What happens when an injured worker comes back more than two years after
a compensable worker’s compensation accident and requests medical
care or other worker’s compensation benefit? Should you authorize
or deny the request or claim? More importantly, what factors should you
consider when making that determination?
Pursuant to Florida Statute Section 440.19(1), and except as provided elsewhere
in this section, “all employee petitions for benefits under this
chapter shall be barred unless the employee, or the employee’s estate
if the employee is deceased, has advised the employer of the injury or
death, pursuant to s. 440.185(1) and the petition is filed within two
years after the date on which the employee knew or should have known arose
out of work performed in the course and scope of employment.” Furthermore,
pursuant to F.S. 440.19(2), “payment of any indemnity benefit or
the furnishing of any remedial treatment care of attendance pursuant to
either a notice of injury or a petition for benefits shall toll the limitations
period set forth above for 1 year from the date of such payment. This
tolling period does not apply to the issues of compensability, date of
maximum medical improvement or permanent impairment. “
So, what does this section of Chapter 440 and corresponding case law mean
for adjusters from a practical and claims handling perspective as to whether
you have a viable statute of limitations defense? First, you should look
at whether a petition for benefits was filed within 2 years of the date
of accident. Next, you should look at whether the accident was timely
reported to the employer within 30 days of the date of accident pursuant
to the notice requirements outlines in F.S. Section 440.185(1). If no
notice, either actual or implied, was given to the employer by the employee
of the occurrence of a work accident, and two years have passed with no
Petition for Benefits being filed, you would have a statute of limitations
defense to any further claims. What if the employer knew of a work related
injury within 30 days but never reported it to the carrier and now more
than two years have expired since the date of accident, has the statute
of limitations run? The answer is probably no. The reason is that a Judge
of Compensation Claims will likely not allow a denial of benefits to a
claimant based on a statute of limitations defense if the claimant was
never advised of his/her rights under the worker’s compensation law.
Notwithstanding the above scenarios, the circumstances that most claims
adjuster face involve a timely reported and compensable worker’s
compensation claim where a claimant has previously received medical and/or
indemnity benefits and then, after an extended period of time, is now
requesting future medical care or some other benefit under the worker’s
compensation law. So, what do factors do you look at in determining whether
you have a viable statute of limitations defense to providing any further
benefits to a claimant? This is what should consider:
1. When was the last medical or indemnity benefit paid? Once you determine
that date, has the current request for medical or indemnity benefits been
more than 1 year since that date as per F.S. 440.19(2) and more than two
years since the date of accident? For example, claimant has an industrial
accident on January 1, 2015, last medical or indemnity benefit is paid
on June 1, 2015, and claimant requests medical care or some other benefit
on July 1, 2016, via a Petition for Benefits or other means. Can you deny
the claim based on a statute of limitations (SOL) defense? The answer
is no because two years have not run since the date of accident, even
though 1 year has passed since the last medical or other benefit was provided.
Now, if you switch it up, and the request for medical care or some other
benefit is made on July 1, 2017, you could deny the claim based on a SOL
defense as it has been two years since the date of accident and over 1
year since the last benefit was provided.
2. Now that you have determined that you have a potential SOL defense,
what next? These factors are other factors to consider in making that
determination:
a). Was an informational brochure sent to the claimant advising him/her
of their rights under the worker’s compensation and more importantly
providing information on the statute of limitations? If no such information
was ever provided to the claimant advising them about their rights including
the SOL, you, the employer/carrier, would likely not have a SOL defense
to providing further benefits to a claimant.
b). Was MMI every obtained from the treating physicians? Additionally,
was an impairment rating obtained, and if so, were impairment benefits
paid pursuant to that rating? If the answer is no to one or both of those
questions, the employer/carrier will likely be denied a SOL defense to
the payment of any additional benefits as case law has placed the burden
on the employer/carrier to obtain this information and pay any benefits
to which a claimant may be entitled to allow them to use a statute of
limitations defense to deny any further benefits.
So, the bottom line in most cases is to look at the date of accident, look
at the date any medical or indemnity was last paid in relation to the
date of accident, look at whether the informational packet regarding the
claimant’s rights/statute of limitations was sent to the claimant,
and make sure that all medical and indemnity benefits which may be due
and owing to or on behalf of the claimant have been paid. If this all
checks out, you may have valid SOL defense. Now, why do I say maybe? Of
course, there are caveats to the general rule and as such, each case is
determined based on his/her own particular facts. Thus, if you have a
factual scenario which you are not certain whether a statute of limitations
defense may be viable, our attorneys are happy to discuss any such fact
pattern with any claims professional and provide you a legal opinion in
that regard.