07-3140 JOSE BATISTA, v. PUBLIX SUPERMARKETS, INC and SPECIALITY RISK SERVICES, INC.

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Laws-info.com » Cases » Florida » Florida First District Court » 2008 » 07-3140 JOSE BATISTA, v. PUBLIX SUPERMARKETS, INC and SPECIALITY RISK SERVICES, INC.

State: Florida

Court: Florida First District Court

Docket No: 07-3140

Case Date: 10/22/2008

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA JOSE BATISTA, Appellant, v. PUBLIX SUPERMARKETS, INC. and SPECIALTY RISK SERVICES, INC, Appellee. ______________________________/ Opinion filed October 22, 2008. An appeal from an order of the Judge of Compensation Claims. Henry H. Harnage, Judge. Date of Accident: February 18, 1986. William F. Souza of William F. Souza, P.A., North Miami Beach, for Appellant. Mal Steinberg, of Law Offices of Steinberg & Brown, Fort Lauderdale, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D07-3140

PER CURIAM. Claimant challenges the Judge of Compensation Claims' (JCC) order on two grounds: (1) whether the JCC erred by determining the Employer/Carrier (E/C) did not waive its statute of limitations defense by failing to assert it at the first hearing on

the claim; and (2) whether the JCC lacked jurisdiction to vacate his final compensation order. We reverse as to the first issue and affirm as to the second, for the reasons below. Background The parties entered into a settlement agreement for the indemnity portion of Claimant's claim for benefits on July 20, 1990, but the E/C remained liable for future medical care. The E/C's last recorded payment for Claimant's medical expenses was May 5, 1990. On September 16, 1996, Claimant filed a petition for benefits (PFB) requesting authorization for orthopedic surgery. Claimant then sent a request to produce, and later filed a motion to compel production. Both the request and motion were accompanied by certificates of service which listed the Carrier's adjuster as the receiving party. Thereafter, a hearing on the motion was set for March 2, 1997, and notice of hearing was sent to the Carrier's adjuster and the Employer on January 18, 1997. The hearing resulted in an order to compel production in which JCC Johnson indicated that neither the Employer nor Carrier attended the hearing, that attempts were made during the hearing to contact the Carrier via telephone without success, and that the notice of hearing had been sent by certified mail. JCC Johnson's order was also accompanied 2

by a certificate of service which listed the Carrier and Employer as receiving parties. More than 10 years after the original PFB was filed, this matter was heard on February 14, 2007, before JCC Harnage. Although both parties argued at final hearing that record activity occurred in this case at least once a year, no such record evidence was produced. The parties stipulated before the hearing that the issues to be decided were whether the E/C waived any statute of limitations defense by failing to assert it at the hearing on Claimant's motion to compel and, if the defense was not waived, whether the statute of limitations had been tolled. JCC Harnage orally ruled at the final hearing that the E/C did not waive the statute of limitations defense because the hearing on Claimant's motion to compel had been inadequately noticed, but that the statute of limitations was tolled by the E/C's failure to inform Claimant of the statute of limitations. The E/C filed a motion for reconsideration on February 26, 2007. On March 12, 2007, JCC Harnage entered a Final Order confirming his oral rulings. However, after entering the Final Order, JCC Harnage held a rehearing based on the E/C's motion for reconsideration, which JCC Harnage acknowledged he did not receive until after his Final Order was signed due to errors in his office. JCC Harnage vacated his Final Order on March 20, 2007, and entered a Supplemental Final Order on May 16, 2007. In the Supplemental Final Order, JCC Harnage found there was inadequate 3

notice of the hearing on the motion to compel because the notice of hearing did not have a certificate of service, Claimant used a different address for the employer than the one used in the 1986 settlement agreement, and Claimant did not provide notice to the E/C's attorney of record listed on the 1986 settlement agreement. JCC Harnage further found the statute of limitations was not tolled because Claimant had actual knowledge of his workers' compensation rights. Notice A JCC's finding regarding notice is reviewed for competent, substantial evidence. See City of Hollywood v. Pisseri, 504 So. 2d 1262, 1264 (Fla. 1st DCA 1986). The statute of limitations is a substantive right, which is determined by the law in effect the year the claimant was injured. See McLean v. Mundy, 81 So. 2d 501, 503 (Fla. 1955). See e.g., Solar Pane Insulating Glass, Inc. v. Hanssen, 727 So. 2d 961, 963 (Fla. 1st DCA 1998) (applying the 1985 version of the workers' compensation statute of limitations where a claimant was injured in 1985). Under the statutory provision in effect the year Claimant was injured, a petition for benefits is timely if filed within two years after the date of the last payment of compensation.

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