Ortiz v. Winn-Dixie, Inc., Travelers Insurance, and Sedgwick CMS

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2021-0885

_____________________________

ANNALIE ORTIZ,

Appellant,

v.

WINN-DIXIE, INC., TRAVELERS

INSURANCE, and SEDGWICK

CMS,

Appellees.

_____________________________

On appeal from an order of the Office of the Judges of

Compensation Claims.

Frank J. Clark, Judge of Compensation Claims.

Date of Accident: September 28, 2003.

December 23, 2024

ON MOTION FOR REHEARING

TANENBAUM, J.

The court grants the appellant’s motion for rehearing and

substitutes this opinion for the original. We originally affirmed the

final compensation order. Now we set it aside.

* * *

Winn-Dixie, Inc., for years furnished follow-up medical

supervision to Annalie Ortiz under the Florida workers’

compensation statutory regime upon Ortiz’s suffering a

compensable work-related injury; the injury requiring removal of

one of her kidneys; the remedial care that followed having been

provided through an authorized urologist to monitor her resultant

permanent medical condition. 1 Upon noticing that it had not

received a bill from the urologist in over a year, Sedgwick (the

servicing agent) concluded that the tolling of the limitation

period—tolling that would have started from her last visit to the

urologist—had expired, meaning (in Sedgwick’s view) the

limitation period had run for filing a petition for benefits (“PFB”)

regarding care for her injured urinary tract. See § 440.19(1), Fla.

Stat. (barring any PFB that is not “filed within 2 years after the

date on which the employee knew or should have known that the

injury” was caused by the work). Sedgwick eventually notified

Ortiz that it was terminating the authorization of care based on

this statute of limitation.

1 In addition to Winn-Dixie, we have two other appellees:

Travelers Insurance, which served as Winn-Dixie’s carrier to

satisfy its statutory obligation to provide benefits under chapter

440, Florida Statutes; and Sedgwick CMS, which managed the

claim as Travelers’s servicing agent. See § 440.13(2)(a), Fla. Stat.

(“Subject to the limitations specified elsewhere in this chapter, the

employer shall furnish to the employee such medically necessary

remedial treatment, care, and attendance for such period as the

nature of the injury or the process of recovery may require . . . .”);

see also § 440.09(1), Fla. Stat. (requiring the employer to “pay

compensation or furnish benefits” as set out in chapter 440 “if the

employee suffers an accidental compensable injury . . . arising out

of work performed in the course and the scope of employment”);

§ 440.38(1), Fla. Stat. (requiring the employer to “secure the

payment of compensation under this chapter”); § 440.41, Fla. Stat.

(providing for the regulation of the discharge by the employer’s

carrier of the employer’s “obligations and duties” regarding the

liability imposed by chapter 440, treating notice to and knowledge

of the employer as notice to and knowledge of the carrier, and

providing that “any compensation order, finding, or decision shall

be binding upon the carrier in the same manner and to the same

extent as upon the employer”).

2

Ortiz challenged this termination of care by filing a PFB.

Rather than question up front whether the previously tolled two-

year limitation period had run at all—let alone whether there was

still time remaining in the limitation period when she filed her

PFB 2—she focused on the position Sedgwick was taking: that more

than a year had passed since the last day it provided her medical

care, in which case the tolling period would have expired and,

according to Sedgwick, the statute of limitation at that moment

would have completely run with it. In opposition to this position,

Ortiz contended she had visited the urologist three more times

following the last visit billed to Sedgwick; and, despite those

subsequent visits having been billed to her private health

insurance, the services provided still fell within the scope of care

that had been authorized—each one restarting the one-year tolling

period, obviating Sedgwick’s basis for terminating the promised

medical care supplied on Winn-Dixie’s behalf. See § 440.19(2), Fla.

Stat. (providing that if the employer’s carrier “furnish[es] . . .

remedial treatment, care, or attendance” upon being notified of the

injury or receiving a PFB, the two-year limitation period is tolled

for a year).

Following a final hearing, the judge of compensation claims

(“JCC”) dismissed the PFB as time-barred. The JCC found that

Winn-Dixie, Travelers, and Sedgwick had “met their prima facie

case to establish the Statute of Limitations defense,” the JCC

basing that determination entirely on the appellees’ statement in

response to the PFB that the “[c]laim is barred by the statute of

limitations,” presumably because it was obvious that more than

two years had passed between when Ortiz suffered her workplace

injury in 2003 and when Ortiz filed her PFB in 2020. It also was

undisputed, though, that Winn-Dixie had provided medical care in

connection with that injury, but the JCC did not assess to what

extent the limitation period had been tolled because of that

provision of care—instead simply assuming that when the tolling

2 In the concurring opinion that follows, the majority author

writes for himself to explain how, in his view, this practice of not

addressing the two-year limitations period overlooks the supreme

court’s clear direction on how to apply “tolling” in any statute-of-

limitation context—including this one.

3

period expired—the limitation period necessarily would have run

to the end along with it, making any PFB on the kidney injury

time-barred. Holding aside the extent to which the original two-

year period might have been tolled—a question we need not reach

for this disposition—Ortiz irrefutably established, through the

medical and billing records, that her three subsequent visits

counted as Winn-Dixie’s provision of care, further extending the

one-year tolling period. Winn-Dixie’s limitation defense having

been conclusively avoided, the JCC failed to draw the correct legal

conclusion from that evidence. The JCC’s dismissal is unsupported

by the record and the law, so we must set it aside.

I

While working at a Naples Winn-Dixie in 2003, Ortiz tripped

and fell, the box she was carrying hitting her right side, causing

internal injury. Emergency medical services treated her on site

and then transported her to the emergency room at a hospital

known at the time as Cleveland Clinic, where she was further

treated. She was sent home but received follow-up care through

doctors at Cleveland Clinic, her injury ultimately requiring the

removal of her right kidney (a procedure known as a nephrectomy)

later that same year. Winn-Dixie did not dispute compensability

for this injury and authorized long-term remedial care in the form

of annual “kidney follow-ups” with a urologist, more frequent visits

being allowed if Ortiz needed them. 3 Cf. § 440.13(2)(a), Fla. Stat.

(requiring an employer to “furnish to the employee such medically

necessary remedial treatment, care, and attendance for such

period as the nature of the injury or the process of recovery may

3 The kidneys, two organs part of the urinary tract, filter the

blood and excrete “end-products of body metabolism in the form of

urine.” W.A. NEWMAN DORLAND, DORLAND’S ILLUSTRATED

MEDICAL DICTIONARY 943, 1860 (29th ed. 2000) (defining “kidney”

and “urinary tract”); cf. id. 1781 (defining “urinary system” in

terms of “the organs concerned in the secretion of urine”). The

workplace injury, then, was to one of Ortiz’s kidneys as part of her

urinary tract or system, the removal of one then leaving the tract

or system in a permanently diminished, but still functional,

condition.

4

require”); Tower Chem. Co. v. Hubbard, 527 So. 2d 886, 889–90

(Fla. 1st DCA 1988) (agreeing that “follow-up visits” to provide

“ongoing medical supervision for a permanent medical condition

caused by [an] industrial accident,” authorized and paid for by the

employer, constituted the provision of “remedial attention” that

restarted the two-year statute of limitation under the pre-1994

version of section 440.19, Florida Statutes); McNeilly v. Farm

Stores, Inc., 553 So. 2d 1279, 1280–81 (Fla. 1st DCA 1989) (noting

that “so long as a doctor is authorized to provide follow-up care,

and visits to the doctor for continuing supervision and evaluation

for possible change in treatment are reasonably necessary from a

medical standpoint, such visits constitute ‘remedial attention’

under the [prior version of the] limitations statute” (citing Tower

Chem. Co., 527 So. 2d at 890)).

It could be inferred from Ortiz’s testimony (and Sedgwick’s

willingness to consistently pay for her medical care with a

urologist over the years) that she was under continuous long-term

medical monitoring with the doctors at Cleveland Clinic until she

switched to Dr. Marvin Young, Ortiz’s authorized provider for this

remedial care starting in 2015. By January 2019, Ortiz had

attended eight appointments with Dr. Young, all paid for by

Sedgwick. The reason for each visit varied slightly, those reasons

including the authorized annual check-ups; but also including

visits as needed to address complaints for her recurrent urinary

tract infections (“UTIs”), dysuria (painful urination), 4 and cystitis

(bladder inflammation). 5 Indeed, the January 2019 appointment

was a follow-up to July 2018 visits that had led to her being

monitored for both the recurrent UTIs and dysuria. She was

asymptomatic by the January 2019 appointment but nevertheless

told by Dr. Young to continue with probiotics. According to the

medical and billing records submitted to the JCC, between 2015

and January 2019, those earlier appointments consistently

included treatment or follow-up for UTIs—or assessment of

symptoms consistent with a UTI.

4See W.A. NEWMAN DORLAND, DORLAND’S ILLUSTRATED

MEDICAL DICTIONARY 560 (29th ed. 2000) (defining “dysuria”).

5 See id. at 449 (defining “cystitis”).

5

When Ortiz visited Dr. Young on August 1, 2019, she again

was complaining of burning urination, expressing concern that a

prior UTI still had not fully resolved (presumably, not having

resolved since her prior appointment, which itself was a follow-up

on her recurrent UTI). Ortiz provided further explanation for this

in her testimony, stating: “I was having a urinary tract infection

that was not getting better, and I thought something was wrong

with [her remaining] kidney.” During this August 1 visit, Dr.

Young told her to continue taking the medication he had

previously prescribed her for UTIs, a problem, according to her

testimony, Ortiz did not have until after the 2003 work accident at

Winn-Dixie. Dr. Young billed this encounter—like he had in the

past for similar complaints going back to 2015 (and paid for by

Sedgwick)—as an office visit and urinalysis, yet he sent the bill

this time to Ortiz’s personal health insurance.

Ortiz’s deposition testimony described her interaction with

the office this way:

Q And why did you use your health insurance?

A Because they told me it has to be submitted to my

health insurance, not to my workman’s comp.

Q Who told you that?

A The front desk. They said the doctor had instructed

that.

Q Did they tell you why other than the doctor instructed

you?

A No, not really. They just said it has to be -- has to go

through private insurance.

Q Was this the first time they ever said that to you?

A Back in 2019, I would say so.

Q Okay. So you said that happened again in March of this

year?

6

A Yes. They billed my private insurance again in March

of this year.

Q And did you ask them at that time, why they were

billing your primary care?

A They said the workman’s comp authorization was not

done . . . by the time.

Like the August 1, 2019, visit, during the next two visits, Ortiz

received an evaluation or treatment from her authorized provider

for a condition or issue for which Sedgwick previously had paid as

part of the care being provided for the lost kidney. On August 12,

2019, she presented with the same complaint, and the encounter

was billed once again as an office visit and urinalysis. Then, on

April 7, 2020, Ortiz returned to discuss the “renal ultrasound and

basic metabolic panel” that had been ordered based on her history

of recurrent UTIs. This encounter also was billed as an office visit,

with an indication that an antibiotic was prescribed for Ortiz’s UTI

history.

Not having received any communication from Dr. Young’s

office since the contact about the January 2019 appointment,

Sedgwick initiated contact with the office in May 2020. Sedgwick

inquired about any recent dates of service and requested

accompanying notes. The doctor’s office responded by sending

records regarding an appointment Ortiz attended on April 7, 2020,

more than a year following the January 2019 visit that Sedgwick

had last covered. The following month, Sedgwick requested

information related to any additional appointments Ortiz may

have had, and Dr. Young’s office advised that Ortiz had also been

seen on August 1, 2019, and August 12, 2019—appointments that

Sedgwick previously had not paid for. Notably, the adjuster for

Sedgwick testified in a deposition that she did not ask Dr. Young

for his notes of Ortiz’s visits in August to see what she had been

treated for.

If the adjuster had asked for those notes, she would have seen

the same treatment that the E/C had been paying for since 2015—

recurrent UTIs and dysuria. Indeed, the records make clear that

as of January 2019, Sedgwick had considered visits in connection

with Ortiz’s complaints about her urinary tract—of which her

7

remaining kidney was a part, the tract itself no longer fully intact

because one kidney had been removed following the accident—as

part of the permanent care it had accepted as related to her

permanent injury. Note that before and after the January 2019

appointment, Dr. Young routinely evaluated and treated Ortiz for

both dysuria and UTIs, the latter having been acknowledged by

Dr. Young in his notes as being recurrent for years. All three of the

appointments that Ortiz’s insurance paid for—appointments

Sedgwick later refused because of the statute of limitation—

appeared in the record to be nearly identical to the previous ones

just described that Sedgwick authorized and paid for nearly a

decade.

Despite all this, more than two months later, on August 7,

2020, Sedgwick filed a notice of denial of benefits, effectively

deauthorizing Dr. Young, claiming the limitation period expired on

January 29, 2020. On August 26, 2020, Ortiz filed a PFB seeking

authorization, provision, and scheduling of an appointment with

Dr. Young. Sedgwick responded, asserting in part that the PFB

was barred by the time limitation set out in section 440.19.

At the final hearing, only Ortiz testified in person. Medical

and billing records and depositions otherwise were simply

submitted for consideration by the JCC, the medical records

including narratives of why Ortiz was seeing Dr. Young and the

evaluations or treatments that were provided in response; the

billing records showing what both Sedgwick and private insurance

paid for from 2015 through 2020. Denying Ortiz’s claim, the JCC

concluded Winn-Dixie had sufficiently demonstrated a limitation

defense, focusing exclusively on the question whether the one-year

tolling period provided by section 440.19(2) (ostensibly running

from the January 29, 2019, visit) had expired before Winn-Dixie

provided further care again through Dr. Young—in essence

equating the expiration of the one-year tolling period with the

running of the entire two-year limitation period.

The JCC blamed Ortiz:

I find [Ortiz] knew [Winn-Dixie] did not “furnish” the care

she received on August 1, 2019, August 12, 2019, or April

7, 2020 because she provided Dr. Young’s office with her

health insurance information and confessed she was told

8

the doctor had “instructed” his staff to use the health

insurance as opposed to billing [Sedgwick].

(emphasis supplied). According to the order, Ortiz was “aware that

Dr. Young billed her health insurance for those visits, and she

facilitated it by providing the doctor’s office with her health

insurance information without questioning their need for it.”

(emphases supplied). The JCC concluded Ortiz “cannot now argue

those visits were compensable, nor that they should have been

compensable, in light of the fact that she was content to allow the

charges to be covered by her health insurance at the time.”

(emphasis supplied).

For the most part, the JCC conducted a record review in

determining whether Ortiz’s PFB was time-barred—Ortiz having

testified in person only briefly, and not with respect to any fact in

dispute; the rest of the evidence having been medical records and

depositions. Our “vantage point” on appeal, then, “is not inferior to

that of the JCC” in assessing the evidence and its probity. Hidden

Harbor Boatworks v. Williams, 566 So. 2d 595, 596 (Fla. 1st DCA

1990); Severini v. Pan Am. Beauty Sch., Inc., 557 So. 2d 896, 897

(Fla. 1st DCA 1990) (same); cf. Mendivil v. Tampa Envelope Mfg.

Co., 233 So. 2d 5, 6 (Fla. 1970) (“It should be noted that All

evidence was submitted by deposition. The industrial judge did not

personally see any of the witnesses. The Full Commission was,

therefore, in as good a position to evaluate the credibility of

witnesses and weigh the evidence as was the industrial judge.”).

The pertinent facts also are not in dispute. Our review of the JCC’s

application of section 440.19 to those facts is de novo. See McBride

v. Pratt & Whitney, 909 So. 2d 386, 387 (Fla. 1st DCA 2005) (“The

outcome of this appeal turns on our interpretation of the applicable

statute of limitations, found in section 440.19, Florida Statutes

(Supp.1994). Accordingly, our standard of review is de novo.”);

Airey v. Wal–Mart, 24 So. 3d 1264, 1265 (Fla. 1st DCA 2009)

(reviewing JCC’s dismissal of PFB as time-barred de novo where

the pertinent facts were not in dispute, making the issue “one

purely of law”); see also McKenzie v. Mental Health Care,

Inc./Summit Claims Ctr., 43 So. 3d 767, 768 (Fla. 1st DCA 2010)

(noting that review is de novo when an issue requires

interpretation and application of a statute). We conclude the JCC

9

misapplied the limitation and tolling provisions found in section

440.19, as we now explain.

II

Typically, and as with any statute of limitation, under the one

found in section 440.19(1), the employer or its carrier bears the

burden of raising the statute of limitation as a defense, indeed

waiving the defense unless it “advances the defense . . . in its initial

response to the petition for benefits.” § 440.19(4), Fla. Stat.; see

Palmer v. McKesson Corp., 7 So. 3d 561, 563 (Fla. 1st DCA 2009)

(“Because running of the statute of limitations is an affirmative

defense, the employer . . . had the burden of raising that defense

and proving that the petitions for benefits were untimely pursuant

to section 440.19(1).”). Also, like with any statute of limitation, the

employee—as proponent of the claim—bears the burden of proving

avoidance of that defense. See Palmer, 7 So. 3d at 563–64 (stating

that “where a workers’ compensation claimant seeks to extend or

avoid the statute of limitations by operation of section 440.19(2),

he or she bears the burden of establishing the exception”). The

limitation defense being properly and timely raised; Ortiz having

argued tolling as an avoidance; there being records and testimony

in evidence before the JCC that indicate some manner of tolling;

the facts material to the question of tolling not being in apparent

dispute—this essentially being a record-review case before the

JCC—whether one side’s burden or the other’s was met is not the

legal question we must address in this appeal. Instead, we look at

how the JCC applied the law to those facts before he concluded

Ortiz’s PFB was time-barred.

We conclude from this record that the August 2019 and April

2020 visits constituted the furnishing of remedial treatment and

care, each one further tolling the limitation period up to the point

when the PFB was filed. We also reject the appellees’ argument

that it was Ortiz, and not they, who bore the burden of proving

“compensability” of her UTI—of showing that her compensable

injury was the major contributing cause of it. Yes, Ortiz’s claim

focused on the tolling of the statute, but even in that context, she

did not have to raise or “re-prove” compensability.

There are a few facts we cannot overlook. First, the carrier

long ago accepted compensability of Ortiz’s kidney injury, even

10

stipulating to that compensability in this case. Second, the carrier

indisputably treated that injury as permanent—the carrier

authorizing follow-up visits, for an indeterminate duration, with a

urologist as needed to monitor for changes in her condition that

may necessitate further treatment related to the compensable

injury. Third, Sedgwick in the past paid for, and essentially

accepted, Ortiz’s visits to Dr. Young with UTI and dysuria

complaints, as well as follow-up visits to assess his prescribed

treatment for those complaints. With these facts as the backdrop,

we see no meaningful difference between the visits with Dr. Young

in August 2019 and April 2020 that Sedgwick did not pay for and

the years’ worth of visits that it did.

Bear in mind the point we made in the margin at the

beginning. The kidneys are part of the urinary tract. While the

appellees stipulated to the compensable injury as being the

surgically removed right kidney, there realistically would be no

need to medically monitor something that is no longer there. The

ongoing medical attention with a urologist that Sedgwick

authorized had to have been focused, then, on the permanent

medical condition of the remaining components of the urinary tract

the kidney loss left behind. That authorization comported with the

policy behind the Workers’ Compensation Law: “to indefinitely

preserve on a continuing basis the employer’s obligation to provide

reasonably necessary remedial treatment for permanent medical

conditions,” which “most assuredly can . . . consist of continuing

medical supervision involving the physician’s examination from

time to time, evaluation of claimant’s condition, and

recommendations for continuing or changing” existing treatment

or activities. Tower Chem. Co., 527 So. 2d at 889–90 (explaining

that “seeing [an authorized doctor] as part of his ongoing medical

supervision for a permanent medical condition caused by the

industrial accident” is “remedial attention,” as the term was used

in a predecessor statute). Sedgwick’s payment of the UTI and

dysuria visits before 2019 constituted its furnishing of care for

Ortiz’s compensable injury, in the process accepting those types of

visits as “reasonably necessary to [Dr. Young’s] on-going medical

attention” that Sedgwick had agreed to provide. Id. at 889; cf. City

of Orlando v. Blackburn, 519 So. 2d 1017, 1018 (Fla. 1st DCA 1987)

(construing “remedial treatment, care and attendance” to

treatment that “is not curative but which nevertheless mitigates

11

the conditions or effects of the injury”); McNeilly, 553 So. 2d at

1280–81 (noting “that, so long as a doctor is authorized to provide

follow-up care, and visits to the doctor for continuing supervision

and evaluation for possible change in treatment are reasonably

necessary from a medical standpoint, such visits constitute

‘remedial attention’ under the limitations statute [under its former

iteration]” (citing Tower Chem. Co., 527 So. 2d at 890)).

As in Tower Chemical Company v. Hubbard, here Sedgwick

“knew [Dr. Young] would provide remedial attention from time to

time, for it had authorized [him] to do so,” including visits to Dr.

Young for complaints of conditions pertaining to the remainder of

Ortiz’s urinary tract; and Sedgwick had done nothing (at least not

on the record) to “deauthorize” Dr. Young for those types of visits

by the time of Ortiz’s August 2019 and April 2020 visits. Tower

Chem. Co., 527 So. 2d at 890. There is no evidence in the record

that Sedgwick had communicated any such deauthorization or

limitation to Ortiz before any of those visits. We can infer from the

medical records showing Ortiz’s at-least-once-a-year visits that she

thought doing so was necessary to renew the one-year tolling

period and “preserve the right to future benefits.” Cf. Mahoney v.

Sears, Roebuck & Co., 438 So. 2d 174, 174 (Fla. 1st DCA 1983). So

the tolling question in this case is not a matter of whether Ortiz

failed to visit Dr. Young at all within a year’s time, or whether she

visited a new, unauthorized physician, or whether she sought

treatment for a new body part (i.e., a new injury, the

compensability of which being undetermined).

The contested visits in 2019 and 2020 constituted the same

furnishment of “medically necessary remedial treatment [and]

care” that Sedgwick previously had paid for. The stipulation to

compensability of the surgically removed kidney (and the

permanent condition of the urinary tract implicitly acknowledged

by the carrier to have been left behind in the kidney’s absence)

“does little in limiting [the carrier’s] area of responsibility, nor does

it give [Ortiz] guidelines as to what treatment [s]he should be

requesting from” Sedgwick. See Jackson v. Merit Elec., 37 So. 3d

381, 383 (Fla. 1st DCA 2010); see also Meehan v. Orange Cnty.

Data & Appraisals, 272 So. 2d 458, 462 (Fla. 1st DCA 2019) (noting

that “the conditions and symptoms for which the E/C accepted

responsibility continue to be experienced by the Claimant”). The

12

appellees did not limit their acceptance of compensability for the

kidney to any set of symptoms or diagnoses. This is significant,

especially given Sedgwick’s payment for evaluations and care for a

variety of symptoms and diagnoses tied to the urinary tract

generally. Cf. Meehan, 272 So. 3d at 462 (noting “legal

significance” of “broad stipulation” of compensability, which was

for illness stemming from the workplace and did not “specify

[particular] conditions,” and not allowing the carrier to “escape its

acceptance of compensability with an argument of misdiagnosis,”

where the “symptoms have not substantially changed since the”

accidental injury, symptoms “for which the E/C accepted

responsibility”).

The burden before the JCC in this case, then, was on the

appellees “to provide medical evidence that the causal connection

between” Ortiz’s “compensable [kidney] injury and the requested

treatment [in August 2019 and April 2020] was broken”—“that the

requested treatment was due to a condition unrelated to the injury

which [the appellees] had accepted as compensable.” See Jackson,

37 So. 3d at 383 (explaining that because the parties stipulated to

a back injury as being compensable, the claimant “met his initial

burden of proof to establish entitlement to the requested

treatment, as it was not disputed that the treatment was for the

back”); Sanchez v. YRC, Inc., 304 So. 3d 358, 362 (Fla. 1st DCA

2020) (observing that “[a]lthough a specific diagnosis could

establish the parameters of an injury accepted as compensable, the

E/SA presented no evidence of the acceptance of a specific diagnosis

for this admittedly compensable injury”; and evidence of a later

diagnosis did not prove that the diagnosis was not part of the

injury accepted as compensable, the carrier failing to present

“medical evidence suggesting that the degenerative condition here

did not exist [at the time of the stipulation] or could not be the

natural progression of the accepted injury” (emphases supplied));

see generally Engler v. Am. Friends of Hebrew Univ., 18 So. 3d 613,

614 (Fla. 1st DCA 2009) (“Once compensability is established, an

E/C can no longer contest that the accident is the MCC of the

injuries at issue. It can only contest the connection between a

claimant’s need for specific treatment or benefits, and the

industrial accident.”); Meehan, 272 So. 3d at 461 (explaining that

once compensability of an injury is accepted, the carrier has the

burden of demonstrating “the requested treatment was due to a

13

condition unrelated to the injury which the E/C had accepted as

compensable”).

That the relationship between the later requested care and

the compensable injury arises as an issue in a statutory limitation

context does not alter this burden. Otherwise, the carrier could

shift this burden simply by citing the statute of limitation as the

basis for deauthorizing care it once provided, as Sedgwick did here.

Cf. Meehan, 272 So. 3d at 461 (“By the E/C’s stipulation of

compensability, the Claimant was excused of the burden to

reestablish causation.”). Because Ortiz submitted evidence

demonstrating the similarity between the care Sedgwick had paid

for through January 2019 and the care she sought in August 2019

and April 2020, the appellees had to submit evidence showing “a

break in causation”—that the evaluation and treatment of Ortiz’s

UTIs and dysuria no longer were related to the loss of her kidney,

the injury itself having been accepted as compensable. See

Sanchez, 304 So. 3d at 363. No such evidence appears in the record

that was before the JCC. 6

Dr. Young’s decision to bill Ortiz’s personal insurance for the

three contested visits does not alter this analysis. It was not for

Dr. Young to decide whether the visits for evaluation of Ortiz’s UTI

or dysuria complaints fit within Sedgwick’s authorization. This

court repeatedly has held that who gets billed has no legal bearing

on the tolling question. See Seamco Labs., Inc. v. Pearson, 424 So.

2d 898, 900 (Fla. 1st DCA 1982) (“It is the remedial treatment that

tolls the statute, not the report [or billing] of the treatment.”);

McNeilly, 553 So. 2d at 1280–81 (“The fact that McNeilly paid for

the visit personally is also irrelevant, in that the significant event

is the rendition of remedial treatment before the expiration of the

two year period, and not the payment of the bill therefor.”); Sol

Dale Bldgs., Inc. v. Schweickert, 656 So. 2d 606, 609 (Fla. 1st DCA

1995) (“This responsibility cannot be shifted to the claimant. We

reiterate, as we held in McNeilly and Seamco, that it is the

6 In fact, the only evidence on the subject came from Ortiz,

who testified she returned to see Dr. Young for the same type of

care she had received before—Ortiz not having suffered UTIs

before her injury.

14

furnishing of the treatment, not the billing or reporting, that tolls

the statute.”); Gilbert v. Pinellas Suncoast Transit Auth., 674 So.

2d 818, 822 (Fla. 1st DCA 1996) (holding that because the

employee was authorized to return for follow-up care for his

compensable injuries, the “continuing evaluation and treatment”

for compensable injuries tolled the statute “despite the claimant’s

failure to request the E/SA to pay for the hospital’s services under

workers’ compensation”).

Simply put, it was legal error for the JCC to conclude the three

contested visits did not constitute the furnishment of care that

tolled the statute regarding Ortiz’s kidney injury. The evidence

showed all three were of a piece with the care Sedgwick had

authorized for years. The appellees failed to present evidence

showing something had changed such that Ortiz’s recurring

complaints no longer related to her compensable injury. And the

fact that Dr. Young suddenly stopped billing Sedgwick—without

any apparent communication to Ortiz from Sedgwick about

deauthorization—cannot support the JCC’s looking past that

failure and dismissing the PFB as time-barred anyway.

* * *

The question before us is whether the three contested visits

sufficiently restarted an applicable tolling period. The undisputed

record demonstrates that they did, so Ortiz’s PFB filed in August

2020 was not time-barred. The JCC’s final order is not supported

by the evidence in the record and is contrary to the law.

SET ASIDE. 7

7 This disposition, upon issuance of our mandate, renders the

order of dismissal a nullity, thereby reopening Ortiz’s claim before

the JCC. It has the same meaning as “vacate.” We use this

disposition, rather than “reversed,” to reflect our separate

authority to review orders of JCCs and other administrative

hearing officers. The Office of the Judges of Compensation Claims

being in the executive branch, the orders issuing out of that office

are matters of administrative law, having effect only within the

branch of which it is a part. Unlike our authority to review

judgments and other final orders of trial courts within our branch

15

ROBERTS, J., concurs; BILBREY,8 J., concurs with an opinion;

TANENBAUM, J., specially concurs with an opinion for himself.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

_____________________________

BILBREY, J., concurring.

I join the majority opinion in full. I write to emphasize that,

like this concurring opinion, Judge Tanenbaum’s concurring

opinion that follows is not the opinion of this court. These

concurrences have no precedential value. See Scott v. Trotti, 283

So. 3d 340, 345 (Fla. 1st DCA 2018). So, for instance, Judge

(which otherwise do have legal effect outside the branch), our

authority to review orders of administrative tribunals is purely a

function of statute, our review being “judicial review” of

administrative action. See Art. V, § 4(b)(2), Fla. Const. The

Legislature in turn has separately authorized this court to hear

“appeals” from JCC orders. See § 440.271, Fla. Stat. Even though

the Administrative Procedure Act (“APA”) does not apply in

workers’ compensation proceedings, we see no reason not to treat

our dispositions in appeals from those proceedings any differently

than the dispositions authorized by the Legislature for “judicial

review” generally in appeals from administrative proceedings. See

§ 120.68(7), (8), Fla. Stat. (referring to “affirm,” “set aside,”

“remand,” “modify,” and “ordering” further action as authorized

remedies). There are many historical examples of the use of “set

aside” found in federal statutes governing judicial review of

administrative action, which is probably the genesis of the term as

it appears in the Florida APA. See Developments in the Law:

Remedies against the United States and Its Officials, 70 HARV. L.

REV. 827, 903–04 & n.524 (1957) (listing examples).

8 Judge Bilbrey substituted for Judge Makar, who was

recommissioned as a judge of the Fifth District Court of Appeal.

Judge Bilbrey has viewed the digital recording of oral argument.

16

Tanenbaum’s conclusion that certain language in Orange County

School Board. v. Best, 728 So. 2d 1186, 1188 (Fla. 1st DCA 1999),

and Sanchez v. American Airlines, 169 So. 3d 1197, 1197 (Fla. 1st

DCA 2015), about tolling is dicta is not binding on JCCs or a panel

of this court considering the issue in the future. His reasoning may

be found to be persuasive or may be discarded. The majority

opinion correctly does not reach issues that do not need to be

decided to resolve the appeal.

TANENBAUM, J., specially concurring.

The conclusion in the compensation order regarding the

claim’s being time-barred is legally wrong for another reason, one

this panel does not formally reach in this case (if only because

Ortiz did not assert it before the JCC or here); but one that

nevertheless deserves being addressed. Simply put,

mathematically, the two-year limitation period could not have

expired—thereby barring Ortiz’s claim, as the JCC concluded it

did—because, based on the JCC’s own factual determination, the

period would not have even started, at the earliest, until January

2019—a period amounting to less than two years before Ortiz filed

her PFB.

I

Notwithstanding what has been the common practice (or

preference) among counsel and JCCs, here is what the law (read:

the statute) mandates for the determination of whether a workers’

compensation claim is time-barred, given the plain meaning of the

term “toll” as it is used in section 440.19, Florida Statutes.

A

The Workers’ Compensation Law gives an employee two years

to file a petition seeking a benefit stemming from a compensable

injury, the two years running from “the date on which [he or she]

knew or should have known that the injury or death arose out of

work performed in the course and scope of employment.”

§ 440.19(1), Fla. Stat.; cf. § 440.192(1), (3), Fla. Stat. (allowing an

employee to file “a petition for benefits” to seek “any benefit that

is ripe, due, and owing” and permitting a PFB to “contain a claim

17

for past benefits and continuing benefits in any benefit category,”

provided the benefits are “in default and ripe, due, and owing on

the date the petition is filed”). Section 440.19(1) undoubtedly is a

“statute of limitation” for workers’ compensation claims. Cf. Roe v.

City Investing/Gen. Dev. Corp., 587 So. 2d 1323, 1324 (Fla. 1991)

(treating the predecessor provision as a “two-year statute of

limitations”); Cash v. Universal Rivet, Inc., 616 So. 2d 446, 447–48

(Fla. 1993) (same); Medpartners/Diagnostic Clinic Med. Grp., P.A.

v. Zenith Ins. Co., 23 So. 3d 202, 205 (Fla. 1st DCA 2009)

(referencing the Legislature’s 1994 revision of section 440.19 to

implement “significant substantive changes to the statute of

limitations in workers’ compensation cases”); see generally Gaines

v. Orange Cnty. Pub. Utils., 710 So. 2d 139, 140 (Fla. 1st DCA 1998)

(treating revised section 440.19 as a statute of limitation).

There, however, also is a tolling provision, which states as

follows:

Payment of any indemnity benefit or the furnishing of

remedial treatment, care, or attendance pursuant to

either a notice of injury or a petition for benefits shall toll

the limitations period set forth above for 1 year from the

date of such payment. This tolling period does not apply

to the issues of compensability, date of maximum medical

improvement, or permanent impairment.

§ 440.19(2), Fla. Stat. (emphasis supplied). “[W]hether a cause of

action is time-barred,” then, turns on the determination of “the

separate and distinct issues of when the action accrued and

whether the limitation period was tolled.” Hearndon v. Graham,

767 So. 2d 1179, 1184 (Fla. 2000). The supreme court continued

this point as follows:

We extrapolate, therefore, that while accrual pertains to

the existence of a cause of action which then triggers the

running of a statute of limitations, tolling focuses directly

on limitation periods and interrupting the running

thereof. That both accrual and tolling may be employed to

postpone the running of a statute of limitations so that an

action would not become time-barred should not cause

confusion between these distinct concepts.

18

Id. at 1185 (emphases supplied).

The supreme court has been clear on what statutory tolling

means: It “suspend[s] the running of the statute of limitations time

clock until the identified condition is settled.” Hankey v. Yarian,

755 So. 2d 93, 96 (Fla. 2000) (emphasis supplied); cf. Hearndon,

767 So. 2d at 1185 n.2 (noting how this mirrors federal law, tolling

being concerned “with the point at which the limitations period

begins to run and with the circumstances in which the running of

the limitations period may be suspended” (emphasis supplied)

(internal citations omitted)). In other words, “a tolling provision

interrupts the running of the statutory limitations period,” so the

statutory time provided “is not counted against the claimant

during” the tolling period. Hankey, 755 So. 2d at 97 (emphasis

supplied) (quoting Rothschild v. NME Hosps., Inc., 707 So. 2d 952,

953 (Fla. 4th DCA 1998)). Each time a tolling period starts, the

statutory limitation “clock stops until the tolling period expires

and then begins to run again.” Id. (quoting Rothschild, 707 So. 2d

at 953).

And this understanding of what “toll” means is not endemic to

its use in one statute; it is the “plain meaning” of the term. Id. at

96. Not just that, “the word ‘toll’ has been consistently used by the

Legislature and interpreted by the courts to mean ‘suspend’ when

used in a statutory limitation[] context.” Id. at 97 (emphasis

supplied) (looking to meaning of “toll” in the general limitations

statute—section 95.051, Florida Statutes—and concluding the

Legislature intended for the term “to have the same meaning in

section 766.106(4)”); Hearndon, 767 So. 2d at 1184–85 (considering

the meaning and application of “toll” as used in section 95.051).

“Toll,” then, must carry the same meaning wherever it appears in

a limitation statute, including its usage in section 440.19(2). Cf.

Goldstein v. Acme Concrete Corp., 103 So. 2d 202, 204 (Fla. 1958)

(assuming that the Legislature “intended certain exact words or

exact phrases to mean the same thing” in “both the mechanics’ lien

statutes . . . and the Workmen’s Compensation Act,” such that “to

the extent that an understanding of one may aid in the

interpretation of the other, [the two should] be read and considered

together”); State v. Hearns, 961 So. 2d 211, 217 (Fla. 2007) (“We

have held that where the Legislature uses the exact same words

19

or phrases in two different statutes, we may assume it intended

the same meaning to apply.” (citing Goldstein, 103 So. 2d 202)).

B

There is nothing unique about how the term “toll” appears in

the limitation provision of section 440.19—no special definition

provided. As the supreme court directs, the term’s application to a

time-bar determination should be as straightforward in the

workers’ compensation context as it is in any civil context. The first

question to be answered, then, is when did the claim accrue. In

clear terms, the two-year limitation period for a workers’

compensation claim runs from “the date on which the employee

knew or should have known that the injury [] arose out of work

performed in the course and scope of employment.” § 440.19(1),

Fla. Stat. (emphasis supplied); cf. Solar Pane Insulating Glass, Inc.

v. Hanssen, 727 So. 2d 961, 963 (Fla. 1st DCA 1998) (“The

limitations period does not begin to run, however, until an injured

employee is aware that he or she may be entitled to compensation

benefits.”). That is the accrual date, and the two-year “time clock”

(the metaphor used by the supreme court in Hankey v. Yarian)

starts running from there. 1

1 The limitation period, then, is tied to the employee’s injury,

which makes sense—the accidental injury being the unit of

compensability under chapter 440. Cf. §440.09(1), Fla. Stat.

(requiring employer to “pay compensation or furnish benefits

required by this chapter if the employee suffers an accidental

compensable injury or death arising out of work performed in the

course and the scope of employment,” and requiring that “the

accidental compensable injury must be the major contributing

cause of any resulting injuries” (emphases supplied)); § 440.192(8),

Fla. Stat. (providing that a carrier’s failure to deny compensability

under section 440.20(4) “is deemed to have accepted the employee’s

injuries as compensable” (emphasis supplied)); § 440.20(4), Fla.

Stat. (requiring an employer to “admit or deny compensability

within 120 days after the initial provision of compensation or

benefits”); Checkers Rest. v. Wiethoff, 925 So. 2d 349, 349–50 (Fla.

1st DCA 2006) (distinguishing between compensability (defined as

“the occurrence of an industrial accident resulting in injury”) and

20

Relevant to this case, section 440.19(2) tolls this running for a

period of one year each time the carrier “furnish[es] remedial

treatment [or] care” in response “to either a notice of injury or a

“[o]ther issues concerning the worker’s entitlement to benefits . . .

including the extent of the compensable injury and the causal

relationship between the compensable injury and the condition for

which the worker seeks benefits”); Jackson v. Merit Elec., 37 So. 3d

381, 383 (Fla. 1st DCA 2010) (“Confusion is also generated by the

inexact and conflated use of the terms ‘accident’ and ‘injury.’ An

accident results in injuries which require treatment. Generally,

treatment is not furnished for an accident, but for an injury. Thus,

it is not the accident that the treatment must relate to; it is the

injury.”); Babahmetovic v. Scan Design Fla. Inc., 176 So. 3d 1006,

1008 (Fla. 1st DCA 2015) (“Compensability is a concept used to

convey the idea that the Florida Workers’ Compensation Law

applies; it requires the presence of certain elements described

throughout chapter 440 by terms of art such as accident, injury,

arising out of work performed in the course and the scope of

employment.” (internal citation omitted)); id. (“The JCC is correct

that ‘[t]here must first be a compensable accident and injury before

an employee is entitled to any benefit allowed in Chapter 440.’”);

Sierra v. Metro. Protective Servs., 188 So. 3d 863, 867 (Fla. 1st DCA

2015) (“Importantly, because medical treatment is usually

provided for an injury, not an ‘accident,’ a declaration that the need

for specific medical treatment is not caused in major part by the

workplace ‘accident’ evades the essential determination of the

identity of the compensable injury.” (emphasis supplied)).

There is only one injury relevant to the issue at hand, but it

nevertheless stands to reason—based on section 440.19’s injury-

centric limitation period—that a subsequently discovered or

arising injury would carry with it a separate two-year limitation

period during which PFBs could be filed (for the determination of

entitlement to benefits related to that subsequent injury), the new

limitation period running from when the employee knew or should

have known of the new injury’s causal link with the compensable

accident or a previously compensable injury.

21

petition for benefits.” 2 As the supreme court has directed with

respect to other statutory tolling provisions, the JCC must count

the days between accrual and the day a tolling period starts (i.e.,

when qualifying treatment or care was furnished) and add to that

sum each number of days that elapse between the end of one tolling

period and the beginning of another. If the carrier provides a

benefit tied to the compensable injury before a one-year tolling

period expires, the period restarts without anything being added

to the sum of those elapsed days. The final sum of all these elapsed

days represents the amount of the statutory limitation period that

has run, so subtracting this sum from two years (730 days) yields

the number of days remaining in the limitation period for the

employee to file a timely PFB.

Next, to determine whether a PFB is time-barred, the JCC

easily can figure out the date when the statutory limitation period

expires “by adding [the] days . . . remaining in the original two-

year limitations period [at the time the last tolling period began]

to [] the date when the limitations period [last] began to run

again.” Hankey, 755 So. 2d at 100 n.7; cf. Tanner v. Hartog, 618 So.

2d 177, 183–84 (Fla. 1993) (referring to the length of the

“remainder of the statute of limitations” when tolling began and

adding those remaining days to the end after the tolling expires to

determine by when the party had to file suit (internal quotation

and citation omitted)); Hankey, 755 So. 2d at 99 (referring to times

when the limitation period is suspended and when it begins

“running again” after expiration of a tolling period); id. at 100 n.7

(same). 3 As long as the employee files the PFB related to the injury

2 “Payment of any indemnity benefit” also starts the tolling

period. § 440.19(2), Fla. Stat.

3 This methodology tracks the “calculation method” set out by

the Fourth District, which the supreme court approved in Hankey:

On December 16, 1993, when the alleged medical

malpractice occurred, the statute of limitations started to

run. On July 7, 1995, when the appellant filed the notice

of intent to initiate litigation, 161 days remained until the

expiration of the limitations period on December 16,

1995. However, on July 7th, the statute was tolled for 90

22

triggering the limitation period before the new date, the PFB is not

time-barred. This approach ensures an employee is “given the

entire two-year period [he or she was] entitled to under the statute

to file suit, not counting the period[s] of suspension.” Hankey, 755

So. 2d at 98 (emphasis supplied); id. at 100 n.7.

Practitioners and JCCs must bear in mind the distinction the

supreme court makes between a statutory extension of a limitation

period and a statutory tolling period—the former time being

“tacked on to the end of the limitations period,” the latter having

the effect of suspending the running of that period, regardless of

how long it is. Id. at 98; see also Tanner, 618 So. 2d at 182 (noting

how an extension of a limitation period “is separate and additional

to any other tolling period”). This distinction here is key to

understanding the significance of the Legislature’s addition of the

current tolling provision to section 440.19 in 1994.

Before 1994, section 440.19 did not contain an express tolling

provision; it used language that effectuated an extension. Cf.

§ 440.19(1)(a), (b), Fla. Stat. (1993) (using the term “toll” only to

prohibit any tolling and referring to rights to compensation and

remedial care under the law being “barred” if a claim is not filed

days until October 7, 1995. On October 7, 1995, the

statute began to run again, and 161 days still remained

until the expiration of the statute of limitations period.

On October 30, 1995, the appellant “purchased” a ninety-

day extension under section 766.104(2). The statute had

run 23 days from October 7, 1995, and the 138 days

remaining, plus the ninety-day extension, meant that as

of October 30th, 228 days remained in the statutory

period. On November 17, 1995, when the appellee served

the notice to terminate, the remaining time in the

limitations period was 228 days less eighteen days from

October 30th, or 210 days. Thus, when the appellant filed

the complaint on February 6, 1996, some eighty days

later, it was well within the statute of limitations period.

Rothschild, 707 So. 2d at 953, approved by Hankey, 755 So. 2d at

94, 100.

23

within two years of the injury or within two years of the last

payment of compensation or provision of care). The statute allowed

a claim to be “filed within two years of the last remedial treatment

. . . so long as the claim is filed within two years after the last

remedial treatment,” even if the original two-year limitation

period had run. Roe, 587 So. 2d at 1325; cf. Bell v. Com. Carriers,

603 So. 2d 683, 685 (Fla. 1st DCA 1992) (reading section 440.19 as

allowing for “revival” of the limitation period); Ellis v. Galloway’s

Inc., 794 So. 2d 710, 711 (Fla. 1st DCA 2001) (same). This all

changed with the Legislature’s 1993–94 reforms, which included

adding the term “toll” in a new subsection two (quoted above),

thereby creating a true tolling period in place of the old extension

period recognized and applied by this court. See ch. 93-415, § 23,

Laws of Fla. With this addition, our court, JCCs, and practitioners

are not at liberty to carry on with the practice of considering only

whether the one-year tolling period has run and ignoring whether

there is still time left in the statutory limitation period. We are all

bound to give the term “toll,” as it appears in section 440.19, the

same meaning and application the supreme court did in Tanner v.

Hartog and Hankey—because that is what the supreme court has

directed must happen whenever the term appears in a statutory

limitation context. See Hoffman v. Jones, 280 So. 2d 431, 434 (Fla.

1973) (noting that district courts “are [] bound to follow the case

law set forth by” the supreme court). 4

4 Twice in the past, by my count, this court has (erroneously)

referred to section 440.19(2) as an extension of the two-year period,

rather than as the true tolling provision that it clearly is. See

Orange Cnty. Sch. Bd. v. Best, 728 So. 2d 1186, 1188 (Fla. 1st DCA

1999) (referring to subsection two as having “no practical effect

until after the two-year period provided for in section 440.19(1)

expires,” because the “[p]rovision of medical treatment or

indemnity benefits can extend the limitations period but cannot

shorten it” (emphasis supplied)); Sanchez v. Am. Airlines, 169 So.

3d 1197, 1197 (Fla. 1st DCA 2015) (“Subsection (1) of section

440.19 provides generally that a PFB must be filed within two

years after the date of injury or it will be barred, and subsection

(2) provides that the only events that will extend the statute of

limitations are the payment of indemnity benefits or the

furnishing of medical treatment.” (emphasis supplied)). Of course,

24

II

Under this straightforward approach to tolling dictated by the

supreme court, the finding of the JCC about the appellees’

continuous provision of care, by itself, points to a rejection of their

time-bar defense. The entire paragraph of the order on this point

is as follows:

There is no dispute regarding the compensability of

Claimant’s accident. As a result of her work accident

Claimant underwent a nephrectomy; her right kidney

was removed. EC agrees Marvin Young, M.D., a urologist

in Lake Mary, Florida was an authorized treating

physician until they denied the claim based on the statute

of limitations. EC furnished Claimant with authorized

medical treatment from the date of her accident until

January 29, 2019.

(emphasis supplied). The highlighted text should have been the

end of the matter regarding the limitation period. This

determination by the JCC meant that under the plain meaning of

“toll” as used in section 440.19(2)—and under the supreme court’s

application of the term in a limitation context—no days on the

limitation clock could have ticked off before the initial one-year

tolling period began, and no days could have ticked off due to

breaks between one-year tolling periods, by the January 2019

these statements cannot be reconciled with the distinction the

supreme court made between tolling and extensions in Tanner and

Hankey. At all events, though, these statements are dicta. See Best,

728 So. 2d at 1186 (“The question is whether the statute bars a

petition for benefits filed within two years of an industrial accident

where more than a year has elapsed since ‘the furnishing of

remedial treatment’” (emphasis supplied)); Sanchez, 169 So. 3d at

1197 (framing “the narrow question presented in this case [as]

whether the payment of attorney’s fees to Claimant’s counsel—

with no other medical or disability benefits being paid

simultaneously to Claimant and no PFBs pending—is sufficient to

extend the statute of limitations under subsection

440.19(2)”(emphases supplied)).

25

provision of care by Dr. Young. 5 If January 29, 2019, marked the

beginning of the last one-year tolling period, Ortiz would still have

had a full two years remaining in her statutory limitation period

to file a PFB when that period expired a year later. By the time

she filed the PFB on August 26, 2020, 6 then, only 210 days would

have run on the statute, leaving 520 days remaining in the

limitation period. 7 On the face of the JCC’s own order of

dismissal—with its determination, essentially, that there was

continuous tolling until January 29, 2020—Ortiz’s PFB was not

time-barred.

Despite this determination that there had been no break in

care for sixteen years—meaning continuous tolling for that length

of time—the JCC seemingly dismissed the whole two-year

limitation period from consideration as if it had already run:

noting it was “axiomatic[:] that [Ortiz’s] August 26, 2020 PFB was

not filed within two years after her September 28, 2003 accident.”

I explain above why this approach is not consistent with the law.

The panel does not utilize this line of analysis, though—not

because it is not valid, but because Ortiz did not raise it. We cannot

reach the issue as an alternate (and more direct) basis for setting

the order aside. See Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st

DCA 2019) (en banc) (“For an appellant to raise an issue properly

on appeal, he must raise it in the initial brief. Otherwise, issues

not raised in the initial brief are considered waived or abandoned.”

(collecting authority from the supreme court)).

5 This assumes the two-year limitation period for Ortiz’s

kidney injury triggered the day of her accident, not an

unreasonable assumption given the nature of the accident and the

blow to her right side, requiring emergency treatment.

6 This year was a leap year.

7 The PFB “tolls the statute of limitations as long as it remains

pending.” Airey v. Wal-Mart/Sedgwick, 24 So. 3d 1264, 1265 (Fla.

1st DCA 2009); see § 440.19(3), Fla. Stat. (requiring that a PFB

meet statutory specificity requirements to toll the limitation

period).

26

To be fair to the JCC, Ortiz also did not argue the two-year

limitation period at the final hearing as a basis for rejecting the

time-bar defense. And, as it turns out, practitioners have not been

seeking an application of the tolling provision in section 440.19(2)

the way statutory tolling provisions have been applied nearly

everywhere else in Florida civil litigation—indeed, the way the

supreme court described in Tanner and Hankey. Practitioners

across the spectrum of the workers’ compensation bar seem to have

hewed to the one-year-extension approach for quite some time—

which the appellees, oddly enough, characterize as “decades of

settled law”—despite the 1994 amendment that added the word

“toll” in a new section 440.19(2), and despite the supreme court

decisions going the other way.

Holding aside the plain meaning of “toll” and the supreme

court analysis described above, for a moment; not only is this old

approach contrary to the plain meaning of the term “toll”; but it

also simply does not make sense. The one-year-extension approach

necessarily presumes that the two-year limitation period already

has run, so no further inquiry on the amount of time remaining in

that period would be warranted. Section 440.19(2), however,

literally refers to “toll[ing] the limitations period.” If the two-year

period already has run, what is still being tolled? By the clear

terms of this statutory provision, it is the limitation period being

tolled—nothing else—and an expired period obviously could not be

tolled, there being nothing left to suspend. Section 440.19(2) does

not use the language of extension, so it cannot be read to operate

as a reanimation of the moribund period. Logically speaking, then,

if the limitation period in fact has not expired (because it at

varying points has been tolled), it behooves practitioners and JCCs

to inquire how much time is left in the period. After all, it is not

the tolling period that bars the PFB in the end, but the expiration

of the two-year limitation period.

With this being said, the obvious has been ignored for too long.

According to supplemental authority submitted by the appellees,

JCCs fortunately have been engaging in the tolling-limitation

analysis described above since this court’s original opinion (which

the appellees describe as dicta anyway). Even with the more

limited holding now set out by the panel, there is no good reason

for the practitioners or JCCs to revert to their old, erroneous ways.

27

No one needs an opinion from this court to know what the law

requires in the limitation space. All involved in fact have

something better: a statutory term with a plain, well-understood

legal meaning in this context, plus supreme court decisions that

describe in mathematical detail how that clear term operates in

practice.

These supreme court decisions may have been overlooked by

the workers’ compensation bar and JCCs previously. My hope is

that, going forward, practitioners and JCCs will feel empowered

by the supreme court decisions I have discussed to continue with

their approach of analyzing tolling the way it plainly is meant to

be; and was meant to be, starting in 1994: as a suspension of the

limitation period—requiring an assessment of the stops and starts

impelled by the provision of benefits—before making the final

determination of whether the statutorily established two-year

limitation period has run, rather than just the one-year tolling

period.

_____________________________

Richard A. Sicking and Mark A. Touby of Touby, Chait & Sicking,

P.L., Coral Gables, for Appellant.

William H. Rogner of HR Law, P.A., Orlando, for Appellees.

28