Opinion
No. BL-485.
May 21, 1987.
Petition for review from the Chief Commissioner Thomas Carroll.
John F. McMath, Miami, for appellants.
Edwin H. Underwood, of Underwood, Gillis, Karcher Valle, Miami, for appellees.
Employer/carrier seek review of a workers' compensation order by which claimant was awarded payment of transportation costs for medical treatment. We find that this award merely effectuated the terms of a prior order, and is not precluded by the statute of limitations. We therefore affirm.
Claimant was awarded compensation benefits in 1982 by an order which also found entitlement to past due "medical transportation" upon the submission of "proper itemization." In 1985 claimant sought further compensation benefits, and also requested payment of prior costs for transportation to medical treatment, itemized in accordance with the 1982 order. Employer/carrier declined to pay further compensation or prior transportation costs, asserting the statute of limitations as a defense. Only the previously incurred transportation costs for which liability was adjudicated in 1982, and the fee consequent thereto, are involved in this appeal.
The applicable statute of limitations, section 440.19(2)(b), Florida Statutes (1981), provided that:
. . . all rights for remedial attention under this section pursuant to the terms of an award shall be barred unless a further claim therefor is filed with the Division within two years after the entry of such award, except that, if payment of compensation has been made or remedial attention has been furnished by the employer under the terms of the award, a further claim may be filed within two years after the date of the last payment of compensation or within two years after the date of the last remedial attention furnished by the employer. . . .
In Westinghouse Electric Corporation v. Dale, 439 So.2d 989 (Fla. 1st DCA 1983), this enactment was applied to bar a further claim for payment of medical bills addressed in a prior order. That opinion, however, related to an order based on a 1983 hearing on new benefits, at which claimant orally sought readjudication of liability for the 1976 medical costs in question which "at that time had not been, nor have they yet been, according to the record, submitted . . . for payment or reimbursement." 439 So.2d 990. The final conclusion was that "the claim for past medical is barred." That conclusion by this court can clearly rest on grounds other than the statutory defense, i.e., total absence of the required bills in evidence, the interim acceptance of other benefits paid in satisfaction of the award absent itemization for some five to seven years, and lack of timely or written notice of the matter to be heard. We find, accordingly, that the decision does not preclude our view of section 440.13(3)(b), supra, as relating to "further" claims, i.e., new and not previously adjudicated claims. The statutory reference is to rights " pursuant to the terms of an award" (e.s.), and not to rights "established by an award" as paraphrased in Westinghouse. Simple logic would dictate a definition of "pursuant to" as simply following an award, so as to bar new claims and not those already adjudicated or specifically established by an award.
While the two year limitations period of section 440.19(2)(b), Florida Statutes (1981), is therefore properly applied to further claims for remedial attention, in the present case the order involves no additional remedial care or costs. Instead, the payment directed is merely an expense incidental to remedial care furnished prior to the 1982 order, and is in accordance with that order. In these circumstances a further claim should not be required and section 440.19(2)(b), Florida Statutes (1981), does not allow employer/carrier to escape its obligation to comply with the terms of the prior order.
The order appealed is affirmed.
MILLS, J., concurs.
BOOTH, C.J., dissents with written opinion.
I respectfully dissent and would hold that the deputy erred in declining to apply the statute of limitations as a bar to the claim for transportation expenses. Although the case of Westinghouse Electric Corporation v. Dale, 439 So.2d 989 (Fla. 1st DCA 1983), can be technically distinguished on the grounds that in Dale the medical bills were not actually submitted and the claim for the 1976 medical costs (awarded in 1978) was made orally at the 1983 hearing, that decision should control here. In both this case and in Dale, the order directed the employer/carrier to pay unpaid medical bills through a date certain, but the bills were not submitted for payment within the two-year statute of limitations. After the statute had run, in Dale, the claimant filed a new claim for permanent total disability and at the hearing orally requested payment for the past medical bills but again failed to submit the bills. In the instant case, a claim for further medical attention, temporary total disability benefits, and transportation costs was filed after the statute had run. Again, claimant failed to submit the bills for medical transportation costs. This court in Dale held that the claim was barred under Section 440.13(3)(b) [now Section 440.19(2)(b), Florida Statutes (1981)], Florida Statutes, and in so ruling held that "[t]he statute requires the assertion, within two years, of a further claim to enforce a right established by an award." That rule, applied in the instant case, requires a result contrary to that stated by the majority. Although the rationale of the majority, that the belated claim here is merely enforcement of a preexisting right already awarded, is appealing, it does not seem to fit within the actuality of the situation or the holding of Dale. There is the real concern that to allow perpetual enforcement of an open-ended, unspecified award of medical benefits (subject only to proof of laches) will defeat the purpose of the statute of limitations and the need for timely resolution of these disputes.
See General Electric Company v. Shepard, 440 So.2d 462 (Fla. 1st DCA 1983), which holds that "[a]n order which directs the employer and carrier to supply medical care, be it specific or general and continuing, does not toll the two-year statute."