Prosthetic Devices Blow up the Statute of Limitations

Tuesday, September 14, 2010 | 0

By Michael Rabinowitz
Banker Lopez & Gassler

For many of the changes in workers’ compensation, the saying would go “the legislature giveth, the legislature taketh.”  That saying remains true ... until the 1st District Court of Appeals says otherwise.

In another precedent setting case, the Court finds that, for accidents after the 1994 changes, an implantation of a prosthetic device continuously tolls the Statute of Limitations since it is “remedial treatment.”

But, what’s that you say?  Didn’t the Legislature specifically, and intentionally, remove prosthetic devices from s. 440.19 back in 1994? Once again, that remains true. . . until the 1st DCA says otherwise.

In Gore v. Lee County School Board, claimant suffered a serious compensable injury and required knee replacement surgery. As part of that procedure, a metallic prosthesis was implanted.  Her doctors then placed claimant at maximum medical improvement (MMI) and opined that she would require a replacement prosthetic every seven to 10 years. 

Cut to seven years later. Claimant needs to return to her doctors, presumably for a replacement prosthesis. She files a petition for benefits and the employer/carrier (E/C) denies based on the Statute of Limitations passing (more than two years after the accident and more than 1 year since the last date of remedial treatment).

The judge of compensation claims (JCC) agreed with the E/C and claimant appealed.  Today, the 1st DCA reversed on the grounds that the knee prosthesis is a “medical device” that provides “remedial treatment” and under s. 440.19(2) tolls the statute of limitations as long as the prosthesis remains implanted and the E/C has actual knowledge of the implanted prosthesis.

Once upon time, Section 440.19(1) used to say “no statute of limitations shall apply to the right for remedial attention relating to the insertion or attachment of a prosthetic device to any part of the body.”   In other words, prosthetics were exempt from the Statute of Limitations.  Then, in 1994, the Legislature repealed this section, thereby intending that prosthetic devices are subject to the current two-year/one-year rule of Section 440.19.

In Gore, the 1st DCA agrees that the Legislature intended to repeal the prosthetic exception. However, the Court found the Legislature did not intend to repeal the ability of claimant’s to prove the tolling of the statute.  Therefore, although a prosthetic device no longer gets the pre-1994 exception, the continued use of a prosthetic device may constitute the use of a “medical device” furnished by the E/C which is enough to toll the statute of limitations.  In essence, as long as the prosthesis remains in Claimant’s body, and the E/C knows about it (duh!), then the Statute never runs.  The claim continues for the life of the Claimant.

To support its reasoning, the 1st DCA cites to many cases that equate a prosthesis with a medical device which in turn is considered “remedial treatment” under the modern Statute of Limitations.  The problem I have is that all of these cases were decided under the pre-1994 law.  If you remember, my first appellate win, MedPartners/SRS v. Zenith, the Court specifically distinguished pre-1994 statute of limitation cases from the current s. 440.19.   Now, the Court is using pre-1994 case law to define the current act to support their decision.  The two cases seem to be using two contradicorty rationales for deciding what tolling is in a modern Statute of Limitations case.

Finally, the worry I have about Gore is that it provides a possible preview of how the Court might decide the pending Kaufmann appeal.  I wrote about that attorney fee case here.  In Kaufmann the Claimant’s bar is challenging the 7/1/09 legislative changes to Section 440.34, which removes the word “reasonable” and limits all Claimant attorney fees to the strict statutory guidelines.

In that case, the JCC applied the guideline formula to award a paltry fee of $684, but he found the fee to be unreasonable.  I wrote the following about the JCC’s order:

“. . . he questions whether the 7/1/09 changes are consistent with the original intent of Florida Workers’ Comp law, to create a self executing system that imputes the costs of Claimant’s injuries ‘on industry rather than society.’”

In Gore, Judge Van Nortwick writes something eerily similar:

“workers’ compensation legislation ‘is designed to relieve society generally, and injured employees specifically, of the economic burden resulting from work connected injuries and place the burden on industry.’”

In this case you have the Court bypassing legislative intent and shoehorning in prosthetic devices into the Statute of Limitations definition of ”remedial care.”  I could see a day where a court (either the First DCA or the Supremes) does the same thing with attorney’s fees, applying the same public policy rationale as Judge Van Nortwick and the Judge in Kaufmann.

More to come. . .

Michael Rabinowitz is a defense attorney for the Banker Lopez & Gassler law firm in Tampa. This column was reprinted with his permission from his blog, http://www.workerscompblog.wordpress.com