Jeffrey P. Gale, P.A. // Florida Workers’ Compensation SOL Tolling, Impairment Rating & Guides

Our firm recently settled a hard fought workers’ compensation case arising from a 1995 industrial accident. We received the initial call from the Claimant in March of this year (2018). He explained that he had not received medical care for his injuries, tibia and fibula fractures, since three months post surgery in 1995, but had for the past ten years been experiencing progressively worsening pain for which he now wished to be examined by a doctor. He claimed to be unaware of the Florida workers’ compensation system’s two year statute of limitations (SOL).

We accepted the case and proceeded to undertake discovery on four critical issues, the answers to which would decide whether or not the carrier would be estopped from relying on the statute of limitations defense.

1. Did the workers’ compensation carrier send the claimant the section 440.185(4), Florida Statutes informational brochure which sets forth an explanation of his rights, benefits, and procedures for obtaining benefits and assistance under the Florida Workers’ Compensation Law?
2. If not, did the claimant otherwise gain knowledge of these rights, say, for example, from a lawyer or even a friend?
3. Did the carrier obtain a date of MMI or a permanent impairment rating from the medical provider it authorized and pay the impairment benefits?
4. If not, was the claimant otherwise aware of his entitlement to impairment benefits?

In 1995, as today, carriers were instructed by section 440.185(4) to inform claimants of their rights under the workers’ compensation law. While a failure to do this could toll the SOL — i.e., keep it from running — it is not an absolute. The workers’ compensation judge (JCC) is charged with determining “whether the claimant lacked actual knowledge of his rights under the workers’ compensation law, and, if so, whether the absence of such knowledge was the cause of the claimant’s failure to obtain the requested care within the limitation period.” Fontanills v. Hillsborough County School Board, 913 So.2d 28, 30 (Fla. 1st DCA 2005).

Fontanills involved the denial of medical benefits. While the claimant knew he was entitled to medical benefits under workers’ compensation, he did not know, either through notice from the carrier or by some other means, of the SOL. This lack of knowledge tolled the SOL, allowing the claimant to win a late claim for medical benefits. A similar thing happened in Gauthier v. Florida International University, 38 So.3d 221 (Fla. 1st DCA 2010), but rather than for being unaware of the SOL, the SOL tolled from being unaware of an entitlement to a type of benefit. In Gauthier, the claimant sustained some permanent vision loss from a 2005 accident. When she attempted to return to Bascom Palmer Eye Institute (the authorized provider) in 2008, the employer/carrier refused to authorize treatment because it determined that the SOL had run. A claim for benefits was filed and the claimant advanced the theory that E/C was estopped from asserting the SOL because of its failure to obtain a date of maximum medical improvement (MMI) and a permanent impairment rating (PIR) from the  authorized physician. The claimant prevailed by proving she was unaware of being entitled to permanent impairment benefits.

The points to be drawn from Fontanills and Gauthier are:

• Carriers have an affirmative duty to apprise claimants of their rights.
• The rights go beyond just informing of the SOL.
• While the failure to apprise may toll the SOL, it is not an absolute. If the claimant gains actual knowledge through some other means, the SOL may not be tolled.
• The claimant must show that the failure to know is why rights were not pursued timely.

In our case, the claimant knew he was entitled to medical benefits through workers’ compensation. In 1995, he had received authorized surgery, follow up care, and physical therapy. What he did not know — or so he claimed — is that he had a limited period of time to assert the right to further medical care or lose it. The carrier was unable to show that it had sent him the statutory informational brochure and he testified that he was otherwise unaware of the SOL.

The carrier was also unable to establish that it had obtained an MMI date and a PIR, and the claimant said he was not aware of the possible entitlement to impairment benefits. Because it makes more sense that laypeople would be less likely to have a passing knowledge of workers’ compensation impairment benefits than of the legal concept a statute of limitation, we felt that the MMI/PIR angle was our best route. For this angle to be successful, we needed for the surgeon and or another specialist to opine that the claimant was left with a permanent impairment.

Given the seriousness of the injuries — tibia and fibula fractures with surgical intervention involving the insertion of a 13″ medullary rod secured by screws, which remain in place to this day — we figured that permanency was a lock. We were surprised to learn otherwise. For 1995 accident dates, section 440.15(3)(a), Florida Statutes required the use of the Minnesota Department of Labor and Industry Disability Schedule or the Guides to the Evaluation of Permanent Impairment by the American Medical Association (4th Edition) to determine the permanency of an injury. These guides are exceedingly conservative — hence the reason why they were adopted by the Florida Legislature — and fail to address every condition. While the guides addressed tibia and fibula fractures, it was not clear whether they considered permanent hardware. We concluded that they did not. In cases not covered by the guides — those applicable in 1995 were supplanted in 1996 by the Florida Impairment Guide — permanency can be established by “qualified expert testimony based on the training, experience, and expertise of the witness….” Rhaney v. Dobbs House, Inc., 415 So.2d 1277, 1280 (Fla. 1st DCA 1982). In reliance on this authority, we secured the opinion of an IME doctor of a 5% permanency. With this opinion, we felt confident the JCC would estop the carrier from asserting the SOL. Given the carrier’s fair and reasonable settlement offer, it appeared to agree with our assessment.