Statute of Limitations Defense Waived if not in Initial Response

Wednesday, May 12, 2010 | 0

By Michael Rabinowitz
Banker Lopez Gassler

The statute of limitations is the one disputed area of workers’ comp law that never gets old. At least the 1st District Court of Appeals thinks so. Over the past few years the court has been proactive in fine tuning section 440.19. My own experience is evidence to that.

Now comes a new wrinkle that adjusters must be aware of.

Section 440.19 requires claimant to file a Petition for Benefits within two years of his accident and then within one year of the last date the carrier made a payment of benefits. If he fails to do such, his petition is barred by the statute of limitations.

However, the statute also requires a carrier to declare the statute of limitations in their “initial response” to the petition for benefits. In Certain v. Big Johnson Concrete Plumbing, Inc., the carrier just missed this requirement.

Three years after his accident, claimant filed a petition and the carrier prepared two responses on the same day.  One was a “Response to the Petition for Benefits” which simply stated the carrier denied the claim. The second was a “Notice of Denial,” which specifically listed the statute of limitations as the carrier’s defense.

The problem was that the carrier electronically filed the “Response” and the “Notice of Denial” was mailed the next day, so the “initial response” did not mention the statute of limitations.

Nitpicky? You betcha!  Draconian? Oh yeah!

But when you look at the statute, “intitial” means “initial” and the carrier did not follow the rule. Remember when I wrote about the average weekly wage and when can a claimant include health insurance benefits in the calculation?

However, the reasoning of the court is that these potential health benefits had no “real present day value” to claimant on the 88th day of his employment. They only have value on the 90th day, and if claimant got injured before then, too bad. It sounds harsh, but a line has to be drawn and in this case. That line is the 90th day.

Like in that case, the 1st DCA here had to draw a line. Even though the carrier prepared the responses on the same day, the initial response did not comply with the statute.  If the carrier missed it by one day, then too bad.  A line must be drawn and the carrier found itself on the wrong side.

The lesson? If you think you have statute of limitations defense, be sure to coordinate with your attorney before making any responses to a petition for benefit.  One wrong move and it could cost you the denial.

Subscribers may read the Certain decision by clicking the case title in the sidebar.

Michael Rabinowitz is an attorney for Banker Lopez Gassler in Tampa. This column was reprinted with his permission from the firm's blog, http://workerscompblog.wordpress.com/