This is a doozy.  For as favorable as the First DCA has been towards E/C’s and the Statute of Limitations, this ruling is as unfavorable.  While I agree with the premise of having the Workers’ Compensation system be a “self-executing” one (that is, the E/C has the burden to provide benefits to Claimants), I disagree applying the reasoning to this specific fact pattern.

Anyway, shall we analyze Gauthier v Florida International University?

In Gauthier, Claimant was injured in a compensable accident.  She treated for more than two years until her physicians told her to just follow up annually.   However, she made her follow up appointment 14 months after her last visit.   This would put her past the Statute of Limitations, under section 440.19, at 2 years post accident and 1 year past the last date the E/C provided benefits.

During that year, the E/C made several attempts to obtain Claimant’s MMI date and permanent impairment rating (PIR) from the authorized doctors.   To no avail, the nurse case manager (hired by the E/C) even tried to get the doctors to complete a simple DWC-25 form, to “check the box” about MMI and PIR.   Still no response from the doctors.

When Claimant attempted to attend her follow up appointment, more than one year after the last appointment, the E/C naturally denied the claim on the Statute of Limitations defense.  At trial, the Claimant argued the E/C was estopped from raising this defense because the E/C made little or no efforts to get the DWC-25 form completed by her doctors.  By failing to get information on MMI and PIR, the E/C avoided having to pay impairment income benefits which would have tolled the Statute of Limitations.  This estopped the E/C from claiming the Statute of Limitations as a defense.

The JCC ruled in favor of the E/C finding they did nothing to “impede or mislead” Claimant regarding her obligation to continue timely treatments with her doctors.  The First DCA disagreed and reversed. 

The Court’s rationale?  The Florida Workers’ Compensation system is self-executing, whereby the E/C is responsible for the day-to-day distribution of benefits, not Claimant.  The E/C has a responsibility to pay impairment benefits 14 days after obtaining the MMI date.   According to the Court’s interpretation of s. 440.15(3)(d), the E/C has the option of obtaining MMI and PIR from a doctor other than the authorized physician.  Also, the administrative code requires insurerers to notify doctors of any forms they must complete.  

Finally, because the E/C has a right to choose the authorized doctors, they have the responsibility to obtain MMI and PIR from those doctors.  Since Claimant was unaware of the entitlement to impairment benefits, she lost the opportunity to toll the Statute of Limitations.

As I wrote above, I disagree with this.  Let me breakdown why:

1) While chapter 440 is a self-executing statute where the E/C bears the responsibility to provide the benefits for Claimants, the one part that is the exception to the rule is the Statute of Limitations.  Based on the statute and the First DCA’s previous rulings, it is the only affirmative responsiblity a Claimant has to insure continued delivery of benefits.  While estoppel is one reason to deny the Statute defense, there has to be an action by the E/C to prevent Claimant from performing her one affirmative responsibility.  Usually, estoppel is found where the E/C  does not inform Claimant that she must see a doctor at least once a year or file a Petition within the first two years of the claim.

2) To deny the Statute defense based on estoppel is to say the E/C knew about that impairment benefits were due or should’ve been due.  None of the facts in this decision indicate that the E/C knew of Claimant’s PIR.  In fact, they tried on several occasions to get this information from the doctors, to no avail.  Estoppel is an action by one party which forces another party to detrimentally rely upon.  In this case, there is no action.  There is, at worse, an inaction by the E/C here.   But how could the E/C know that Claimant was even at MMI and entitled to impairment benefits?  The doctors never responded and it is likely that they did not view Claimant at MMI yet.   The facts bear out that the doctors deemed Claimant MMI during depositions, after the Statute defense was raised.  The doctors likely viewed Claimant at MMI because so much time had passed since her last appointment.

3) Section 440.15(3)(d) does say a doctor other than the “employee’s treating doctor” can certify Claimant as MMI and must be certified to the treating doctor within 10 days after the evaluation by this “other doctor.”    First, I agree the statute says this.  But, once again how can the E/C in this case even know that Claimant is at MMI when the doctors won’t respond to the E/C’s inquiries?   The statute requires the E/C to self-execute the system, not be mind readers.

Second, the First DCA is saying that the E/C should’ve found another doctor, forced Claimant to attend a medical evaluation, just to determine MMI and PIR.  This sounds awfully like an IME.  Is the First DCA saying that the E/C can get a separate IME just for MMI?  What if there is no litigation pending?  Is the First DCA saying that at anytime an E/C can compel a Claimant to be evaluated by another doctor just because the authorized treater won’t put Claimant at MMI?  This reasoning is the most absurd of them all. 

The bottomline is that the reasoning is in Gauthier is good, but its the facts that don’t match up.  If the E/C knew about impairment benefits and did nothing, then we would have estoppel.  Punishing the E/C for what they should’ve known is entering into the bad faith arena and the Legislature voided that doctrine back in 1994. 

The lesson here to E/C’s: get MMI as soon as possible.  If 3 to 6 months pass since a Claimant’s last appointment and you do not have an MMI date, make sure you get one before you count on the Statute of Limitations defense.  In fact, if you have not paid out impariment benefits and more than a year passed since the last date of benefits, you can no longer assume you have a Statute defense.  Make sure that Claimant exhausted all of her entitled benefits before you start counting on the clock.   

Them’s the breaks.