If you're reading this blog, you almost certainly are aware that F.S. 440.19 provides for a two year period from the date of accident to file a PFB, and beyond that, a one year period for medical or indemnity benefits, and if either such period lapses, then the statute of limitations (SOL) potentially becomes a viable defense, subject to other conditions which have evolved through interpretation of the statute and caselaw. A key provision of this same section of the statute is that "“the failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits.” (Emphasis added.)
Well, for years many, most, if not all practitioners and adjusters operated under the premise that responding to the first PFB asserting the SOL defense would satisfy this statutory requirement. Well, the First DCA in Childers v. Clay County Bd of County Commissioners/Scibal Associates made it clear today that you need to respond to each and every Petition for Benefits filed during a period when the statute of limitations is being asserted, by specifically noting that the claim is barred by the SOL. This is a seemingly benign, small case which could have a big impact if you are caught being unfamiliar with this new twist on the law. I expect any and all cases out there with a pending SOL defense to see a wave of PFB's being filed in hopes of obtaining this kind of waiver of the defense. As always, if you have any questions about this case, or any area of the law, don't hesitate to contact one of our attorneys for assistance.