final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from an order of the Judge of Compensation Claims.
Daniel A. Lewis, Judge. Date of Accident: August 21, 2014.
A. Touby and Richard A. Sicking of Touby, Chait &
Sicking, P.L., Coral Gables, for Appellant.
William H. Rogner and Andrew R. Borah of Hurley, Rogner,
Miller, Cox & Waranch, P.A., Winter Park., for Appellees.
workers' compensation case, Claimant appeals an order of
the Judge of Compensation Claims ("JCC"), holding
the Employer/Carrier ("E/C") was not estopped from
asserting the statute of limitations ("SOL")
defense. Claimant concedes that the limitations period had
run but challenges the estoppel ruling, arguing that it
thwarts the presuit resolution process set forth in section
440.192(4), Florida Statutes. We affirm because, in this
case, the presuit resolution argument is both unpreserved and
August 30, 2017, Claimant's counsel transmitted by
facsimile ("fax") a letter to the E/C informally
requesting two benefits: authorization of a replacement
neurologist due to Dr. Ballweg's death and authorization
of an orthopedist as a one-time change of authorized treating
physician pursuant to section 440.13(2)(f), Florida Statutes.
The next day, Claimant filed a Petition for Benefits
("PFB") seeking those benefits together with
associated attorney fees and costs. On September 1, 2017,
counsel for the E/C emailed Claimant's counsel the
Hey Mark, my client authorizes Dr. Christopher Brown as the
claimant's alternate orthopedist in light of your one
time change request in the attached. FYI, Christina Rodriguez
is the new adjuster handling this claim. She will provide the
claimant with an appointment to see Dr. Brown shortly.
September 6, 2017, the E/C filed a Response to PFB denying
all benefits on grounds that the SOL had run.
hearing, Claimant argued that the E/C's September 1 email
was the initial response to the PFB, and therefore, because
the SOL defense was not asserted, the E/C was estopped from
asserting the defense. Alternatively, the Claimant asserted
that the E/C's promise in the email to provide an
alternate doctor revived the SOL. The E/C countered that its
September 1 email was not the initial response to the PFB
because the email expressly responded only to the attachment,
which was the August 30 fax from Claimant requesting two
doctors; the E/C's initial response to the PFB was the
formal Response to PFB which addressed all claims raised in
final order, the JCC denied the PFB, finding all claims
barred by the SOL. In support, the JCC found that the
E/C's September 1 email was a response only to the August
30 fax, and the September 6 filing of the E/C was the
"initial response" to the PFB. The JCC also
reasoned that the claim was not "revived" by the
E/C's email agreeing to authorize the one-time change
because such revival occurs only when the E/C actually
provides benefits or at least "accepts
responsibility" for medical treatment by paying the
on the SOL are reviewed for competent, substantial evidence
(CSE) as to the JCC's findings of fact and de
novo as to the JCC's legal conclusions. See
Borneisen v. Home Depot, 917 So.2d 361, 362 (Fla. 1st
DCA 2005) (noting that JCC's factual findings relating to
application of SOL are reviewed for CSE); McBride v.
Pratt & Whitney, 909 So.2d 386, 387 ...