Florida Injury Attorney Blawg
A statute of limitations is a provision that ends a person’s right to claim benefits or sue for compensation and damages. A Florida workers’ compensation claim or petition for benefits is forever barred unless it is filed within (1) two years of the date of injury, or (2) after the initial two years, within one year of the last payment of compensation or provision of medical treatment, care or attendance. Florida Statute Sections 440.19(1) & (2).
The two years from the date of injury element does not begin to run until the injured worker, as a reasonable person, knew or should have recognized the “nature, seriousness, and probable compensable character of his injury or disease.” See Herb’s Exxon v. Whatmough, 487 So. 2d 1169, 1172 (Fla. 1st DCA 1986) and 440.19(1). The practical application of this rule is that the statute of limitations (SOL) begins to run in most cases, but not all, from the date of the actual accident. Examples of when the SOL does not begin to run on the date of the accident include conditions of unknown cause, such as hepatitis and HIV infection (where the diagnosis comes well after the infecting mechanism, e.g., needle stick, occurred), a minor injury, e.g., tinge of back pain from lifting a box, that is diagnosed a few weeks later as a serious condition, and injuries resulting from repetitive trauma (see this blog). If the issue of knowledge goes to trial, a Judge of Workers’ Compensation Claims will make the final determination based on the “reasonable man” standard (a standard frequently used in law to denote a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining a particular issue).
Other exceptions to the 2-year rule include:
- If the injured worker is a minor or mentally incompetent.
- If the injured worker sues the employer, arguing that no employer/employee relationship existed and therefore the workers’ compensation immunity does not apply. Here, the limitations period does not begin to run until the suit is ended with a finding that that the injured person was an employee.
- The employer or carrier mislead or lied to the injured worker. Example: the carrier falsely told the injured worker that he was not entitled to workers’ compensation benefits while he was in jail. This tolled the SOL.
- The employer or carrier failed to inform the injured worker of his rights. Examples include failing to tell an injured worker that she might be entitled to wage loss benefits, McCort v. Southland Corp., 543 So. 2d 232 (Fla. 1st DCA 1989), and mistakenly telling the employee that the company does not have workers’ compensation insurance.
- The employer/carrier has furnished remedial care and attention. What is “remedial care and attention” has been a point of significant fighting. Currently, there is no statutory definition so the issue is controlled by case law.
Although the SOL defense may seem to be cut and dry, it is anything but. We have successfully defeated this defense in many of our workers’ compensation cases. The injured worker should not simply abandon his or her case after being told by the employer/carrier that his/her claim is barred by the SOL. Rather, a workers’ compensation claimant’s lawyer should be consulted immediately to discuss the case.
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Contact us 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.