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Schiano v. City of Hollywood Police Department/Employer's Mutual, Inc.

Florida Court of Appeals, First District

August 21, 2019

Robert Schiano, Appellant,
v.
City of Hollywood Police Department/Employer's Mutual, Inc., Appellees.

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

          On appeal from an order of the Judge of Compensation Claims. Daniel A. Lewis, Judge. Date of Accident: August 21, 2014.

          Mark 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.

          M.K. Thomas, J.

         In this 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 without merit.

         I. Facts

         On 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 following message:

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.

         On September 6, 2017, the E/C filed a Response to PFB denying all benefits on grounds that the SOL had run.

         At 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 the PFB.

         In the 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 bill.

         II. Legal Analysis

         Rulings 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 ...


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