Florida’s workers’ compensation system has two distinct time bars for filing petitions to seek benefits. Most people are at least vaguely aware of one of the concepts, known as the statute of limitations (SOL). Florida’s workers’ compensation SOL is enunciated in section 440.19, Florida Statutes.
The other time bar is laid out in Florida Statute 440.185(1), reproduced below:
(1) An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury. Failure to so advise the employer shall bar a petition under this chapter unless:
(a) The employer or the employer’s agent had actual knowledge of the injury;
(b) The cause of the injury could not be identified without a medical opinion and the employee advised the employer within 30 days after obtaining a medical opinion indicating that the injury arose out of and in the course of employment;
(c) The employer did not put its employees on notice of the requirements of this section by posting notice pursuant to s. 440.055; or
(d) Exceptional circumstances, outside the scope of paragraph (a) or paragraph (b) justify such failure.
This blog addresses subsection (d).
The statute is often interpreted strictly to the detriment of the injured worker. Accordingly, while there is some room for challenge built into every subsection of the statute, it is nevertheless advisable to err on the side of caution by giving notice [to the employer] whenever practicable within 30 days of having even the slightest indication a work-related injury may have been sustained.
Subsection (d) may be the most nebulous of the excuses allowed under the statute. In essence, (d) injects the “reasonable person” standard into the equation.
The “reasonable person” standard figures prominently in American jurisprudence. Its application in 440.185(1)(d) cases was described in Tomberlin v. City of Miami, 117 So.2d 735 (Fla. 1960) as “whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances….” at 736. In Escarra v. Winn Dixie Stores, Inc., 131 So. 2d 483 (Fla, 1961), the Florida Supreme Court relied on the standard to hold in favor of a 17 year old Cuban boy who waited several months to report an incident at worked that caused a deviated septum. The Escarra court explained that its “holding is in harmony with the general rule and with our ‘”reasonable man”‘ test regarding the giving of notice. In 2 Larson’s Workmen’s Compensation Law, § 78.41, it is stated that ‘”* * * the time for notice or claim does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury or disease.”‘ See, also, Orange County Public Services v. Ottley, 9 So.3d 638 (Fla. 1st DCA 2009)(The Escara test “provides that the time for notice does not begin to run until the claimant, as a reasonable person, should recognize ‘”the nature, seriousness and probable compensable character of his injury or disease.”‘ Id. at 485.”)
Our firm is handling a case in which the medical condition was not reported to the employer until nearly four months after our client’s employment ended. We are relying on the “reasonable person” standard to overcome the 30 day notice requirement of 440.185(1). From repetitive use of a pizza cutting wheel, our client developed callouses on some of his fingers. The callouses were a minor annoyance and our client figured they would go away once his employment ended. However, instead of fading away, the symptoms intensified and, after three months, developed to include stiffness, numbness, tingling, and sharp pain. It was then that the problems were brought to the former employer’s attention. In other words, the matter was reported once our client recognized the nature and seriousness of his injuries.
CAVEAT: Per 440.185(1), the notice must come from the employee rather than his attorney. We reach this conclusion based on the following statutory language, which appears underneath subsection (d): “Documents prepared by counsel in connection with litigation, including but not limited to notices of appearance, petitions, motions, or complaints, shall not constitute notice for purposes of this section.”
Contact us toll free at 866-785-GALE or by email to learn your legal rights.
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.
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