Ring Power Corp. v. Murphy, No. 1D17-1316 (Fla. 1st DCA Feb. 23, 2018), Florida’s First District Court of Appeals held that an implanted
medical device that serves a temporary purpose does not toll the two (2)
year statute of limitations under Florida Statutes section 440.19. The
issue on appeal was a matter of statutory interpretation, and therefore,
the Court used the
de novo standard of review.
Several months after a 2006 workplace accident, claimant had spinal fusion
surgery in which surgeons used rods and screws to hold claimant’s
spine in place until the bone completely healed. Claimant’s spine
fully fused in less than a year after the 2006 surgery. The claimant filed
a petition for benefits in 2016, three (3) years after his employer last
provided worker’s compensation benefits.
The employer argued that the claimant’s petition was barred under
Florida Statutes section 440.19 because the petition for benefits was
filed over two (2) years after claimant last received medical treatment.
Florida Statutes section 440.19 sets a general two (2) year statute of
limitations for worker’s compensation claims subject to certain
exceptions. Relying on the
Gore v. Lee County School Board, 43 So.3d 846, 848 (Fla. 1st DCA 2010) and
Lee v. City of Jacksonville, 616 So.2d 37, 39 (Fla. 1993), the claimant asserted that his petition
was timely under section 440.19(2), which tolls the statute for one (1)
year after the employer last pays compensation or furnishes medical treatment
to the claimant. The claimant based his argument on the theory that the
rods and screws that remained in his body indefinitely after the surgery
were analogous to the continued use of a medical apparatus that constituted
continual remedial treatment under
The Court distinguished
Gore from the claimant’s case because the rods and screws implanted in
claimant’s spine had no functional purpose after his spinal fusion
was solid, whereas the claimant in
Gore continually used a knee prothesis to function on a day to day basis after
a partial knee replacement surgery. Thus, while the continued use of a
medical apparatus may toll the statute of limitations under Florida Statutes
section 440.19 (2), this exception does not extend to a medical apparatus
that ceases to serve any functional purpose. Carriers must remember to
allege the statute of limitations defense in their first responsive pleading
to avoid waiving the defense.
 Decision not final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.