Back in April, I posted my “Tips on Understanding the Statute of Limitations.”  In it, I mention how important it is for Employers to provide the Florida Department of Financial Services pamphlet (located here) that advises injured workers of their rights and explains the statute of limitations, section 440.19; namely that an injured worker must file a Petition for Benefits within two years after the date of accident and must continue seeing a doctor at least once a year. 

If an Employer does not provide this information, an injured worker can claim ignorance and the statute of limitations will not apply.  Now, the First DCA is confirming what many of us legal types assumed was allowed under the law: an Employer/Carrier can put Claimant’s attorney on the stand to testify that he told his client about the statute of limitations.

In Waffle House v. Scharmen, the Court ruled that an Employer/Carrier can call Claimant’s attorney to the stand to inquire if he advised his client about the statute of limitations.  This tactic does not violate the attorney/client privilege since the testimony merely concerns the “recitation of the statutory language.” 

This puts a Claimant attorney in a very precarious situation.  First, he has to testify essentially against the interests of his own client,.  If he advised the Claimant about the statute of limitations, then he has to explain why he did not file a Petition for Benefits on behalf of his client before the statue was up.  This could deemed as malpractice.   Second, if he didn’t tell his client about the statute of limitations, something every Claimant attorney should tell their client when first retained.   This too could be deemed as malpractice.

So, does this mean that an Employer does not have to inform the injured worker about the statute of limitations, to just rely on the attorney to advise the worker?  I would say no.  There will always be situations where a Claimant’s claim goes beyond the statute of limitations before they retain an attorney.  As stated in my previous post, “educating your employees about the statute of limitations will not only protect their rights but protect yourself from protracted and unnecessary litigation.”