Universal Rivet, Inc. v. Cash

598 So. 2d 154, 1992 WL 76742
CourtDistrict Court of Appeal of Florida
DecidedApril 20, 1992
Docket91-1927
StatusPublished
Cited by3 cases

This text of 598 So. 2d 154 (Universal Rivet, Inc. v. Cash) 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
Universal Rivet, Inc. v. Cash, 598 So. 2d 154, 1992 WL 76742 (Fla. Ct. App. 1992).

Opinion

598 So.2d 154 (1992)

UNIVERSAL RIVET, INC. and Nationwide Mutual Insurance Company, Appellants,
v.
Andrew CASH, Appellee.

No. 91-1927.

District Court of Appeal of Florida, First District.

April 20, 1992.

Kimberly A. Hill of Conroy, Simberg & Lewis, P.A., Hollywood, for appellants.

James T. Armstrong of Underwood, Gillis & Karcher, P.A., Miami, for appellee.

WEBSTER, Judge.

In this workers' compensation appeal, the employer and carrier challenge decisions of the judge of compensation claims holding that "remedial attention ... for replacement or removal of [a] surgical staple in [claimant's] right shoulder" is not barred by the statute of limitations; and ordering the employer and carrier to pay for an examination of claimant by a physician. We reverse.

On February 24, 1986, claimant sustained a compensable job-related injury to his right shoulder. In March 1986, the employer and carrier authorized Dr. Robert S. *155 Ennis, a board-certified orthopedic surgeon, to perform an arthroscopic evaluation of claimant's shoulder and, if necessary, a procedure called a staple capsulorrhaphy. Dr. Ennis' arthroscopic examination revealed that claimant had a torn glenoid ligament. Therefore, Dr. Ennis performed a staple capsulorrhaphy.

According to Dr. Ennis, the procedure involved placing the torn ligament in its proper position and then inserting what he referred to as an "internal fixation device," known as a "long fixation staple," through the ligament and into the bone of the anterior portion of the shoulder joint. The purpose of the staple was to hold the ligament in its proper position until the normal healing process had occurred. Dr. Ennis said that one could think of the staple as "[e]ssentially ... a metal stitch." He described the staple as "a very small metal device" "about the size of an eraser on a pencil." Normally, the staple remains permanently in place after the ligament has healed. At that point, however, it serves no further purpose.

Claimant's recovery was essentially uneventful. On May 8, 1986, claimant was permitted to return to light-duty work. (The employer and carrier paid claimant disability benefits from February 24 to May 19, 1986.) Dr. Ennis last saw claimant on July 15, 1986.

On August 3, 1988, claimant returned to Dr. Ennis' office, "complaining of ache and discomfort about his right shoulder." Claimant was seen by one of Dr. Ennis' associates, Dr. Dennis. According to Dr. Dennis, claimant reported that he had had some "mild difficulty" since Dr. Ennis had performed the staple capsulorrhaphy, but that the pain had recently become significantly more severe. Dr. Dennis had x-rays taken, from which he concluded that the shoulder appeared normal and that the staple was in its proper place. Medication and physical therapy were recommended.

Claimant was seen by Dr. Ennis or an associate on three additional occasions subsequent to the August 3 visit. On August 16, 1988, Dr. Ennis noted:

[Claimant] relates his shoulder pain back approximately 18 months ago when he apparently had an injury with his motorcycle and states up until that time his shoulder was fine and pain free. Subsequently he began experiencing severe pain in the shoulder which gradually improved but over the last 8 months his shoulder has become increasingly painful until the point where he is unable to move it without considerable discomfort... . I have reviewed the x-rays taken by Dr. Dennis which show that the anterior glenoid staple remains in good position and does not appear to be impinging on the shoulder in any movement. However, because of the local discomfort in the shoulder, it is difficult to tell whether subluxation is present and whether the capsule may have been ripped from the staple capsulorrhaphy at the time of his injury 1 1/2 years ago... . I think that he has rotator cuff tendinitis at this point and an early capsulitis as well. I am not sure that an arthroscopic evaluation of the shoulder would be of benefit at this time....

On September 27, 1988, claimant reported that he "ha[d] returned to his regular activities which he is able to do." Finding that claimant "ha[d] regained the full range of motion in his right arm," Dr. Ennis released claimant, telling claimant to return should any new problem arise.

The employer and carrier refused to pay for claimant's visits to Dr. Ennis and his associates, or to authorize any further treatment, on the ground that the statute of limitations had run. Therefore, on August 24, 1988, claimant filed a claim, seeking temporary total disability benefits from February 24, 1986, to the date of filing, and until the date of maximum medical improvement; wage loss benefits from the date of maximum medical improvement and continuing or, in the alternative, permanent total disability benefits from the date of maximum medical improvement and continuing; payment of outstanding medical bills; authorization of future medical care; and attorney fees, costs, penalties and interest. The employer and carrier responded that claimant was not entitled to any *156 benefits because the 2-year statute of limitations had run; or, "[i]n the alternative, if the shoulder pin is a prosthesis, then the [s]tatute of [l]imitations bars all claims except for medical associated with the pin."

To the extent relevant to this appeal, Section 440.19(1)(a), Florida Statutes (1985), provides that "[t]he right to compensation for disability, rehabilitation, impairment, or wage loss ... shall be barred unless a claim therefor ... is 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." Section 440.19(1)(b) provides, in relevant part, that "[a]ll rights for remedial attention ... shall be barred unless a claim therefor ... is filed ... within 2 years after the date of the last payment of compensation or ... after the date of the last remedial attention ... furnished by the employer." However, subsection (1)(b) also contains the following exception: "no statute of limitations shall apply to the right for remedial attention relating to the insertion or attachment of a prosthetic device to any part of the body."

On May 31, 1989, the judge of compensation claims entered an order in which she concluded that the staple inserted by Dr. Ennis into claimant's right shoulder in 1986 was a "prosthetic device," within the meaning of that term as used in Section 440.19(1)(b). Therefore, the judge of compensation claims held that "the 2-year [s]tatute of [l]imitations [found in Section 440.19(1)(b)] does not apply to the right for remedial attention relating to the metallic staple inserted in [c]laimant's right shoulder." Jurisdiction was reserved to address all of the remaining issues at a later date. The employer and carrier sought review in this court of the order of the judge of compensation claims. In an unpublished order, this court dismissed the appeal for lack of jurisdiction, "without prejudice to [the employer's and carrier's] right to raise the statute of limitations issue on final appeal."

A further hearing was held before the judge of compensation claims, to address all pending matters, on December 3, 1990. Because claimant's attorney represented that Dr. Ennis had suggested that "additional procedures or examinations might be in order" to determine whether the staple was causing claimant's complaints, the judge of compensation claims orally ordered the employer and carrier to pay the cost of "a one-time exam" by Dr. Ennis.

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Related

Colonial Oaks Apartment v. Hood
680 So. 2d 446 (District Court of Appeal of Florida, 1996)
Peo v. Maas Bros.
634 So. 2d 1130 (District Court of Appeal of Florida, 1994)
Cash v. Universal Rivet, Inc.
616 So. 2d 446 (Supreme Court of Florida, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
598 So. 2d 154, 1992 WL 76742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/universal-rivet-inc-v-cash-fladistctapp-1992.