Jeffrey P. Gale, P.A. // Florida Workers’ Compensation Statute of Limitations in Repetitive Trauma Cases

clockThe key component of every statute of limitations is the triggering event which starts the running of the SOL clock. In Florida workers’ compensation cases, the event is “the date on which the employee knew or should have known that the injury or death arose out of work performed in the course and scope of employment.” Section 440.19(1) Florida Statutes. The SOL is two years from this event. (Chapter 95 of the Florida’s statutes addresses the statute of limitations applicable in other types of cases.)

While most workplace injuries arise from acute traumatic events, like falling from a scaffold, some develop over a spread of time from the cumulative effects of repetitive physical labor. A representative example of this is demonstrated by one of our recent cases involving a UPS driver who developed a bad back from lifting and moving boxes for sixteen years.

Our client first developed and regularly experienced back pain well outside of the two year SOL period. However, it wasn’t until later that the pain became so debilitating as to prevent him from working. We filed a Petition for Benefits shortly thereafter, contending that the injury — an MRI performed six months before the claimant’s last day of work revealed three herniated intervertebral discs — was caused by the cumulative effects of repetitive trauma. We used the last day of work as the date of the “accident.” Nevertheless, the employer/carrier asserted the statute of limitations defense to the claim, proposing that the accident date should be when the pain first manifested or at other times outside of the SOL window. Importantly, the employer/carrier could not identify a single, acute incident to explain the medical condition.

Based on the law, we felt confident in prevailing.

In Troche v. Geico, 966 So.2d 460 (Fla. 1st DCA 2007), which involved a claim for bilateral carpal tunnel syndrome, the court noted that “[i]n a repetitive injury case, the date of injury is generally deemed to be the last date of exposure to the trauma.” Id. at 461. The court reversed the JCC‘s denial of the claim which was based on 440.19(1).

The principle was followed five years later in Rose v. Geico, 99 So.2d 886 (Fla. 1st DCA 2012). This case is especially instructive because the employee had unsuccessfully brought claims in the past for the same medical condition under  different accident dates. The JCC in the subject case denied the claim on the reasoning that the claimant had not established any worsening of her condition from the time of the last claim. The lower court’s ruling was reversed. Citing Troche, the appellate court stated:

  • “By requiring claimant to offer evidence of a change in condition, even though she was alleging repetitive trauma, the JCC utilized an incorrect legal standard.”
  • “No change in condition need be shown, given claimant’s allegation of subsequent repetitive trauma, because every new exposure to the trauma was a new ‘”accident”‘ for purposes of workers’ compensation. Section 440.09(1), Florida Statutes (2009), requires that causation be established by clear and convincing evidence in cases of repetitive exposure. Nothing in these requirements places a burden on a claimant to prove that the condition has changed or somehow worsened.”
  • “The proper legal standard is a showing, by clear and convincing evidence, that an ‘”accident”‘ occurred; that is, that ‘”[t]he injury, [and] its occupational cause … be established to a reasonable degree of medical certainty, based on objective relevant medical findings.”‘ § 440.09(1), Fla. Stat. (2009).”

The court noted that the claimant’s job duties remained unchanged after her prior petitions for benefits and found persuasive the uncontradicted medical opinion that claimant’s bilateral carpal tunnel syndrome was a recurrence of her condition ongoing since 1999 and that within a reasonable degree of medical probability the major contributing cause of her present recurrence of symptoms was her typing activity.

In summary, the First District Court of Appeal declared:

Under an application of the proper standard, claimant proved a new repetitive trauma injury. That the doctors may not be able to “say that Rose’s symptoms now are any different from the symptoms she was suffering in 2007” is not dispositive of a claim based on repetitive trauma. Repetitive trauma can be proven by “demonstrat[ing] a series of occurrences, the cumulative effect of which is injury.” Festa v. Teleflex, Inc., 382 So.2d 122, 124 (Fla. 1st DCA 1980). Here, claimant’s undisputed testimony was that she engaged in extensive typing on a daily basis for thirteen years. Dr. Fiore opined that the described typing was the major contributing cause of the condition he diagnosed — bilateral carpal tunnel syndrome. The JCC did not reject this evidence.

We have used the repetitive trauma theory successfully many times. It can be a great benefit to long time employees who are beginning to break down from the cumulative effects of performing rigorous manual labor over many years.

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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.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.