LARRY BORNEISEN, APPELLANT,
v.
HOME DEPOT AND SEDGWICK CLAIMS MANAGEMENT SERVICES, APPELLEES

Fla. 1st DCA | 2005-12-30
No. 1D04-4954
WEBSTER, BROWNING and POLSTON, JJ., concur.
917 So. 2d 361 Florida District Court of Appeal, First District (2005) Positive Treatment
Cited by 1 case

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Synopsis

A workers' compensation claimant filed a claim in 2002 for injuries from 1991-1992 accidents, which was denied as time-barred under the two-year statute of limitations. The court reversed, holding that the employer's provision of palliative treatment in 2001 revived the limitations period, rejecting the lower court's erroneous legal distinction between 'remedial' and 'palliative' care.


Holding

The court held that palliative treatment constitutes 'remedial attention' within the meaning of section 440.19(1)(b) and therefore revives the statute of limitations period. The claim filed in 2002 is timely because the limitations period was revived by the employer/carrier's provision of palliative treatment in 2001.


Headnotes

[1] A workers' compensation claim is barred unless filed within two years of the injury, unless compensation has been paid or remedial treatment furnished, in which case the…

[2] Remedial treatment for a prior injury, even if temporary exacerbated by a subsequent injury, can revive the statute of limitations for the prior injury.

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Key Quotes

“if the E/C provides remedial attention or rehabilitative services without an award on account of such injury, the claim may be filed within two years after the date of the last remedial attention”

States the statutory exception to the two-year limitations period that the JCC recognized

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Facts & Procedural History

Appellant sustained industrial injuries in 1991 and 1992 and received prescriptions related to those injuries as recently as September 2001, which wer…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant argues that the Judge of Compensation Claims (“JCC”) erred by denying his claim arising from injuries sustained during industrial accidents in 1991 and 1992. Specifically, the JCC held that the two-year statute of limitations period for filing such a claim had run, and that the employer/carrier’s (E/C) continued provision of “palliative” treatment to appellant had not revived the limitations period. We agree with appellant that the JCC erred, and therefore reverse.

In 2002, appellant filed a claim for benefits arising from the 1991 and 1992 accidents. The JCC specifically found that appellant’s prescriptions filled as recently as September 12, 2001 and September 18, 2001 were related to claimant’s 1991 and 1992 industrial accidents. The JCC also found that these prescriptions constituted “palliative” treatment and were paid for by the E/C on December 19, 2001. These findings are supported by competent substantial evidence in the record.

The JCC recognized that section 440.19(l)(b), Florida Statutes, provides, as an exception to the two-year statute of limitations, that if the E/C provides remedial attention or rehabilitative services without an award on account of such injury, the claim may be filed within two years after the date of the last remedial attention. However, the JCC ruled that appellant’s prescriptions were “palliative” instead of “remedial,” and therefore did not revive the statute of limitations.

Despite the above findings, the JCC based her ruling upon an erroneous legal distinction between “remedial” and “palliative” treatment, construing Ellis v. Galloway’s Inc., 794 So. 2d 710 (Fla. 1st DCA 2001), as meaning that only “remedial” and not “palliative” treatment is capable of reviving the limitations period under section 440.19. No such distinction was created by Ellis. Ellis merely recognizes that “remedial” care is capable of reviving the limitations period. 794 So. 2d at 711.

“Remedial,” as it is used in section 440.19, Florida Statutes, has been defined to include “palliative” care. See City of Orlando v. Blackburn, 519 So. 2d 1017, 1018 (Fla. 1st DCA 1987) (holding that “remedial,” as it is used in Section 440.19, includes “all medical treatment or attention which is reasonably necessary to treat a compensable injury or to mitigate its effects or conditions”); see also Colvin v. Colvin, 544 So. 2d 269 (Fla. 1st DCA 1989) (holding “[claimant’s continued receipt of treatment provided by the E/C (whether remedial or palliative) extended the limitations period for filing his claim”).

Accordingly, the limitations period on appellant’s 1991 and 1992 industrial accidents was revived when the E/C provided appellant with “palliative” treatment in 2001. On remand, the JCC is directed to treat appellant’s claim as timely filed.

REVERSED and REMANDED for further proceedings.

WEBSTER, BROWNING and POLSTON, JJ., concur.


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