Loziane O. Moise, Appellant,
Disney Pop Century Resort, and Walt Disney World Co. Workers' Compensation Department, Appellees.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
of Accidents: June 9, 2011; January 6, 2013.
appeal from an order of the Judge of Compensation Claims.
Thomas W. Sculco, Judge.
Nicolette E. Tsambis of Smith, Feddeler, Smith, P.A.,
Lakeland, for Appellant.
William H. Rogner of Hurley, Rogner, Miller, Cox, &
Waranch, P.A., Winter Park, for Appellees.
workers' compensation case, we address the interplay
between section 440.25(4)(i), Florida Statutes (2011),
permitting motions to dismiss for lack of prosecution, and
section 440.19, Florida Statutes (2011), the statute of
limitations ("SOL") provision. Appellant
("Moise") appeals a final order dismissing her
Petitions for Benefits ("PFBs") as untimely and,
therefore, barred by the SOL. Although we affirm the ultimate
disposition reached by the Judge of Compensation Claims
("JCC"), we write to clarify application of this
Court's previous decision in Akers v. State of
of Corrections, 987 So.2d 240 (Fla. 1st DCA 2008).
a housekeeper employed by Appellee ("Disney"),
suffered injuries as a result of two compensable accidents at
work: the first occurring on June 9, 2011, and the second on
January 6, 2013. Multiple PFBs were filed on her behalf in
2013 and 2014, asserting both dates of accident and claiming
entitlement to various benefits. At mediations in 2013 and
2015, the claims raised by the PFBs were resolved with the
exception of attorney's fees and costs. The parties
specifically reserved jurisdiction on those claims, which
remained pending. The last provision of benefits to Moise for
the 2011 date of accident was on April 14, 2014, while the
last provision of benefits for the 2013 injury was on
November 22, 2013.
August 19, 2016, Disney filed a motion to dismiss the 2013
and 2014 petitions in accordance with section 440.25(4)(i),
asserting a lack of prosecution. On September 1, 2016, after
the filing of the motion and before a hearing, Moise filed
two additional PFBs (covering both dates of accident) seeking
additional medical benefits and attorney's fees and
costs. In response, Disney filed notices of denial raising
SOL defenses pursuant to section 440.19 as to both dates of
accident and denying entitlement to all further benefits. A
hearing on Disney's motion to dismiss resulted in a
dismissal of all pending claims raised by the 2013 and 2014
PFBs. In the order, the JCC specifically found inadequate
record activity and no "good cause" shown for
Moise's failure to prosecute the claims. Moise did not
appeal the order granting Disney's motion to dismiss.
PFBs filed by Moise in 2016 were consolidated and the issues
bifurcated to litigate, initially, the viability of
Disney's SOL defenses. Following the merits hearing, the
JCC ultimately dismissed the 2016 PFBs as untimely, relying
solely on Akers.
the JCC's determination that the filing of the 2016
PFB's did not toll the SOL, we review this legal
conclusion de novo. McBride v. Pratt &
Whitney, 909 So.2d 386, 387 (Fla. 1st DCA 2005). In
support of his ruling, the JCC cited to Akers which
involves similar facts to the instant case. In
Akers, the claimant filed a PFB shortly after the
E/C moved to dismiss two prior PFBs for failure of claimant
to prosecute. 987 So.2d at 241. The JCC ultimately entered an
order granting the motion to dismiss regarding the
previously-filed PFBs. Id. The JCC then dismissed
the PFB (filed after the E/C's motion to dismiss) as
untimely and barred by the SOL. Id. It was noted in
Akers that claimant stipulated the latter PFB was
filed "solely in an effort to avoid an application of
the statute of limitations." Id. However, this
Court's affirmance ...