One of the most formulaic but deceptively “easy” parts in Workers’ Compensation law is the statute of limitations provision, section 440.19. The statute of limitations is a provision that terminates an employee’s right to claim benefits or sue for compensation and damages unless the person meets certain conditions. In essence, an employee must file a lawsuit (or Petition for Benefits) before the time expires or their right to claim benefits ends forever. It is designed to give employers a reasonable time expectation as to how long an employee is entitled to receive benefits. No employer likes waiting forever to see if a claim is still open. However, the exceptions to this provision are based on an employee’s knowledge of his obligation under the provision. The best advice for an employer is to provide information and documentation to the employee, and I offer a few tips.
The time frames to the statute of limitations are explicit: an employee has two years to file a Petition for Benefits from the date of accident and one year after the last date of received benefits.
TIP 1: Document every date of accident that occurs in your office, no matter how minor the accident or even if the employee denies an injury took place. This establishes a clear record of when the date of accident is and when the two year clock begins. Also, note in your accident report that medical treatment was offered and if the offer was accepted or declined by the employee. This will document an injury in situations when a medical record is not generated.
The second clock begins one year after the last date the injured worker receives benefits, either medical or wages. More likely than not, the last date of benefits is medical in nature. Many injured workers will have to keep their claim alive by seeing a doctor once a year. If they do not, and fail to file a Petition for Benefits within a year of the last date of treatment, then the claim “expires.” An exception to this part of the provision is if the employer or their carrier failed to inform the employee of their rights, even if unintentionally. Therefore, a common excuse for an employee who lets her claim expire is that she didn’t know she had to see a doctor once a year.
The burden then shifts to the employer to show otherwise. Most carriers have a system in place where they forward a pamphlet created by the Florida Department of Financial Services explaining the statue of limitations. But, this procedure is so perfunctory, and often computer generated that is difficult to locate a “live” person who can testify to sending the pamphlet to the employee. An employer should take the initiative to informing all employees in advance.
TIP 2: As an employer, insure that your employees have this pamphlet in their hands immediately, either when completing the accident report or mailed to their address via certified mail. You can locate a complete pdf file of the pamphlet at the Department’s website here.
One cannot have enough information, particularly when it concerns Workers’ Compensation in the State of Florida. Educating your employees about the statute of limitations will not only protect their rights but protect yourself from protracted and unnecessary litigation.