body as a whole. The employer/carrier controverted all wage loss claims from May 1,1989.

The employer/carrier and Mr. Acle settled all claims for disability, compensation benefits, and rehabilitative expenses (but not future medical care), when, on May 16, 1990 the parties’ attorneys and Mr. Acle signed Joint Petition And Stipulation For Lump Sum Settlement Under Chapter 440.20(12). The stipulation stated:

This is a Stipulation and Joint Petition for settlement of all claims of the employee for compensation, past and future, by reason of the captioned accident, but one which reserves to the employee the right to additional medical care, pursuant to the provisions and limitations of the Florida Workers’ Compensation Act.

Specifically, paragraph nine of the stipulation stated:

That the employer, Gulfstream Press, and its workers’ compensation carrier, the Chubb Group of Insurance Companies, will continue to provide the employee with such future medical care, treatment and attention as is appropriate.... [C]arrier will authorize Dr. Levitt’s services for continuing and future care.

In the Stipulation, Mr. Aele’s attorney certified that he “ha[d] read and explained the contents of this agreement to the employee and the employee ha[d] signified his full understanding of its meaning and intent.”

On the same day that he signed the stipulation, Mr. Acle also signed an affidavit, in which he stated:

That he has read and fully understands the contents of the foregoing Stipulation for Lump Sum Settlement....

The next day, May 17, 1990, an ORDER FOR RELEASE FROM LIABILITY FOR FUTURE PAYMENTS OF COMPENSATION, REHABILITATION EXPENSES, OR DEATH BENEFITS BUT EXCLUDING MEDICAL EXPENSES was entered. The last sentence of this order stated: “The responsibility of the Employer/Carrier for future medical benefits remains as it now is for the time and in the manner provided by law.”

Subsequent to the entry of this order, Mr. Acle saw Dr. Levitt twice: on August 1, and on August 15, 1990. At the August 15, 1990 visit, Dr. Levitt noted that Mr. Acle continued to have mild discomfort; he documented the results of an August 9, 1990 MRI (which revealed a possible tear of the posterior horn of the lateral meniscus) and then wrote: “He [215]*215does not desire any further treatment at this time, and is being discharged from any followup care.”

Mr. Acle subsequently testified that he did not have further treatment with Dr. Levitt after the August 15 visit, because he left for Spain on November 11, 1990 and Dr. Levitt had indicated that he would need four to six months of physical therapy following any new surgery.1 He also testified that he did not have any remedial treatment while he was out of the United States, just palliative care for pain and inflammation, because he did not trust surgery in Spain.2

Mr. Acle made four round trips between Spain and the United States in the next four years; and on one occasion, in 1991, he tried to make an appointment with Dr. Levitt, but the waiting period was three to four weeks and he was only going to be in the country for a week and a half. When he returned to Dade County permanently in 1994, he did not attempt to make an appointment with Dr. Levitt “[bjecause I don’t know if I change — if the insurance change the doctor or — .” He said that he did not try to call Chubb because he did not have the telephone number, and that he preferred to contact his prior attorney, who referred him to a new attorney, Joseph Hackney.

In January 1995, Mr. Hackney filed a Request for Assistance; and on February 16, 1996 he completed a Petition for Benefits, seeking “[tjreatment of claimants (sic) left knee refused by carrier by Dr. Levitt as per settlement agreement.” 3 The employer/ear-rier filed a Notice of Denial on February 22, 1996, citing the statute of limitations, because Mr. Acle had last seen Dr. Levitt on August 15,1990.

The Judge of Compensation Claims found that the employer/ carrier were estopped from relying on the statute of limitations defense, because Mr. Acle, whom the Judge of Compensation Claims found “fully credible,” testified that he was never informed of section 440.19(l)(b), Florida Statutes (1987), which provides:

All rights for remedial attention under this section shall be barred unless a claim therefor ... is filed with the division within 2 years after the time of injury, except that, if payment of compensation has been made or remedial attention or rehabilitative services have 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 within 2 years after the date of the last remedial attention or rehabilitative services furnished by the employer; and all rights for remedial attention or rehabilitative services under this section pursuant to the terms of an award shall be barred unless a further claim therefor is filed with the division within 2 years after the entry of such award, except that, if payment of compensation has been made or remedial attention or rehabilitative services have been furnished by the employer under the terms of the award, a further claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last [216]*216remedial attention or rehabilitative services furnished by the employer....

We do not disturb that finding of fact, but we do not agree that the statute of limitations was tolled here.

In Brunswick Corp. v. Cummings, 648 So.2d 787 (Fla. 1st DCA 1994), the judge of compensation claims concluded that the statute of limitations had been tolled because he found the language in the settlement agreement was ambiguous. In reversing, this court held that the determination that Mr.

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Bluebook (online)
697 So. 2d 213, 1997 Fla. App. LEXIS 8240, 1997 WL 404971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulfstream-press-inc-v-acle-fladistctapp-1997.