Florida Injury Attorney Blawg
A statute of limitation is a provision that ends a person’s or company’s right to sue with regard to a legal dispute. Every legal dispute in Florida is subject to a statute of limitation, with the time period in any particular matter depending on the nature of the dispute. Florida Statute 95.11 sets forth the statute of limitation periods for most legal disputes. The statute of limitation for workers’ compensation cases is set forth in Florida Statute 440.19.
The workers’ compensation statute of limitation is a provision that ends a person’s right to claim benefits or sue for compensation and damages unless the person meets certain conditions. For accident dates after January 1, 1994, a claim or petition for benefits is forever barred unless it is filed within (1) two years of the date of the injury; or (2) after the initial two years, within one year of the last payment of compensation or provision of remedial treatment, care or attendance.
The start of every statue of limitation period is triggered by an occurence or event. For example, in a breach of contract matter, the triggering event is the breach of the contract. For wrongful death, it is the date the cause of the wrongful death was confirmed or suspected, typically the date of the accident. In workers’ compensation cases, the work-related accident starts the limitation period running.
In cases involving clearly identifiable accidents and injuries, such as breaking an ankle after falling from a ladder, the date of accident as the triggering event is obvious. However, not all triggering events are so obvious. For example, a worker may feel a twinge in his back from lifting a heavy box, and for a time feel only minor discomfort, then one day, even a week or two later, experience full-blown symptoms indicative of a bad herniated disc injury. Under this scenario, the statute of limitation period may not begin to run until the full-blown symptoms manifested, which is when the injured worker, as a reasonable person, should recognize the “nature, seriousness, and probable compensable character of his injury or disease.” [see Herb’s Exxon v. Whatmough, 487 So. 2d 1169, 1172 (Fla. 1st DCA 1986)]. In other words, the triggering event may come after the actual date of accident.
Other examples of how the workers’ compensation statute of limitation is applied:
- Occupational Disease: An occupational disease is one that arises from the hazard of a disease particular to a job that distinguishes it from the usual run of occupations, or the incidence of the disease is substantially higher in that occupation [see Florida Statute 440.151]. In cases involving occupational disease, the statute of limitation clock begins to run from the date of disability. Disability is defined in Section 440.02(13) as “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” This means that the date when the SOL clock begins to run may be different from the date the injured worker was first exposed or when he or she detected the disease, or even when symptoms first appeared.
- Injuries from Repetitive Trauma: A repetitive trauma injury is one in which disability results from months or even years of minor, but repetitive trauma. (My first workers’ compensation trial involved a repetitive trauma injury. We alleged and, fortunately, were able to prove, that our client’s serious back condition developed from years of lifting heavy bed box mattress frames from ground level to overhead shelves.) In these cases, the SOL begins to run from the date of the disability or the date of last injurious exposure, whichever is later.
Other considerations:
- Estoppel: The employer/carrier, through its own missteps, can be defeated on the statute of limitation defense. The two most common situations are: (1) the e/c has misled or lied to the injured worker about entitlement to benefits or need to take action; and (2) the e/c has failed to inform injured workers about their rights.
- Furnishing Remedial Care: The furnishing of remedial care can extend the SOL. However, the issue of what is remedial care has long been a problem.
Many a workers’ compensation case has been decided on the statute of limitation defense. Altough it may appear to be a straightforward issue, in practice, it is anything but straightforward. In fact, it is often one of the most contentious issues in workers’ compensation cases. A countless number of factors can come into play tipping the scale of justice one way or the other.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
Contact us today for a free, confidential consultation to discuss your important case.