Opinion
No. 1D21-0885
05-31-2023
Annalie ORTIZ, Appellant, v. WINN-DIXIE, INC., Travelers Insurance, and Sedgwick CMS, Appellees.
Richard A. Sicking and Mark A. Touby, Touby, Chait & Sicking, P.L., Coral Gables, for Appellant. William H. Rogner, HR Law, P.A., Winter Park, for Appellees.
Richard A. Sicking and Mark A. Touby, Touby, Chait & Sicking, P.L., Coral Gables, for Appellant.
William H. Rogner, HR Law, P.A., Winter Park, for Appellees.
Tanenbaum, J.
Winn-Dixie, Inc. had been furnishing medical care to Annalie Ortiz as her employer for years under Florida's workers’ compensation system in connection with a work-related injury. Sedgwick notified Ortiz that it was terminating the authorization of care because the two-year limitation period set out in section 440.19, Florida Statutes, for filing a new petition for benefits ("PFB") had run. See § 440.19(1), Fla. Stat. (barring any PFB that is not "filed within 2 years after the date on which the employee knew or should have known that the injury" was caused by the work). Ortiz nevertheless tried to challenge this termination by filing a new PFB. Her contention was that the period had been tolled under the same statute. See § 440.19(2), Fla. Stat. (providing that if the employer's carrier "furnish[es ]remedial treatment, care, or attendance" upon being notified of the injury or receiving a petition for benefits, the two-year limitations period is tolled for a year).
In addition to Winn-Dixie, we have two other appellees: Travelers Insurance, which served as Winn-Dixie's carrier to satisfy its statutory obligation to provide benefits under chapter 440; and Sedgwick CMS, which managed the claim as Traveler's servicing agent. See § 440.13(2)(a), Fla. Stat. ("Subject to the limitations specified elsewhere in this chapter, the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require ...."); see also § 440.09(1), Fla. Stat. (requiring the employer to "pay compensation or furnish benefits" as set out in chapter 440 "if the employee suffers an accidental compensable injury ... arising out of work performed in the course and the scope of employment"); § 440.38(1), Fla. Stat. (requiring the employer to "secure the payment of compensation under this chapter"); § 440.41, Fla. Stat. (providing for the regulation of the discharge by the employer's carrier of the employer's "obligations and duties" regarding the liability imposed by chapter 440, treating notice to and knowledge of the employer as notice to and knowledge of the carrier, and providing that "any compensation order, finding, or decision shall be binding upon the carrier in the same manner and to the same extent as upon the employer").
"Toll" here means "to extend or suspend." Medpartners/Diagnostic Clinic Med. Group, P.A. v. Zenith Ins. Co. , 23 So. 3d 202, 206 (Fla. 1st DCA 2009). The 1994 amendments to chapter 440 changed the effect "the provision of benefits" had on the running of the statute. See id. at 205 (noting that with the 1994 amendments to chapter 440, "the provision of benefits pursuant to a PFB or notice of injury, rather than creating an independent point of reference from whence a claim may be filed, only operates to ‘toll’ or extend the initial statute of limitations"). The current statute "envisions a potentially continuous extension (tolling) of the original statute of limitations predicated on the timely receipt of benefits pursuant to a PFB or notice of injury, or the filing of a PFB." Id. at 205–06.
After an evidentiary hearing, the judge of compensation claims ("JCC") dismissed the PFB as barred. That order now is on review via Ortiz's appeal. As we will explain, we reject her argument that a visit to a carrier-authorized provider by itself—without proof that the particular visit was in connection with care for a compensable injury—is enough to demonstrate tolling unless the carrier proves to the contrary. Simply stated, Ortiz's position conflicts with the text of the statute and the reasonable gloss that decisions of both this court and the supreme court have given to the text of that statute over time. Upon our review of the record and a proper application of the statutory text, we can say that because Ortiz failed to offer evidence to establish tolling in avoidance of the prima facie case demonstrating the limitation defense, the JCC was correct.
I
While working at Winn-Dixie in Naples in 2003, Ortiz tripped and fell, causing the box she was carrying to hit her right side. The injury ultimately resulted in the removal of her right kidney, and the carrier did not dispute compensability. Ortiz received medical treatment and care related to her nephrectomy—managed by the servicing agent—for many years, and in 2015, she began treating with a new authorized physician, Dr. Young. Between September 2015 and January 2019, Ortiz attended eight appointments with Dr. Young, all of which were authorized by Sedgwick and paid for by the carrier. The last authorized visit occurred on January 29, 2019, when Ortiz was seen for a six-month follow-up. Sedgwick received correspondence regarding that appointment on February 18, 2019, and it issued payment for the visit on March 6, 2019.
Not having received any communication from Dr. Young's office since the contact about the January 2019 appointment, Sedgwick initiated contact with the office in May 2020—that is May 2020 , not May 2019. Sedgwick inquired about any recent dates of service and requested accompanying notes. The doctor's office responded by sending records regarding an appointment Ortiz attended on April 7, 2020, more than a year following the January 2019 visit that Sedgwick had last authorized and covered. The following month, Sedgwick requested information related to any additional appointments Ortiz may have had, and Dr. Young's office advised that Ortiz had also been seen on August 1, 2019, and August 12, 2019—appointments that Sedgwick previously had not been aware of, authorized, or paid for.
Two months later, on August 7, 2020, Sedgwick filed a notice of denial of benefits, effectively deauthorizing Dr. Young. On August 26, 2020, Ortiz filed a PFB seeking authorization, provision, and scheduling of an appointment with Dr. Young. Sedgwick responded, asserting in part that the PFB was barred by section 440.19. At the final evidentiary hearing, the employer presented a prima facie case regarding the statute of limitation: it established the date of accident (September 28, 2003) and the fact that the August 26, 2020, PFB was quite a bit more than two years from that accident date.
Ortiz attempted to avoid the defense by demonstrating tolling of the limitation period based almost entirely on proof of Dr. Young's continued status as her authorized provider when she saw him in August 2019 and April 2020. She also presented office notes from those visits in order to show the visits were connected to a urinary tract infection ("UTI") from which she continued to suffer, which she assumed was related to her lost kidney. She did not present any testimony from Dr. Young or any other medical expert that linked those visits to her underlying compensable injury, and she conceded that no doctor had told her the UTI was related to her workplace injury. Indeed, she testified she was told that Dr. Young had instructed the visits were to be billed to her private health insurance rather than her workers’ compensation carrier and that there was no authorization for those visits.
The JCC denied the claim and dismissed the PFB as barred by the limitation set out in section 440.19. He concluded that a prima facie case for application of the limitation defense had been made, and he looked to the claimant to prove that the limitation period had not run by application of the tolling provided for in section 440.19(2). Relying on the claimant's own testimony, the JCC found that she had shown nothing more than that the three visits were with Dr. Young while he was still an authorized provider, which was not enough. According to the JCC, "[t]he only evidence before me is that those visits were not related to her compensable accident or injuries."
II
As we already noted, Ortiz takes issue in this appeal with the JCC's determination that to avoid the defense, she needed to prove more than the fact her August 2019 and April 2020 visits were with Dr. Young while he was still an authorized provider. She argues, essentially, that her merely seeing an authorized provider should have given rise to a presumption that the carrier had "furnished" care and treatment at those visits, as the term is used in section 440.19(2). That is not a correct reading of the law. To explain, we need to go over how the limitation and tolling provisions of section 440.19 work together.
A
To begin, we should be clear that the application of the limitation is to the PFB being referenced in the carrier's affirmative defense—the one filed on August 26, 2020. The long-term workers’ compensation benefits Ortiz was receiving presumably came about after she advised Winn-Dixie and filed a PFB within two years of the date of her injury. See § 440.19(1), Fla. Stat. That she did so originally, of course, is not in dispute; as we noted at the beginning, she had been receiving a benefit for a long period of time. The limitation period we are talking about here does not relate to her original claim.
The two-year period established by this statute, however, applies equally to any subsequent PFB. In turn, even though Ortiz's original notification to her employer and claim for benefits quite obviously occurred within the two-year period, the limitation period still runs with respect to any PFB she may have wanted to submit in the future regarding benefits to which she could become entitled under chapter 440 in connection with the same workplace injury. The August 26, 2020, PFB was just such a "future" PFB, and it was subject to the same two-year limitation period that started running from the date of the accidental injury. In a case involving an extended period of benefits like we have here, it might seem like an open-and-shut case regarding a bar against subsequent PFBs regarding the claim. It is not, though, because the running of this two-year period is tolled for a year each time the employer furnishes medical treatment or care pursuant to the claim set out in the original PFB. See § 440.19(2), Fla. Stat.
We will explain how this works in figurative terms. Imagine a two-year master countdown timer starting to run on the date of the accidental injury, as we just described. Once the employee files a petition (like Ortiz presumably did in 2003), that two-year timer is stopped with respect to the claim or claims raised therein as they await administrative disposition. Consider that stoppage, though, as if it were a split time—stoppage only with respect to that original PFB. The master timer nevertheless continues counting down with respect to any later claim arising out of the same accident. The master timer then stops counting down each time the employer furnishes a benefit pursuant to the original PFB. When that happens, a separate tolling timer starts counting down instead. If, while the tolling timer is running, the employer furnishes another benefit (either an indemnity payment or some care or treatment), the timer resets to one year and starts counting down again.
By the very nature of tolling (defined above in the margin), the limitation timer and the tolling timer run in opposition to each other: They cannot both run at the same time. That means as the tolling timer is running, the limitation timer is stopped with whatever time was remaining when the tolling timer started. When the one-year tolling timer reaches zero and has not been reset by the employer's furnishing of another benefit, the master two-year limitation timer starts counting down again from where it left off. Until a point is reached where both timers reach or remain at zero together (that is, time has run out on both timers simultaneously), the one-year timer can continue to be reset and run for as long as the employee continues under an award of benefits. Once the two-year timer reaches zero, however, the right to file a PFB is extinguished and cannot be recaptured by "a tolling event occurring after the extinguishment of the right." Medpartners , 23 So. 3d at 206.
B
With this construct set up, we turn to Ortiz's argument for setting aside the JCC's final compensation order. The carrier, as it was required to do, asserted the statute of limitations found in section 440.19(1) as a defense in its initial response to Ortiz's August 26, 2020, PFB. See § 440.19(4), Fla. Stat. The carrier then bore the initial burden to produce evidence establishing a greater-than-two-year gap between the date of injury and the date the PFB was filed. See Palmer v. McKesson Corp. , 7 So. 3d 561, 563 (Fla. 1st DCA 2009) ("Because running of the statute of limitations is an affirmative defense, the employer ... had the burden of raising that defense and proving that the petitions for benefits were untimely pursuant to section 440.19(1)."). Put in terms of our illustration in the previous sub-part, the carrier had to present evidence that indicated the two-year timer had run down to zero by the time the PFB was filed. The carrier obviously did this.
And once the carrier did, the burden shifted to Ortiz to avoid the statute of limitations with proof demonstrating that there, in fact, was still time remaining on the master two-year limitation timer. See § 440.19(2), Fla. Stat.; Palmer , 7 So. 3d at 563–64 (stating that "where a workers’ compensation claimant seeks to extend or avoid the statute of limitations by operation of section 440.19(2), he or she bears the burden of establishing the exception"). One way Ortiz could have done this was to present sufficient evidence to show that there still was time left on the master limitation clock, even if the tolling timer had hit zero. Because Ortiz's last indisputably authorized visit occurred on January 29, 2019, and less than two years had run between the January 29, 2019, visit and the August 26, 2020, PFB, it was at least possible to prove that the two-year limitation period had not yet run because of an accumulation of tolling periods. Under this approach, she would have had to present evidence to enable the JCC to perform some basic math, adding up how much time had elapsed in the following intervals: 1) between the date of accident and the date the initial claim was filed; 2) during every period between the expiration of one tolling period and the start of another; and 3) from the putative expiration of the last tolling period to August 26, 2020, when the PFB was filed. If that sum ended up being under two years, then the limitation period would not have run yet, and the PFB would not have been barred. She did not pursue this form of avoidance before the JCC.
Ortiz instead pursued the other way of avoiding the limitation defense: by presenting evidence that the tolling timer had reset and was still running (such that the limitation timer could not yet have reached zero). With Ortiz choosing this tack, the burden was on her to present evidence showing that the carrier "furnished" the remedial treatment and care she received at one or the other of her August 2019 visits (as the April 2020 visit came after the limitation timer would have expired). She fell short of satisfying even her burden of production on this.
There is no doubt that at the time of the August 2019 appointments, Dr. Young continued to be Ortiz's authorized provider of care for her compensable injury. Authorizing Dr. Young, however, is not the same as "furnishing" treatment or care under section 440.19(2). A carrier's authorization of a provider just means that the carrier has approved a course of treatment through that provider as appropriate to the compensable injury. Cf. § 440.13(2)(e), Fla. Stat. (requiring the employer to review a proposed course of medical treatment "to determine whether such treatment would be recognized as reasonably prudent"); id. (2)(f) (providing for a one-time change of authorized physician, after which "the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier").
Before it can be said that the employer has "furnished" care in order to trigger the tolling of section 440.19(2), either the carrier must have authorized the specific treatment, or the authorized provider must have treated the employee pursuant to the previously approved treatment plan. Cf. § 440.13(2)(a), Fla. Stat. (requiring the employer to "furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require , which is in accordance with established practice parameters and protocols of treatment as provided for in this chapter" (emphasis supplied)); see Taylor v. Metropolitan Dade County , 596 So. 2d 798, 799 n.2 (Fla. 1st DCA 1992) ("We reject the claimant's argument that the mere fact of visiting the authorized physician, regardless of the purpose or motive for the visit, is sufficient to toll the two-year limitations period."); Bell v. Com. Carriers , 603 So. 2d 683, 685 (Fla. 1st DCA 1992) (stating that to determine whether "remedial treatment" has been furnished for the purpose of the limitation period, "the critical question" is whether the previously authorized provider administers care or treatment "causally related to a compensable injury"); McNeilly v. Farm Stores, Inc. , 553 So. 2d 1279, 1280–81 (Fla. 1st DCA 1989) (noting that "so long as a doctor is authorized to provide follow-up care, and visits to the doctor for continuing supervision and evaluation for possible change in treatment are reasonably necessary from a medical standpoint , such visits" will satisfy the "furnished" care requirement to restart the limitation period under the prior version of the statute (emphasis supplied)).
In the light of section 440.13(2)(a), it makes no sense to equate "authorization" with the "furnishing" of care. "Authorized" just means that the provider will be reimbursed by the carrier when he or she treats the employee for a workplace injury. See id. (3)(a) ("As a condition to eligibility for payment under this chapter, a health care provider who renders services must receive authorization from the carrier before providing treatment."). That same provider of course could also serve as the employee's personal doctor, providing non-injury related care and treatment as well. Non-reimbursable care and treatment could not reasonably be said to still be care and treatment furnished by the employer.
Sedgwick's representative testified that Dr. Young was authorized to treat Ortiz for "her kidney follow-ups on a yearly basis" and added that Ortiz could be seen more frequently if needed. But Ortiz then failed to present any evidence that tied the treatment or care she received during the August 2019 visits to this treatment plan approved by Sedgwick. Cf. Sol Dale Bldgs., Inc. v. Schweickert , 656 So. 2d 606, 609 (Fla. 1st DCA 1995) (approving the JCC's finding that the employer "furnished" medical care within the limitation period because there was competent substantial evidence showing that the provider treated the claimant "for injuries sustained as a result of" the compensable accident); Bell , 603 So. 2d at 685 (determining that the claim was not barred by the statute of limitations because "medical testimony" indicated that the care rendered was "remedial" to a particular compensable injury). Again, Ortiz did not present testimony from Dr. Young that might have made that connection. The office notes she submitted showed no more than the fact that she treated with Dr. Young while he was still an authorized provider. Those visits easily could have been to receive care and treatment independent of the work injury. Notes from the August 2019 visits indicate that Ortiz saw Dr. Young for urinary burning, frequency, and dysuria—not an annual follow-up. Other evidence demonstrated that Dr. Young specifically requested that Ortiz's private insurance be billed for those appointments because there was not workers’ compensation authorization. Not only did the evidence fail to establish even a prima facie avoidance of the employer's limitation defense, but it also significantly undercut that avoidance by supporting the opposite proposition: that the care and treatment by Dr. Young in August 2019 did not relate to Ortiz's compensable injury and, consequently, were not "furnished" by the employer. The employer's evidence put zeroes on the master limitation timer. Ortiz failed to present any evidence of facts that could have supported putting time back on. Under the law as we have explained it, there was ample support in the record for the JCC's conclusion that the PFB was barred.
III
We review the JCC's factual findings for competent evidence, and his legal conclusions de novo. See Borneisen v. Home Depot , 917 So. 2d 361, 362 (Fla. 1st DCA 2005) ; McBride v. Pratt & Whitney , 909 So. 2d 386, 387 (Fla. 1st DCA 2005). Based on the foregoing legal analysis and assessment of the evidence presented before the JCC, we can find no legal basis for setting aside the JCC's final compensation order dismissing the August 26, 2020, PFB.
AFFIRMED .
Roberts, J., concurs; Bilbrey, J., concurs in result with an opinion.
Judge Bilbrey substituted for Judge Makar, who was recommissioned as a judge of the Fifth District Court of Appeal. Judge Bilbrey has viewed the digital recording of oral argument.
Bilbrey, J., concurring in result.
Since the judge of compensation claims correctly found that Claimant had not met her burden to show that the statute of limitations was tolled, we are correct to affirm. See § 440.19(2), Fla. Stat. (2003) ; Palmer v. McKesson Corp. , 7 So. 3d 561, 563–64 (Fla. 1st DCA 2009) (holding that after an employer has carried its burden to prove that the statute of limitations has run, the burden then shifts to the claimant to prove tolling of the statute).