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A recent decision and concurring opinion by a Florida appeals court may have upset years of practice and could raise costs for workers’ compensation insurers. Some claims that carriers were once ready to close out of due to the statute of limitations may now have to be reconsidered.

“I would say this is very detrimental for employers and carriers,” said Jerry McKim, a workers’ comp defense lawyer in West Palm Beach.

To complicate matters, the by Florida’s 1^st District Court of Appeals overturned the court’s own 2023 ruling in the case. And a key assertion by one of the judges is not exactly binding and will likely require yet another appellate ruling before the two-year statute-of-limitations and its one-year tolling provision question is fully settled.

“The 1^st DCA threw a monkey wrench into things with the first Oritz opinion, and now the new one doesn’t fully settle it,” said Joe Bilotta, a south Florida claimants’ lawyer.

Bilotta has a similar case that he has appealed to the 1^st DCA, which could ultimately nail down when the benefits window closes for injured workers and how long it should be propped open for further medical care.

The 1^st DCA’s opinion did seem to make one thing clear: When a doctor mistakenly bills an injured worker’s group health plan for more than a year, that does not automatically mean a carrier – or a judge – can decide that the statute of limitations has run out on the claim.

The case began more than 20 years ago. Annalie Ortiz was working at a Naples Winn-Dixie grocery, where she fell. The box she was carrying hit her side with such force that she later had to have a kidney removed.

Winn-Dixie and its comp insurer, Travelers Å˽ðÁ«´«Ã½Ó³»­, agreed to the compensability of the injury and authorized long-term medical care for the woman. For years after the injury, Ortiz received regular follow-up care, including treatment for urinary tract infections that she believed were related to the loss of her kidney.

Then, in 2019, the authorized physician sent three medical bills to Ortiz’ group health insurance plan. Ortiz testified that the doctor’s office said that it had not received authorization for those visits from the workers’ comp insurer, so had decided to bill the group insurer.

A year or so later, a Sedgwick Claims Management adjuster noticed that Sedgwick had not received a bill from Ortiz’ doctor for more than a year. When the physician’s office began billing Sedgwick again, in 2020, Sedgwick filed a denial of benefits, on the grounds that the two-year statute of limitations had expired in the aging case and the tolling period had ended.

Ortiz filed a petition for benefits, asking the state Court of Compensation Claims to settle the dispute.

A compensation court judge sided with Sedgwick and held that Ortiz was partly to blame for the misdirected medical bills. The injured worker was aware that the invoices had gone to her group health plan and she had not thoroughly questioned the change in procedure, compensation claims Judge Frank Clark noted at the time.

Ortiz appealed and the 1^st District Court of Appeals, the court that handles workers’ comp appeals, in 2023 initially upheld the administrative law judge, setting a guidepost for lawyers, insurers and claims firms to look to on the statute of limitations, attorneys said.

But on a request for rehearing by Ortiz’ attorneys, the appellate judges saw things very differently.

The December court found that Clark had misinterpreted the statute.

“Simply put, it was legal error for the JCC to conclude the three contested visits did not constitute the furnishment of care that tolled the statute regarding Ortiz’s kidney injury,” the appeals court concluded.

Even though the doctor had sent bills to group instead of the comp insurer, the treatment was identical to care that Sedgwick had already authorized, the court said. Ortiz’ follow-up care had never been deauthorized. The employer had not shown a “break in causation,” the opinion explained.

“…The fact that Dr. Young suddenly stopped billing Sedgwick—without any apparent communication to Ortiz from Sedgwick about deauthorization—cannot support the JCC’s looking past that failure and dismissing the PFB (petition for benefits) as time-barred anyway,” the appellate judges said.

Further, the court underscored previous court rulings, which held that it is the furnishing of the treatment, not the billing, that tolls the statute.

It was the last 11 pages of the opinion, though, that really caught the eye of workers’ comp stakeholders around the state. Appeals Court Judge Adam Tannenbaum, in a concurring opinion, argued that comp judges, insurers, claims handlers and some defense attorneys have for years been misinterpreting the limitations statute and its tolling provision.

Florida workers’ compensation law allows a two-year statute of limitations on compensation claims. That means a claimant has two years from the time of the injury or knowledge of the injury to file a petition for benefits. But the law also allows the SOL to be paused (tolled) for one year after the last medical treatment.

“My hope is that, going forward, practitioners and JCCs (judges of compensation claims) will feel empowered by the Supreme Court decisions I have discussed to continue with their approach of analyzing tolling the way it plainly is meant to be; and was meant to be, starting in 1994: as a suspension of the limitation period—requiring an assessment of the stops and starts impelled by the provision of benefits—before making the final determination of whether the statutorily established two-year limitation period has run, rather than just the one-year tolling period,” Tannenbaum wrote.

He noted that the way the law should be read is that each time a tolling period starts, the statutory limitation clock stops until the tolling period expires and then begins to run again, the judge wrote. He argued that in the Ortiz case, the SOL would not have even started until January 2019, when the misdirected billing to the health insurer began.

To determine if a petition for benefits is time-barred, an administrative law judge can figure out the date when the statutory limitation period expires by adding days remaining in the original two-year limitations period (at the time the last tolling period began) to the date when the limitations period (last) began to run again, Tannenbaum explained.

He noted that at least twice in the last 25 years, the 1^st District Court has gotten it wrong by referring to a tolling period as an extension of the statute of limitations, rather than a pause.

Until Tannebaum’s concurrence, employers/carriers were often able to assume that after two years the statute of limitations had pretty much run its course, McKim said.

“It’s turned it on its head,” McKim said. “This changes everything.”

Fellow appeals court Judge Ross Bilbrey wrote in his own concurrence that he agreed with the majority’s opinion in the second Ortiz case. But he noted that Tannenbaum’s concurring opinion has no precedential value and is not the official opinion of the appeals court. Tannenbaum had addressed larger issues than the court needed to reach to resolve the Ortiz matter.

The Ortiz case involved some of the heavyweights in Florida’s workers’ comp legal field. Attorney William Rogner, on the insurance defense side; and Richard Sicking, now retired, and Mark Touby on the claimant’s side. They could not be reached for comment but another insurance defense lawyer, George Kagan, said that other cases, based on that original Oritiz interpretation, may now be thrown into question.

“Such JCC holdings … are now unsupported and must be re-determined based on conventional, pre-Ortiz ‘two years/one year’ SOL law,” Kagan noted in a blog post.

McKim, the West Palm defense attorney, who was not involved in Ortiz, agreed. He said he’s already had questions from three employer/carrier clients about the impact of the decision.

“Before, with the first Ortiz opinion, I would have said that the statute of limitations had expired,” McKim said Wednesday. “But now I have to say, ‘No, they’re still active cases. They can’t be shut down.'”

At least one compensation court judge has signaled he’s sticking with the direction offered by the first Ortiz decision. On Dec. 26, three days after the second Ortiz opinion, compensation Judge Gregory Johnsen explained that because Ortiz 2 had officially withdrawn Ortiz 1, and Tannenbaum’s concurring thoughts are not binding, he had to rely on other case law laid down by the appeals court in recent years. Based on that, Johnsen denied benefits for a worker who had tripped on a broken wheelchair ramp.

That is Bilotta’s case, known as Estes vs. Palm Beach County School District and Davies Claims. Bilotta filed an appeal this week. It’s likely that the appeal will put an official stamp on Tannenbaum’s unofficial interpretation of the statute of limitations, McKim said.

Such a decision from the 1^st District Court may not come for several months.

Topics Carriers Florida Claims Workers' Compensation