Tower Chemical Co. v. Hubbard

527 So. 2d 886, 1988 WL 62170
CourtDistrict Court of Appeal of Florida
DecidedJune 22, 1988
Docket87-919
StatusPublished
Cited by6 cases

This text of 527 So. 2d 886 (Tower Chemical Co. v. Hubbard) 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
Tower Chemical Co. v. Hubbard, 527 So. 2d 886, 1988 WL 62170 (Fla. Ct. App. 1988).

Opinion

527 So.2d 886 (1988)

TOWER CHEMICAL COMPANY and Florida Farm Bureau, Appellants,
v.
Charles HUBBARD, Sr., Appellee.

No. 87-919.

District Court of Appeal of Florida, First District.

June 22, 1988.

Jeffry J. Branham of Dean, Ringers, Morgan & Lawton, Orlando, for appellants.

Howard G. Butler of Meyers and Mooney, Orlando, for appellee.

ZEHMER, Judge.

The employer, Tower Chemical Company, and its carrier, Florida Farm Bureau, appeal a workers' compensation order ruling that the statute of limitations does not bar Charles Hubbard's claim for continued remedial medical attention. We affirm.

The basic facts are not in dispute. On March 26, 1980, Hubbard sustained a permanent back injury in a work-related accident. The employer and the carrier subsequently agreed to a settlement of his claim *887 except for future medical, which was left open. Dr. Joseph Matthews, an orthopedic surgeon authorized by the employer and carrier, was treating claimant for his back injury. Upon examining claimant in November of 1984, Dr. Matthews found that claimant's back condition had stabilized at a level not requiring active treatment other than two medications he approved for claimant's use. He advised claimant to return on an "as needed" basis.

On July 10, 1986, claimant returned to Dr. Matthews, who remained the authorized physician, for evaluation of his condition. Dr. Matthews testified that the purpose of this visit was to discover whether claimant's condition had worsened or changed, whether a different type of treatment might be necessary to make his condition more comfortable, and whether he needed any active care. Dr. Matthews stated he was particularly concerned with determining whether claimant was suffering from any active nerve root pressure. The examination consisted of taking claimant's history and complaints since the last visit, checking his reflexes and straight-leg raising, discussing his medications with him, and giving him instructions and advice. Claimant advised Dr. Matthews that in early 1986 he had suffered a flare-up of his condition causing acute low back pain. This condition gradually improved, and by the time of the July 1986 examination claimant's condition had returned to its 1984 status. Dr. Matthews stated that he did not have any additional suggestions for changing claimant's treatment unless he suffered another flare-up.

Although the carrier paid Dr. Matthews's bills for both the 1984 and 1986 examinations, on February 7, 1987, it sent Dr. Matthews a letter advising him that it would not pay for any further medical treatment of claimant because the statute of limitations on the claim had expired. Consequently, claimant filed a claim requesting that the deputy commissioner order the employer and carrier to provide continued medical treatment. The employer's notice to controvert asserted the statute of limitations in defense.[1] In the appealed order, the deputy commissioner found "[t]hat the claimant's claim for continued remedial attention is not barred by the statute of limitations" and explained:

I base this finding on the fact that the claimant last received remedial attention by his authorized treating physician, Dr. Joseph Matthews, on July 10, 1986. I accept Dr. Matthews' testimony that the professional services that he rendered to the claimant on that date constituted part of his program of medical attention and treatment and is substantially the same as the treatment and attention that he has been providing the claimant for a number of years. Further, the carrier apparently felt that the professional services rendered to the claimant by Dr. Matthews on July 10, 1986 constituted treatment because they paid Dr. Matthews for those professional services in September of 1986. Florida Statute 440.19(2)(b), which is the statute applicable to this situation, clearly provides for remedial attention rather than specific remedial treatment. To give this statute a different construction would only promote a practice which would involve claimants requesting their physicians give them specific but probably unnecessary treatment to keep their entitlement for continued medical benefits open. This was never intended by the workers' compensation law and it was also never intended that an injured worker's benefits should be barred by the statute of limitations when he seeks out the services of his authorized treating physician for medical attention.

(R. 76-77).

Appellants contend on appeal that (1) the July 1986 visit to Dr. Matthews was merely an examination, not remedial attention contemplated by this statute, and thus was not sufficient to toll the running of the statute *888 of limitations; and (2) the payment for the July 10, 1986 visit does not estop the employer and carrier from asserting the statute of limitations defense. Because we find no error in the deputy commissioner's ruling on the first issue, we have no occasion to reach appellants' second issue.

We fully agree with the deputy commissioner that Dr. Matthews provided remedial attention to claimant on July 10, 1986. Section 440.19(2)(b), Florida Statutes, the statute of limitations applicable to this claim, states:

All rights for remedial attention under this section shall be barred unless a claim therefor which meets the requirements of paragraph (d) 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 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 within 2 years after the date of the last remedial attention 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 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 remedial attention or rehabiliative services furnished by the employer.

This section bars a claim for remedial medical attention unless filed within two years of the time of injury, with certain exceptions where specified benefits have been paid or furnished by the employer in the absence of an award or after an award has been made.[2] Under the exception allowing the claim to be filed within two years after the date of the last remedial attention furnished by the employer, the key considerations involve the meaning of "remedial attention" and "furnished by the employer."

In Barnett v. EMR Telemetry, 396 So.2d 791 (Fla. 1st DCA 1981), in determining whether a physician's examination of a claimant constituted remedial attention furnished by the employer within the contemplation of Sections 440.13(3)(b) and 440.19(1)(a), Florida Statutes (1971),[3] we held:

A distinction has been drawn between "examination" and "treatment"; however, such distinction should not be artificially and unrealistically made. [Citation omitted.] To distinguish a "mere" examination from treatment, it is essential to examine not only the actual functions performed by the physician, but also the purpose of the physician's examination. [Citations omitted.] Here, ... . the purpose of claimant's visit with Dr. Padar was not

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Cite This Page — Counsel Stack

Bluebook (online)
527 So. 2d 886, 1988 WL 62170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tower-chemical-co-v-hubbard-fladistctapp-1988.