NORTH AMERICAN ROCKWELL AND EMPLOYERS INSURANCE OF WAUSAU, APPELLANTS,
v.
EDWARD J. FILLIBEN, APPELLEE
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North American Rockwell and its insurer appealed a worker's compensation order increasing benefits to employee Filliben for increased permanent partial disability. The court reversed, holding that the judge of industrial claims lacked authority to entertain Filliben's petition for modification because it was filed more than two years after the last compensation payment, outside the statutory limitations period.
No. The court held that under Florida Statutes § 440.28, a petition for modification must be filed within two years after the last compensation payment or within two years of the date an order rejecting a claim is mailed. Filliben's petition, filed nearly two years after the last payment, exceeded this limitation, and the judge of industrial claims lacked authority to entertain it. Prior appeals do not toll the statute of limitations.
[1] A petition for modification of a workers' compensation order must be filed within two years after the last compensation payment or within two years of the date of mailing…
[2] Appeals to higher courts do not toll the statute of limitations for filing a petition for modification of a workers' compensation order.
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Join FLexlaw to unlock all legal intelligence“A judge of industrial claims may entertain a petition for modification within two years after the last compensation paid pursuant to a compensation order, or within two years of the date copies of an order rejecting a claim are mailed to the parties.”
Establishes the statutory two-year limitations period for petitions for modification under section 440.28.
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Join FLexlaw to unlock all legal intelligenceFilliben injured his back in an industrial accident in 1970. After six years of litigation, a judge of industrial claims entered an order on May 3, 19…
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PER CURIAM.
Rockwell and Employers Insurance appeal a worker’s compensation order which increased the amount of benefits they were required to pay Filliben, their employee-insured. Appellants urge six points on appeal, including the ground that the statute of limitations precluded Filliben from claiming increased benefits. Because this issue demonstrates reversible error, it is unnecessary to discuss the remaining points on appeal.
In 1970, Filliben injured his back in an industrial accident. After six years of litigation, the judge of industrial claims entered an order fixing the date of maximum medical improvement as December 5, 1973, and awarded Filliben a twelve percent (12%) permanent partial disability. The order was entered on May 3, 1976. Filliben appealed, the Industrial Relations Commission affirmed, and the Florida Supreme Court denied certiorari. Filliben v. North American Rockwell et al., 354 So. 2d 980 (Fla.1977). Then on May 25, 1978, Filliben filed a petition for modification, and on April 30, 1979, he filed an “application for hearing on claim.” He sought additional remedial treatment, alleging his physical impairment had increased so that the earlier finding of twelve percent (12%) disability had been “a mistake.” Although Rockwell and Employers Insurance continued to furnish medical treatment and drugs through 1979, the parties stipulated that the last payment of compensation was made April 30, 1976. The judge of industrial claims granted Filliben’s requests for additional treatment.
A judge of industrial claims may entertain a petition for modification within two years after the last compensation paid pursuant to a compensation order, or within two years of the date copies of an order rejecting a claim are mailed to the parties. Section 440.28, Florida Statutes (1979). Clearly, the time between the date of the last payment of compensation and the date Filliben filed his petition for modification exceeds the two-year limitation, so the judge of industrial claims was without authority to enter the order now appealed.
The judge of industrial claims ruled in error that Filliben’s earlier appeal to this court and to the Supreme Court tolled the statute of limitations. Davis v. Combination Awning and Shutter Company, et al., 62 So. 2d 742 (Fla.1953).
Accordingly, the judge of industrial claims’ order is quashed.
MILLS, C. J„ and McCORD and THOMPSON, JJ., concur.
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Citator
Cited By
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ST. Joseph Hosp. & Sedgwick James of Fla., Inc. v. Causey, 667 So. 2d 464 (Fla. 1st DCA 1996)…stating that the statute of limitations on a petition for modification is not tolled during the pen-dency of an appeal. McKenney v. School Board of Palm Beach County, 456 So. 2d 524, 526 n. 2 (Fla. 1st DCA 1984); North American Rockwell v. Filliben, 389 So. 2d 345 (Fla. 1st DCA 1980). See also, Davis v. Combination Awning & Shutter Co., 62 So. 2d 742 (Fla.1953). However, our conclusion that modification was unnecessary renders this error harmless.…
Authorities Cited
- Davis v. Combination Awning & Shutter Co., 62 So. 2d 742 (Fla. 1953)