State News : Florida

Noah Vollmer, Esq. Bleakley Bavol Denman & Grace

                The general understanding of Section 440.19, Florida Statutes, which sets forth the statute of limitations for workers’ compensation claims, is that an injured employee has two years from the date they knew or should have known that their injury arose out of work performed in the course and scope of their employment in which to file a petition for benefits. Thereafter, payment of any indemnity benefit or furnishing medical treatment tolls the limitations period for one year. In other words, the statute of limitations is two years from the date of accident or one year from the last provision of benefits, whichever is later.

                A pair of recent decisions from the First District Court of Appeal offer a new method of interpreting Florida’s statute of limitations. Both opinions arise from the same case, Ortiz v. Winn-Dixie, Inc. In this case, a Winn-Dixie employee tripped and fell while working in 2003, sustaining injuries to her right side which eventually resulted in having her right kidney removed. The carrier provided all necessary treatment and authorized Ms. Ortiz to treat with a new physician, Dr. Young, beginning in 2015. Ms. Ortiz treated with Dr. Young eight times between September 2015 and her last authorized appointment with Dr. Young in January 2019. Unbeknownst to the carrier, Ms. Ortiz had seen Dr. Young twice in August 2019 and again in April 2020. For reasons unknown, Dr. Young requested that these visits be billed to Ms. Ortiz’s personal health insurance. The Carrier contacted Dr. Young’s office in May 2020 and inquired about any recent dates of service. Upon learning of the August 2019 and April 2020 visits, the carrier filed a notice of denial which effectively deauthorized Dr. Young. Ms. Ortiz then filed a petition for benefits seeking authorization of a return appointment with Dr. Young, which the carrier denied on the grounds that the statute of limitations had expired, as more than one year had passed since the last provision of benefits in January 2019. The Judge of Compensation Claims sided with the carrier, and Ms. Ortiz appealed the ruling.

                In its initial opinion published in May 2023, the First DCA affirmed the trial court ruling and held that the August 2019 and April 2020 visits were not “authorized treatment” which would toll the statute of limitations because Ms. Ortiz did not establish that these visits were in connection to her compensable injuries. However, the Court went beyond this and offered a new framework for analyzing Florida’s statute of limitations. The Court stated that the initial two-year period following an accident serves as a “master timer” that stops for one year each time a benefit is provided. In other words, the “master timer” is a period of 720 days, and days are only subtracted from the 720 when it has been more than one year from the last provision of benefits. If an injured employee has not used all of their 720 days, the statute of limitations still has not expired, even if more than a year has passed since the last provision of benefits. Ms. Ortiz moved for rehearing, and the carrier notably requested affirmance of the decision but without the aforementioned statute of limitations analysis.

                Just recently, on December 23, 2024, the First DCA published its opinion on the motion for rehearing. To further add to the confusion, the First DCA granted the motion for rehearing, set aside the trial court order, and held that the statute of limitations had not expired in Ms. Ortiz’s case. The Court reasoned that the visits to Dr. Young in August 2019 and April 2020 were no different than the visits to Dr. Young that the carrier had authorized and paid for since 2015. The only difference here was that the August 2019 and April 2020 visits were billed to Ms. Ortiz’s personal insurance. The Court held that it is the furnishing of treatment—not the billing of treatment—which tolls the statute of limitations. Which insurance carrier gets billed for treatment has no legal bearing on the statute of limitations, and an injured employee cannot be prejudiced because of a billing issue.

                The majority opinion contains no mention of the “master timer” statute of limitations analysis. However, in a lengthy concurring opinion, Judge Tanenbaum (who authored both the Court’s original 2023 opinion and the opinion on the motion for rehearing) essentially doubled down on his “master timer” framework and again advocated for using this method to calculate when the statute of limitations expires. Notably, in a separate concurring opinion, Judge Bilbrey wrote that he “join[ed] the majority opinion in full,” that “Judge Tanenbaum’s concurring opinion … is not the opinion of this court,” and that Judge Tanenbaum’s “reasoning may be found to be persuasive or may be discarded.” Judge Tanenbaum countered that the Court did not adopt his analysis “not because it is not valid, but because Ortiz did not raise it.”

                Thankfully, the Court has (at least for now) retreated from the “master timer” statute of limitations analysis. However, as Judge Tanenbaum noted in his concurrence, several judges used this method to address statute of limitations issues between the first and second Ortiz opinions, and it is a near certainty that claimants’ attorneys will continue to advance this argument moving forward. Accordingly, while the conventional understanding of the statute of limitations set forth above remains the current state of the law, defense attorneys need to be aware of the “master timer” analysis in order to combat it. 

In a recent decision, the Florida First District Court of Appeal reaffirmed that the payment of fees and costs to a claimant’s attorney is not a benefit within the meaning of the workers’ compensation statutes which serves to toll the statute of limitations. American Airlines Group v. Lopez, 2024 WL 2306999 (Fla. 1st DCA May 22, 2024). As an initial matter, Section 440.19(1), Florida Statutes provides that all petitions for benefits are barred unless they are filed within two years of the date on which the injured employee knew or should have known that their injury arose out of work performed in the course and scope of their employment. Section 440.19(2) provides that payment of any indemnity benefit or the furnishing of medical treatment tolls the statute of limitations for one year from the date such benefits were provided. In other words, the applicable statute of limitations period in Florida is the later of two years from the date of the accident or one year from the date of the last indemnity payment or authorized treatment.

In the Lopez case, the claimant suffered a compensable accident on August 8, 2019, and filed two petitions for benefits on July 24, 2020. The Employer/Carrier/Servicing Agent provided both medical and indemnity benefits. The last medical bill was paid September 22, 2020, and the last indemnity payment was made November 13, 2020. The issue of entitlement to attorney’s fees and costs remained pending from the claimant’s July 24, 2020 petitions, though this was resolved via stipulation on April 28, 2021, and the stipulation was approved by the Judge of Compensation Claims on May 3, 2021. On December 1, 2021, more than two years after the subject accident and more than one year after the last medical or indemnity payment, the claimant filed another petition followed by a third petition on June 6, 2022.[1] The E/C/SA asserted a statute of limitations defense, which was rejected by the JCC on the grounds that the payment of attorney’s fees is considered a monetary benefit to the claimant, which tolled the statute of limitations for one year.   

On appeal, the First DCA held that the JCC erred in holding that payment of attorney’s fees and costs is a “benefit” which has the effect of tolling the statute of limitations. The court applied the statutory interpretation principle of expression unius est exclusion alterius – the expression of one thing is the exclusion of another – in holding that the statute clearly sets forth the two events which serve to toll the statute of limitations: payment of indemnity benefits or furnishing authorized medical treatment. By expressly including these two events in the statute, the court reasoned that the Florida legislature necessarily excluded all others. Accordingly, as payment of an attorney’s fee is not payment of indemnity benefits or furnishing medical treatment, the statute of limitations had run, and the claimant’s petitions were untimely and barred.

Employees Must Establish Causal Link to Employment In Workplace Violence Cases

Noah Vollmer, Esq. Bleakley Bavol Denman & Grace

In a case which received significant attention over the last year, the First District Court of Appeal, which hears all workers’ compensation appeals in Florida, held that an employee who was shot while at work did not meet his burden of proving that his injury arose out of his employment. In Normandy Insurance Company v. Bouayad, 372 So. 3d 671 (Fla. 1st DCA 2023), the Claimant, Mohammed Bouayad, worked as a general manager for a rental car business located in the Orlando International Airport Holiday Inn. Mr. Bouayad worked at a kiosk inside the hotel atrium. At the end of each day, Mr. Bouayad would carry rental car agreements and cash from the kiosk to an office located in a separate building roughly fifty feet away from the kiosk. On June 28, 2019, around midnight, Mr. Bouayad was walking from the kiosk to the office when an unknown assailant emerged and shot him seven times. Surveillance video of the shooting showed that the shooter shot Mr. Bouayad, turned to leave, then turned back around and shot Mr. Bouayad several more times before fleeing. The shooter did not make any attempt to rob Mr. Bouayad or take anything from him. Despite being shot seven times, Mr. Bouayad was able to make it back to the hotel. A hotel guest came over to assist Mr. Bouayad, at which time Mr. Bouayad told the guest “Robert shot me” and also that the police should look for his assailant in a blue Ford Mustang.   

Mr. Bouayad petitioned for workers’ compensation benefits and his claim was subsequently denied by the Employer/Carrier who argued that the injuries Mr. Bouayad sustained did not arise out of his employment.[1] Specifically, the Employer/Carrier argued that there was reason to believe Mr. Bouayad was shot by Robert Aponte, and that the shooting stemmed from a dispute over an alleged debt between Aponte and Mr. Bouayad’s son. The day prior to the shooting, Mr. Aponte confronted Mr. Bouayad’s son and threatened to kill him. The Employer/Carrier argued that the shooting which occurred the next day was related to this dispute and confrontation rather than Mr. Bouayad’s employment. In support of this argument, the Employer/Carrier presented evidence that Mr. Bouayad told the hotel guest that “Robert” shot him and that the police should look for a blue Ford Mustang, that Mr. Aponte owned a blue Ford Mustang, and that the hotel where Mr. Bouayad worked was registered as a residence for Mr. Aponte.

In response, Mr. Bouayad, despite his statements made in the immediate aftermath of the shooting, subsequently claimed that Mr. Aponte was not the shooter and that his shooting was work-related. Notably, the police did not charge Mr. Aponte with the shooting, though this was based in part on several witnesses who knew Mr. Aponte (including Mr. Bouayad’s wife and son) viewing the surveillance video and denying that Mr. Aponte was the shooter.[2]  In support of his contention that the shooting was work-related, Mr. Bouayad presented expert criminology testimony that his employment exposed him to increased risk of becoming a crime victim based on the inherent risks associated with his job responsibilities and work hours as well as the crime rate in the area where his employment was located compared to the area near Mr. Bouayad’s home. Further, Mr. Bouayad presented testimony from the company’s co-owner that several rental cars had been stolen and others had been vandalized in the few years preceding the shooting. Additionally, the co-owner testified that three employees had been fired in the weeks before the shooting, two for theft and one for a failed drug test. That said, the co-owner also testified that he was unaware of any violent crime on the hotel premises prior to the shooting and that none of the terminated employees had threatened violence.

After a trial, the Judge of Compensation Claims entered an order finding that Mr. Bouayad’s injuries were compensable on the grounds that his “employment substantially contributed to the risk of injury and to risks which [Mr. Bouayad] would not normally be exposed to during his nonemployment life.” After granting a motion for rehearing filed by the Employer/Carrier, the JCC entered an amended final order which still found that Mr. Bouayad’s injuries were compensable, but this time concluded that the shooting was “a targeted attack based upon inside information that [Mr. Bouayad] would be working late” and that “the reason for the targeted attack was more likely than not related to the termination of a prior employee[s] or other job related issue rather than the incident with Robert Aponte.”[3]  The JCC held that Mr. Bouayad’s employment was the major contributing cause of the shooting and his related injuries because, but for Mr. Bouayad walking between the kiosk and the office as part of his employment, the shooting would not have occurred at the time and place it did.

For an accident and injury to be compensable under Florida law, it must “aris[e] out of work performed in the course and scope of employment.” § 440.09(1), Fla. Stat. Florida courts have held that the “arising out of” element refers to the origin of the cause of the accident. Specifically, “for an injury to arise out of and in the course of one’s employment, there must be some causal connection between the injury and the employment or it must have had its origin in some risk incident to or connected with the employment or that it flowed from it as a natural consequence.” Fid. & Cas. Co. of N.Y. v. Moore, 196 So. 495, 496 (1940).

On appeal, the First DCA held that Mr. Bouayad failed to meet his burden of proving that his injuries arose out of the work he performed. The Court first noted that, although the workers’ compensation system is a no-fault system and so an employee need not establish fault, for an accident and injury to be compensable, an employee still must establish occupational causation. The Court stated, “although workers’ compensation benefits are payable irrespective of fault, they are not payable irrespective of cause.” With respect to Mr. Bouayad’s case, the Court held that there was no causal link between Mr. Bouayad’s injuries and the work he performed.  Mr. Bouayad did not present any evidence which identified the shooter, established their motive, or connected the shooter to the work Mr. Bouayad performed. It was not enough that the shooting happened while Mr. Bouayad was working. The Court stated “[t]he sole cause of his injuries was that he was shot. At most, the work he performed for [the employer] placed Bouayad in the wrong place at the wrong time. This is not enough to establish occupational causation.” The Court concluded its opinion by certifying the following question to the Florida Supreme Court: “[W]hen an act of a third-party tortfeasor is the sole cause of an injury to an employee who is in the course and scope of employment, can the tortfeasor’s act satisfy the occupational causation element, as defined by section 440.02(36), Florida Statutes, necessary for compensability under the Worker’s Compensation Law?”

The Bouayad case provides an employer friendly ruling with respect to acts of violence occurring in the workplace. Bouayad reiterates that the employee has the burden of proving both that an accident arose out of and occurred in the course and scope of their employment. An employee cannot meet this burden simply by showing that their accident occurred while they were at work. This ruling seemingly provides employers with protection against workplace violence accidents which have no connection whatsoever to the subject employment.   

While there were not many changes to Florida’s workers’ compensation statute during our recent legislative session, there was one change which was significant and has already become law.  In 1994 Florida passed a statute providing for the use of an expert medical advisor (EMA) in contested workers’ compensation cases.  While there are a number of subsections which specify how the EMA process works, Fla. Stat. 440.13(9)(c) addressed when and how an EMA is to be appointed.

If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor. The injured employee and the employer or carrier may agree on the health care provider to serve as an expert medical advisor. If the parties do not agree, the judge of compensation claims shall select an expert medical advisor from the department’s list of certified expert medical advisors. If a certified medical advisor within the relevant medical specialty is unavailable, the judge of compensation claims shall appoint any otherwise qualified health care provider to serve as an expert medical advisor without obtaining the department’s certification. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims. The expert medical advisor appointed to conduct the evaluation shall have free and complete access to the medical records of the employee. An employee who fails to report to and cooperate with such evaluation forfeits entitlement to compensation during the period of failure to report or cooperate.

Over the course of almost 30 years the word “shall” in the statute was interpreted to make the appointment of an EMA mandatory giving the judge of compensation claims very little discretion. Appointments of an EMA have been most common in cases where authorization of a surgery was disputed, whether MMI was reached and applicable permanent restrictions.  A presumption of correctness is attached to the EMA’s opinion and the report of the EMA automatically comes into evidence.  The “clear and convincing” evidentiary standard was difficult to overcome despite many attorneys doing their best in deposing the EMA and extensively probing his or her opinions.  Because the parties rarely could agree on the appointment of an EMA the JCC was required to appoint one.  It often was a difficult chore if a specialist outside of orthopedics, neurology or neurosurgery was necessary.  It was also difficult to find a doctor in some of Florida’s more rural areas.

Effective May 25, 2023 the word “shall” was replaced with the word “may.”  This gives the JCC almost complete discretion to appoint an EMA in a disputed case.  Particular attention will be paid to when an EMA is requested and whether the medical issue is fairly routine as opposed to something arcane and unusual.  Because Florida’s workers’ compensation statute requires a final hearing to take place no later than 210 days after a petition is filed, fewer cases will now go past that deadline.  It is expected that there will likely be a dramatic drop in the number of EMA’s appointed by our JCC’s.