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.