This February 2, 2012 1DCA decision reversed Judge Kuker. The claimant appealed Judge Kuker’s Order denying benefits on the ground the statute of limitations had run.
The facts were undisputed and were pretty straight forward. The claimant filed a petition for benefits on March 30, 2009 requesting an appointment with an orthopedist and attorney fees and costs. The Employer/Carrier had set the appointment but since the claimant did not bring her films, the doctor send her away. The doctor opined in deposition that given the claimant's failure to bring her films, he treated it as a no show.
On July 22, 2009, both parties requested that the July 23, 2009 mediation be cancelled. A letter was sent to the mediator indicating that the issues had been resolved and that there were no other outstanding issues besides attorney fees and costs. The letter went on to read that the JCC retained jurisdiction over the fees and costs.
On March 3, 2010, the claimant filed another petition requesting an alternate orthopedist or a follow up visit with Dr. Hyde and attorney fees and costs. The Employer/Carrier responded that the the entire claim was barred by the Statute of Limitations.
The JCC agreed that the statute of limitations had run because the 2009 petition was no longer pending because of the letter that was sent to the mediator indicating a resolution of the issues. The JCC opined that the letter operated as a voluntary dismissal of the 2009 petition.
The 1DCA did not see the case the way that Judge Kuker did. The 1DCA opined that the March 3, 2010 was not barred by the statute of limitations because “the parties had not settled the active claims for entitlement to attorney’s fees and costs brought by the 2009 petition.
The 1DCA opined that since the fee issue was not resolved, the 2009 petition was really still pending. The Employer/Carrier argued that there was no deadline for a claimant to pursue his or her fees. However, the 1DCA did not buy that argument.
This is a case that can very easily cause headaches for employer/carriers. It may bring back some old cases that are better left where they are. The distinguishable part in this case is that in Longley, there was a mutual agreement between the parties that the attorney fee issue remained open. It appears that the claimant and the employer/carrier agreed on the letter that was sent to the mediator.
In this new world of attorney fees, a lot of petitions are finalized that way. It is the recommendation of the author that any open fee issues be addressed sooner rather than later. Filing a motion to force the claimant to address fee entitlement may be needed. The question becomes, if a judge will not entertain a fee motion until 1 year or so after the last payment of indemnity and/or a medical appointment, will there be a three year statute of limitations period or even longer? I believe this is a bad decision that just does not work in the current workers' compensation system The Employer/Carrier can not stop the claimant from doing dismissing his petition and reserving on fees, but yet, the employer/carrier can be held responsible for continuing treatment post SOL. This is just another case in a long string of cases that is slowly deteriorating the statute of limitations defense.
Click here to see the 1DCA opinion
The facts were undisputed and were pretty straight forward. The claimant filed a petition for benefits on March 30, 2009 requesting an appointment with an orthopedist and attorney fees and costs. The Employer/Carrier had set the appointment but since the claimant did not bring her films, the doctor send her away. The doctor opined in deposition that given the claimant's failure to bring her films, he treated it as a no show.
On July 22, 2009, both parties requested that the July 23, 2009 mediation be cancelled. A letter was sent to the mediator indicating that the issues had been resolved and that there were no other outstanding issues besides attorney fees and costs. The letter went on to read that the JCC retained jurisdiction over the fees and costs.
On March 3, 2010, the claimant filed another petition requesting an alternate orthopedist or a follow up visit with Dr. Hyde and attorney fees and costs. The Employer/Carrier responded that the the entire claim was barred by the Statute of Limitations.
The JCC agreed that the statute of limitations had run because the 2009 petition was no longer pending because of the letter that was sent to the mediator indicating a resolution of the issues. The JCC opined that the letter operated as a voluntary dismissal of the 2009 petition.
The 1DCA did not see the case the way that Judge Kuker did. The 1DCA opined that the March 3, 2010 was not barred by the statute of limitations because “the parties had not settled the active claims for entitlement to attorney’s fees and costs brought by the 2009 petition.
The 1DCA opined that since the fee issue was not resolved, the 2009 petition was really still pending. The Employer/Carrier argued that there was no deadline for a claimant to pursue his or her fees. However, the 1DCA did not buy that argument.
This is a case that can very easily cause headaches for employer/carriers. It may bring back some old cases that are better left where they are. The distinguishable part in this case is that in Longley, there was a mutual agreement between the parties that the attorney fee issue remained open. It appears that the claimant and the employer/carrier agreed on the letter that was sent to the mediator.
In this new world of attorney fees, a lot of petitions are finalized that way. It is the recommendation of the author that any open fee issues be addressed sooner rather than later. Filing a motion to force the claimant to address fee entitlement may be needed. The question becomes, if a judge will not entertain a fee motion until 1 year or so after the last payment of indemnity and/or a medical appointment, will there be a three year statute of limitations period or even longer? I believe this is a bad decision that just does not work in the current workers' compensation system The Employer/Carrier can not stop the claimant from doing dismissing his petition and reserving on fees, but yet, the employer/carrier can be held responsible for continuing treatment post SOL. This is just another case in a long string of cases that is slowly deteriorating the statute of limitations defense.
Click here to see the 1DCA opinion
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