11-5748 MIAMI-DADE COUNTY SCHOOL BOARD and GALLAGHER BASSETT SERVICES, INC., v. DAVID RUSS

State: Florida

Court: Florida First District Court

Docket No: 11-5748

Case Date: 05/29/2012

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA MIAMI-DADE COUNTY SCHOOL BOARD and GALLAGHER BASSETT SERVICES, INC., Appellants, v. DAVID RUSS, Appellee. _____________________________/ Opinion filed May 29, 2012. An appeal from an order of the Judge of Compensation Claims. Charles M. Hill, III, Judge. Date of Accident: November 29, 2006. Luis F. Estrada of Angones, McClure & Garcia, P.A., Miami, for Appellants. David Cohen, Hollywood, and Bill McCabe, Longwood, for Appellee. CASE NO. 1D11-5748 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PER CURIAM. In this workers' compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) rejecting its statute of limitations defense and awarding benefits. For the reasons below, we reverse.

Section 440.19(4), Florida Statutes (2006), provides: Notwithstanding the provisions of this section, the failure to file a petition for benefits within the periods prescribed is not a bar to the employee's claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits. If a claimant contends that an employer or its carrier is estopped from raising a statute of limitations defense and the carrier demonstrates that it has provided notice to the employee in accordance with s. 440.185 and that the employer has posted notice in accordance with s. 440.055, the employee must demonstrate estoppel by clear and convincing evidence. The JCC found the E/C's "initial response" to Claimant's petition for benefits was various documents dated November 9, 2009

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