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Moise v. Disney Pop Century Resort

Florida Court of Appeals, First District

April 30, 2018

Loziane O. Moise, Appellant,
v.
Disney Pop Century Resort, and Walt Disney World Co. Workers' Compensation Department, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          Dates of Accidents: June 9, 2011; January 6, 2013.

          On 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.

          M.K. Thomas, J.

         In this 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

         Florida-Department of Corrections, 987 So.2d 240 (Fla. 1st DCA 2008).

         Facts

         Moise, 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.

         On 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.

         The 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.

         Legal Analysis

         As to 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 ...


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