Estes v. Palm Beach County School District, Davies Claims North America, Inc.

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D2025-0079

_____________________________

NANCY ESTES,

Appellant,

v.

PALM BEACH COUNTY SCHOOL

DISTRICT, and DAVIES CLAIMS

NORTH AMERICA, INC.,

Appellees.

_____________________________

On appeal from the Office of the Judges of Compensation Claims.

Gregory J. Johnsen, Judge of Compensation Claims.

Date of Accident: September 30, 2021.

March 23, 2026

EN BANC

OSTERHAUS, C.J.

In 1994, a comprehensive revision of the Workers’

Compensation Law became effective in Florida. As part of that

overhaul, the Legislature replaced a statute of limitations regime

in § 440.19(1), Florida Statutes, that had allowed claimants to

obtain successive two-year extensions to seek benefits. The revised

law took a stricter tolling approach under which a claimant’s

receipt of injury-related treatment or benefits would “toll the

[original two-year] limitations period set forth above . . . for 1 year

from the date” that the benefits were provided or paid. § 440.19(2),

Fla. Stat. (emphasis added). Nancy Estes’s case turns on the

meaning of this tolling provision. Because the term “toll” here

means to suspend, stop temporarily, or abate the “limitations

period set forth above,” rather than extending a discrete one-year

period to file additional claims, we set aside the final order which

dismissed Estes’s petition for benefits on timeliness grounds. 1

I.

Nancy Estes was a teacher employed by the Palm Beach

County School District. On September 30, 2021, she tripped and

fell on the job sustaining an accidental injury that was accepted as

compensable by Appellees, the employer/carrier (E/C). The E/C

paid workers’ compensation medical and indemnity benefits to

Estes for about sixteen months, from October 2021 to January

2023. According to the parties’ hearing stipulation, the last date

the E/C furnished any benefit was January 26, 2023. After that,

the E/C filed a Notice of Denial on February 8, 2023, signaling its

intention to deny any additional future medical treatments or

benefits based on allegations that the accident was not the major

contributing cause of her need for such treatments or benefits. In

June 2024, about seventeen months after receiving her last

benefits, Estes filed a petition for benefits (PFB). She sought a one-

time change in orthopedists and other benefits. The E/C denied her

claims contending that the statute of limitations barred them all.

1 This appeal has been decided en banc because, as discussed

below, it corrects our interpretation of § 440.19(2) in a way that

directly conflicts with how several previous panels of this court

applied the tolling provision in cases such as: Orange Cnty. Sch.

Bd. v. Best, 728 So. 2d 1186, 1188 (Fla. 1st DCA 1999); Claims

Mgmt., Inc. v. Philip, 746 So. 2d 1180, 1181 (Fla. 1st DCA 1999);

Medpartners/Diagnostic Clinic Med. Grp. v. Zenith Ins. Co., 23 So.

3d 202, 204, 206 (Fla. 1st DCA 2009); Varitimidis v. Walgreen

Co./Sedgwick Claims Mgmt. Services, Inc., 58 So. 3d 406, 407–08

(Fla. 1st DCA 2011); Sanchez v. Am. Airlines, 169 So. 3d 1197, 1198

(Fla. 1st DCA 2015). See Fla. R. App. P. 9.331(a) (allowing for en

banc hearings if “necessary to maintain uniformity in the court’s

decisions”).

2

The Office of the Judges of Compensation Claims took up the

matter and, by agreement of the parties, held a first-step final

hearing, focusing upon the timeliness of Estes’s petition and the

proper application of the limitations and tolling provisions in

§ 440.19. The PFB had been filed more than two years after the

accident and more than a year after the furnishment of the last

compensation benefit. And so, the Judge of Compensation Claims

(JCC) followed the statute-of-limitations approach from Best,

Philip, and similar precedents and concluded that § 440.19(1)’s

two-year statute of limitations had lapsed after having never been

suspended or abated by operation of § 440.19(2). Instead, the final

order concluded that § 440.19(2) had gained Estes a discrete

extension to file her claim calculated one year from the date on

which she last received treatment or benefits from the E/C. The

JCC’s Final Order thus dismissed with prejudice Estes’s entire

PFB on statute of limitations grounds. The Final Order

alternatively considered Estes to have raised compensability

issues, to which the tolling provision in § 440.19(2) doesn’t apply.

Estes subsequently appealed and argued that the tolling

provision had been incorrectly interpreted and applied. In Estes’s

view, § 440.19(2) suspended the original two-year statute of

limitations clock for a substantial period, such that her PFB was

filed well within the applicable statutory deadline and shouldn’t

have been dismissed as untimely. More specifically, because the

E/C had furnished Estes care and benefits for sixteen months,

starting almost immediately after her injury until January 2023,

those benefits tolled—meaning suspended or abated—the running

of § 440.19(1)’s two-year limitations clock until one year after the

E/C furnished her last treatment and benefits. And so, the two-

year limitations clock didn’t even begin running again until the

expiration of the separate one-year tolling clock established by

§ 440.19(2), which was January 2024 at the soonest. Consequently,

due to the tolling, Estes claimed to have most of the original two-

year limitations period still intact when she filed her PFB in June

2024.

3

II.

A.

This case requires us to decide whether the E/C’s provision of

workers’ compensation treatment or benefits suspends the

running of the two-year statute of limitations in § 440.19. Estes

argues that her June 2024 petition for benefits was timely filed

because her receipt of injury-related benefits through January

2023, suspended § 440.19(1)’s two-year limitations clock until one

year after she received the last benefits and then resumed running

in January 2024 (which gave her until January 2026 to file her

PFB). Whereas the E/C views the two-year statutory limitations

period to have never been stopped after the date of the accident,

except that claimant got the benefit of a separately running one-

year extension, which ran past the end of the limitations period,

ending one year after receiving her last treatment or benefits in

January 2023 (which gave her only until January 2024 to file a

PFB). 2

The history of legislative revisions to § 440.19 is relevant to

analyzing the parties’ competing statute-of-limitations arguments.

Starting in 1994, the Legislature changed the text of the operative

statute of limitations provision in § 440.19 from an extension-

based regime to a tolling-based one. Before 1994, the pertinent text

stated as follows:

(a) The right to compensation for disability,

rehabilitation, impairment, or wage loss under this

chapter shall be barred unless a claim therefor which

meets the requirements of paragraph (e) is filed within 2

years after the time of injury, except that, if payment of

compensation has been made or remedial treatment or

rehabilitative services have been furnished by the

2 Estes also argued on rehearing before the JCC that her

limitations period extended even further because payments for her

benefits were made by the E/C on a later date. We see, however,

no error in the JCC’s rejection of that argument on preservation

grounds.

4

employer on account of such injury, a claim may be filed

within 2 years after the date of the last payment of

compensation or after the date of the last remedial

treatment or rehabilitative services furnished by the

employer. This limitations period shall not be tolled or

extended by the failure of the employer or carrier to file a

notice of injury. . .

(b) All right for remedial attention under this section

shall be barred unless a claim therefor which meets the

requirements of paragraph (e) is filed with the division

within 2 years after the time of injury, except that, if

payment of compensation has been made or remedial

attention or rehabilitative services have been furnished by

the employer without an award on account of such injury,

a claim may be filed within 2 years after the date of the

last payment of compensation or within 2 years after the

date of the last remedial attention or rehabilitative

services furnished by the employer; and all rights for

remedial attention or rehabilitative services under this

section pursuant to the terms of an award shall be barred

unless a further claim therefor is filed with the division

within 2 years after the entry of such award, except that,

if payment of compensation has been made or remedial

attention or rehabilitative services have been furnished

by the employer under the terms of the award, a further

claim may be filed within 2 years after the date of the last

payment of compensation or within 2 years after the date

of the last remedial attention or rehabilitative services

furnished by the employer. However, no statute of

limitations shall apply to the right for remedial attention

relating to the insertion or attachment of a prosthetic

device to any part of the body. . .

§ 440.19(1)(a)−(b), Fla. Stat. (1993) (emphases added).

Under this pre-1994 regime, the Florida Supreme Court

consistently treated the highlighted language as an extension of

the statute of limitations as opposed to a suspension of it. See

Sargent v. Evening Indep., Inc., 62 So. 2d 58, 60 (Fla. 1952);

Watson v. Delta Airlines, Inc., 288 So. 2d 193, 196 (Fla. 1973)

5

(“Thus, on the dual basis of 1) ‘remedial’ attention having been

voluntarily furnished within the two years required by the same

exceptions within the two statutes, and 2) compensation

voluntarily paid ‘without an award’ also within such two years, the

claimant falls within the statutory exceptions in s 440.13(3)(b) and

s 440.19(1)(a) and is within such ‘extended’ two year statute of

limitations as a basis for recovery.” (emphasis added)); cf. Daniel

v. Holmes Lumber Co., 490 So. 2d 1252, 1256 (Fla. 1986) (“Yet in

the case of sections 440.13(3)(b) and 440.19(1)(a) no ambiguities

exist. These statutes unequivocally state that so long as an

employee files a claim within two years of the last voluntary

compensation payment or dispensation of remedial treatment

made without an award the claim is timely. Neither statute

contains any reference whatsoever to the relevance of a two-year

gap in time.”) (citations omitted); Holder v. Keller Kitchen

Cabinets, 610 So. 2d 1264, 1267 (Fla. 1992) (“This provision has

since been redesignated section 440.19(1)(a). This amendment

removed the limitation restricting the exception to the two-year

limitation period for filing a claim for compensation to situations

where payment of compensation or remedial treatment was

voluntarily provided. Thus, under the plain language of the

amendment, the extension of the limitations period applies where

payment of compensation or remedial treatment has been provided

either voluntarily or pursuant to an order. Amendments, such as

this, that lengthen the limitation period for filing a claim apply to

claims that are viable at the time of the amendment.” (emphasis

added) (citations omitted)). And so, with each new payment or

treatment came a fresh two-year extension of the limitations

period, leaving the original two-year period completely in its wake.

This court also treated the prior language as either an

extension of the limitations period or, similarly, a revival of the

limitations period. See Iuen v. Live Wire Elec. Co., 538 So. 2d 1312,

1313 (Fla. 1st DCA 1989) (“Voluntary payment for remedial

attention revives the two year limitation period, even if a two year

period without compensation payments or remedial attention has

already passed.”); Roe v. City Inv./Gen. Dev. Corp., 587 So. 2d

1323, 1324, 1325 (Fla. 1991) (“Hence the statute in its present form

unambiguously states that a claimant is entitled to disability if a

claim is filed within two years of the last remedial treatment. We

therefore hold that a claim for disability is not time-barred, despite

6

a two-year gap between the injury and the claim, so long as the

claim is filed within two years after the last remedial treatment.”);

Bell v. Com. Carriers, 603 So. 2d 683, 685 (Fla. 1st DCA 1992)

(“Under the clear language of the statute, the fact that the

employer may not have intended to voluntarily provide remedial

treatment and thus revive the statute of limitations for the 1981

injury is not controlling. Remedial treatment need not be

voluntary in order to revive the statute. The critical question is

whether the claimant has filed a claim within two years of the last

compensation payment or remedial treatment causally related to

a compensable injury.” (emphasis added) (citations omitted)).

But in 1994 the Legislature tightened the statute of

limitations provision in § 440.19, by pivoting to a tolling regime

that fixed the two-year period in subsection (1) altogether as the

ultimate basis for calculating the limitations period when benefits

are provided. It stated:

(1) Except to the extent provided elsewhere in this

section, all employee petitions for benefits under this

chapter shall be barred unless the employee, or the

employee’s estate if the employee is deceased, has advised

the employer of the injury or death pursuant to s.

440.185(1) and the petition is filed within 2 years after

the date on which the employee knew or should have

known that the injury or death arose out of work

performed in the course and scope of employment.

(2) 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.

(3) The filing of a petition for benefits does not toll the

limitations period set forth in this section unless the

petition meets the specificity requirements set forth in s.

440.192.

7

§ 440.19(1)−(3), Fla. Stat. (1994) (emphases added).

Using the word “toll” to establish a “tolling period” departed

from the previous statute’s “except[ion]” and extension of the

limitations period. The revision reined in a previously more

claimant-friendly regime that gave claimants rolling two-year

extensions of the limitations period. Under the revised statute, the

original term would remain the base two-year limitations period

for seeking benefits but would allow for qualifying events to “toll”

the two-year period for a year.

The Legislature did not define “toll” in the revised statute. We

must do so here because our past cases have not given it proper

effect. “Toll” is a legal term with an established, ordinary meaning.

See Debaun v. State, 213 So. 3d 747, 751 (Fla. 2017) (quoting Sch.

Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So. 3d

1220, 1233 (Fla. 2009) (“Where, as here, the [L]egislature has not

defined the words used in a [statute], the language should be given

its plain and ordinary meaning.” (alterations in original)).

Dictionaries can supply the “best evidence” of ordinary meaning.

Conage v. United States, 346 So. 3d 594, 599 (Fla. 2022). Where

“toll” is used in the context of a statutory limitations period,

dictionaries define it as meaning “to suspend or stop temporarily

as the statute of limitations is tolled during the defendant’s

absence from the jurisdiction and during the plaintiff’s minority.”

Black’s Law Dictionary 1488 (6th ed. 1990); see also Black’s Law

Dictionary 1495 (7th ed. 1999) (defining “toll, vb. . . . 2. (Of a time

period, esp. a statutory one) to stop the running of; to abate <toll

the limitations period>”); Hankey v. Yarian, 755 So. 2d 93, 95 n.3

(Fla. 2000) (citing the Black’s Law Dictionary definition of “toll” in

a statute of limitations case); Sheffield v. Davis, 562 So. 2d 384,

386 (Fla. 2d DCA 1990) (describing the “plain and obvious”

meaning of “toll” in accordance with various contemporaneous

dictionary definitions and cases); cf. Artis v. D.C., 583 U.S. 71, 80–

81 (2018) (defining “tolling” to effect a suspension of the limitation

period’s running, a suspension that can be lifted, prompting the

period to “start[] running again when the tolling period ends,

picking up where it left off”).

8

That “toll” means “suspend,” “stop temporarily,” or “abate” in

subsection (2) can also be deduced from §440.19’s description of

tolling under subsection (5). There, if a person is

a minor, the limitations period is tolled while that person

has no guardian or other authorized representative, but

the period shall begin to run . . . in the case of a minor, if

no guardian is appointed before the minor becomes of age,

from the date the minor becomes of age.

§440.19(5), Fla. Stat. (2021) (emphases added). This subsection

works by having the tolling “suspend” the two-year limitations

period from subsection (1) and remain stopped (for years

potentially) before it “begin[s] to run” again after the stated

condition occurs—the minor becomes of age. Conversely,

subsection (5) does not toll by adding time as the E/C argues. For

example, the limitations period in subsection (5) wouldn’t be

calculated in the case of a guardian-less, fifteen-year-old claimant

by simply granting a three-year extension until the coming-of-age

date and then ending the limitations clock on the eighteenth

birthday. See § 743.07, Fla. Stat. (removing the disability of nonage

at age eighteen). Rather, subsection (1)’s two-year-limitations-

period clock is “tolled,” or suspended, by subsection (5) until the

guardian-less minor comes of age, at which time the claimant gets

two years to file a claim (until age 20). See Benton v. ICR Electric,

852 So. 2d 295, 296 (Fla. 1st DCA 2003) (holding that “[e]ven if the

petition for benefits was filed more than two years after the death

of the claimant, a minor’s claim would not be barred by the statute

of limitations . . . [because] the limitations period . . . will not begin

to run until a guardian or representative is appointed or until they

reach the age of majority”). In view of how tolling works in

subsection (5), we cannot interpret it to mean something different

in subsection (2).

Use of the dictionary definition of “toll” finds additional

support in contemporaneous, 1990’s-era Florida Supreme Court

interpretations of other statutes of limitations provisions. Just one

year before the revision to §440.19(2) took effect, the Florida

Supreme Court discussed how “extension” and “tolling” create

different effects on the running of limitations periods. In Tanner v.

Hartog, 618 So. 2d 177 (Fla. 1993), for example, the court

9

explained, albeit in dicta, that section 766.106(4), Florida Statutes,

which deals with medical malpractice actions, tolls the statute of

limitations for at least 90 days when a prospective claimant

notifies each prospective defendant of an intent to initiate

litigation. Id. at 182-83. Following the 90-day period, the new

statute of limitations deadline would be calculated based on “the

time that was remaining in the limitations period” when the 90-

day period began (unless less than 60 days remained, in which case

the deadline would be in 60 days). Id. at 183-84. The court’s

recognition of “the time that was remaining” shows that “toll” in

1994 meant to “suspend” the running of the limitations clock until

the tolling period ends.

Six years after the 1994 revisions to §440.19, the Florida

Supreme Court reiterated that the “PLAIN MEANING” of the

word “toll” in a statute-of-limitations context was “routinely and

consistently interpreted as suspending the running of the statute

of limitations time clock until the identified condition is settled.”

Hankey, 755 So. 2d at 96–97 (citing district court cases from 1991

and 1995). The Court then applied this plain meaning of “toll” to

the same medical malpractice statute discussed in Tanner:

“Because the word ‘toll’ has been consistently used by the

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

used in a statutory limitations context, we conclude that it was

intended to have the same meaning in section 766.106(4).” Id. at

97. The discussion in Hankey also makes clear that, in Florida, an

“extension” of a limitations period and a “tolling” of a limitation

period are different concepts, such that there is significance to the

Legislature’s choice between these terms in the limitations

context. The Court explained as follows:

Section 766.106(4) of the statutory scheme also provides

that if there are less than sixty days remaining to file suit

before the end date of the original two-year limitations

period at the time the claimant filed the notice of intent

to initiate litigation, then the claimant shall have sixty

days from the time when the notice of termination of

negotiations is received by him to file suit. If, however,

there were more than sixty days remaining to file suit

before the end date of the original two-year limitations

period when the claimant filed the notice, then the

10

claimant only has the time remaining in the original two-

year period to file suit. This provision provides additional

time to the limitations period separate and apart from the

ninety days of tolling, but only in the limited

circumstances set out in the statute where less than sixty

days remain to file suit at the time the claimant files the

notice of intent.

Id. (emphasis added); see also id. at 98 (agreeing that “the

‘extension’ provided for under section 766.104(2) is a genuine

extension of time to be added to the limitations period, rather than

a tolling (suspension) as provided for under section 766.106(4). . . .

Hence, this time period is to be tacked on to the end of the

limitations period and does not run simultaneously with the

separate ninety-day tolling period provided in section 766.106(4).”)

(emphases added).

We likewise conclude here that the same term “toll,” added to

§ 440.19(2) in 1994, carries the exact meaning discussed in Tanner

and Hankey. In other words, tolling operates by “interrupt[ing] the

running of the statutory limitations period, the statutory time is

not counted against the claimant during that . . . period. In

essence, the clock stops until the tolling period expires and then

begins to run again.” Hankey, 755 So. 2d at 97. The continuing

interaction of the two time-periods set forth in § 440.19(2)— “shall

toll the limitations period set forth above for 1 year”—reveals the

Legislature’s intention to fix the limitations period set forth in

subsection (1) as the base period with suspensions of its clock

triggered by qualifying tolling events.

This court’s previous decisions, on the other hand, erred by

not interpreting and applying the tolling provision in §440.19(2)

according to this plain meaning. In Orange County School Board

v. Best, 728 So. 2d 1186, 1188 (Fla. 1st DCA 1999), for instance, we

faced the issue of whether the one-year tolling period superseded

the two-year limitation period. We proceeded to conflate the

definitions of “toll” and “extend” in pronouncing that the two-year,

original statute of limitations period could not be stopped. We

decided that the limitations period could only be extended under

subsection (2) for a discrete one-year period running from the date

that benefits were provided: “A petition is timely if filed within two

11

years of the date of accident or, even thereafter, if filed within one

year of the last date the petitioner received medical treatment or

indemnity benefits.” Id. (emphasis added); see also id. at 1187 (“We

read section 440.19(1), Florida Statutes (1995), as the statute of

limitations generally applicable in workers’ compensation cases,

subject to the exceptions—which extend the limitations period in

certain circumstances—set out in the other subsections of section

440.19. . . . Subsections that follow subsection (2) can have no effect

other than to extend the two-year statute of limitations set out in

section 440.19(1), Florida Statutes (1995).” (emphasis added)). By

conflating the concepts of tolling and extending time, we concluded

that “Section 440.19(2) has no practical effect until after the two-

year period provided for in section 440.19(1) expires. As long as the

petition is timely under either section 440.19(1) or section

440.19(2), the statute of limitations is no bar.” Id. (emphases

added). Our court has repeated this interpretative error ever since.

In Philip, for example, we settled for a reference to legislative

intent and simply concluded that our construction was a “more

reasonable one.” 746 So. 2d at 1182 (reading the new term “toll” as

having “the effect of extending the limitations period”);

Medpartners/Diagnostic Clinic Med. Grp., 23 So. 3d at 204

(referring to the term “toll” as meaning “toll or extend” (emphasis

supplied)); Varitimidis, 58 So. 3d at 407–08; Sanchez, 169 So. 3d

at 1198 (treating “toll” as meaning “extend”).

Our duty, however, is to faithfully apply the plain and

ordinary meaning of the enacted text. We discharge that duty now

by interpreting the term “toll” in § 440.19(2) in accordance with its

accepted meaning to suspend or stop temporarily the limitations

period provided in subsection (1). This outcome honors the express

relationship established between the limitations period and tolling

period prescribed by subsection (2). It also brings this law into

conformity with the other limitations provisions in Florida law

that establish time-certain tolling periods, such as § 766.106(4),

discussed above (setting a ninety-day tolling period for some

medical malpractice claims), and § 624.155(3)(e) (setting a sixty-

day period for some insurance claims). Under each of these

provisions, like with § 440.19, parties must manage two important

statutory clocks that run separately: the limitations-period clock

and the tolling clock. Cf. Stimpson v. Ford Motor Co., 988 So. 2d

1119, 1121 (Fla. 5th DCA 2008) (quoting 135 Fla. Jur. 2d

12

Limitations and Laches § 87 (2008) (describing tolling of a

limitations period to be “analogous to a clock stopping and then

restarting”). And so, here, under § 440.19, after an employee

knows or should have known of a qualifying workplace injury, the

two-year limitations-period clock begins to run. But then, if an E/C

provides benefits after the injury, the limitations-period clock is

stopped while the one-year tolling clock begins running (and then

restarts after every subsequent provision of a benefit). The

limitations-period clock restarts again one year after the provision

of the last benefit. In this way, tolling in § 440.19 accords with how

tolling statutes normally work; it “suspend[s] the running of the

statute of limitations time clock until the identified condition is

settled.” Hankey, 755 So. 2d at 96.

Applying the law to the situation here, the parties agreed that

Estes received many workers’ compensation benefits for injuries

starting within two days of her workplace accident in 2021 for a

period extending through January 2023. As a result, the one-year

tolling clock promptly stopped the running of the two-year

limitations-period clock after the accident until one year after

Estes received last of these benefits—through at least January

2024. And so, when Estes filed her PFB in June 2024 (seeking a

one-time physician change and benefits for the same injuries), she

was only about six months into the running of the two-year

limitations-period clock. In other words, the date of her PFB fell

squarely within the running of the two-year limitations-period

clock, which wouldn’t have expired until January 2026 under these

facts. For this reason, we set aside the final order’s dismissal of the

petition.

In reaching this result, we respectfully acknowledge the

arguments of our dissenting colleagues on the issue of what tolling

means. They assert that we shouldn’t depart from the previous

cases and that the use of “tolling” in the 1994 revision to subsection

(2) didn’t alter the mechanics of the old extension-based regime.

They point out that our court at times even characterized the pre-

1994 extension regime as “tolling” the limitations period. And

then, citing “the well-established rule of statutory construction

that the Legislature is presumed to be cognizant of relevant

judicial decisions when enacting statutes,” they assert that

statutory construction canons require us to continue elevating our

13

incorrect interpretation of §440.19(2) over its plain and ordinary

meaning. Potter v. Potter, 317 So. 3d 255, 258 (Fla. 1st DCA 2021).

But the prior-construction canon would not apply here.

Although some of our cases referred to “tolling” under the pre-1994

limitations period regime, none of them interpreted the term itself,

or supplied a definition of “toll” for the Legislature to latch onto.

So that from our sporadic use of “tolling” in the old cases, we can

hardly ascribe an intention by the Legislature to abandon its plain

meaning and adopt an unconventional definition that our court

never adopted prior to the statutory revision. See Antonin Scalia

& Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 322 (2012) (explaining that the prior-construction canon

applies when the word or phrase has received “authoritative

construction” by the highest court or “uniform construction” by

inferior courts).

The dissenters’ definition of tolling also fails to account for the

Legislature’s pivot in the 1994 revision to language that crafted

limitations-period primacy in the basic two-year statute of

limitations in subsection (1). The Legislature didn’t just use the

new word “toll” in § 440.19(2) and leave the statute otherwise

intact. Rather, it abandoned a regime that previously discarded

the base two-year statute of limitations in long-term-injury/benefit

situations in favor of extending a wholly discrete series of rolling

two-year limitations periods. The revised statute went in another

direction. It called for establishing a durable two-year limitations

period to serve as the ultimate clock and basis in every case,

subject to intermittent stoppages: “Payment . . . or the furnishing

of [any benefit] . . . shall toll the limitations period set forth above

for 1 year from the date of such payment.” § 440.19(2), Fla. Stat.

(emphasis added). Under this revised § 440.19(2) regime, tolling is

always accomplished in reference to the subsection (1) limitations

period, which controls as the ultimate arbiter of time. Once the

“limitations period set forth above” has run, there is nothing left to

toll and tolling becomes unavailable. Conversely, the dissenters’

view of tolling promptly displaces “the limitations period set forth

above” two years after the workplace injury and resurrects the

legislatively replaced successive-extension model by giving a series

of rolling one-year extensions to claimants in long-term-

injury/benefit situations without regard to the limitations period

14

in subsection (1). Because the dissenters’ view abandons the

Legislature’s express intention in subsection (2) to have tolling

anchored by reference to the subsection (1) limitations period, we

must reject it.

We also aren’t convinced that the dissenters’ economic

argument proves that its interpretation is the correct one. While

we acknowledge that the Legislature’s 1994 revision stemmed

from fiscal troubles with Florida’s workers’ compensation system,

both the majority’s and dissenters’ interpretations here appear to

improve the economics of the prior system (though no record

evidence specifically addresses the economics of either approach).

The dissenters’ hypothesis and chart notwithstanding, it isn’t for

us to decide statutory interpretation questions based upon the

economics of things if the plain text of the law fails to support that

result. And so here, we must heed the Legislature’s decision to

craft a tolling provision that establishes the subsection (1)

limitations period as the master clock over the possibility that the

dissenters’ interpretation may be a less costly regime.

Finally on the tolling issue, we understand the dissenters’

stare decisis-based preference for us to stick with our previous

wrongly decided § 440.19(2) cases. But here “we have chosen to

reassess a precedent and have come to the conclusion that it is

clearly erroneous.” State v. Poole 297 So. 3d 487, 506-07 (Fla.

2020). Now, “[t]he proper question becomes whether there is a

valid reason why not to recede from that precedent.” Id. (emphasis

in original). The critical consideration here is reliance. Id. Poole

instructs that reliance interests are at their lowest in cases

“involving procedural . . . rules,” which is exactly what is at stake

with § 440.19’s statute of limitations regime. With low-stakes

reliance interests in view, we must elevate the goals of correctly

interpreting § 440.19’s limitations-period regime, which vindicates

the Legislature’s preferred parameters for this regime. We

therefore hold en banc that the tolling provision in § 440.19(2)

suspends or stops temporarily the limitations-period clock

established in subsection (1), instead of extending separate one-

year limitations periods for claimants to file claims in these cases.

B.

15

In reaching this conclusion, we likewise reject the E/C’s

alternative argument that characterizes this whole case as one big

compensability issue to which § 440.19(2)’s tolling provision

doesn’t apply. While it is true that tolling under § 440.19(2) doesn’t

apply to the issue of compensability, here, the compensability of

Estes’s original trip-and-fall injuries was settled long ago and isn’t

at issue. There has been no evidence presented—to this point at

least—that this case involves any different injury or accident to

which a separate compensability determination might apply. And

Estes needn’t re-establish the compensability of the same injuries.

See Meehan v. Orange County Data & Appraisals, 272 So. 3d 458,

461 (Fla. 1st DCA 2019) (discussing how “once a claimant has

established compensability of an injury . . . the E/C cannot

challenge the causal connection between the work accident and the

injury [but] may only question the causal connection between the

injury and the requested benefit”). We must be careful here not to

“[blur] the distinction between compensability and entitlement to

benefits.” Checkers Rest. v. Wiethoff, 925 So. 2d 348, 349–50 (Fla.

1st DCA 2006); Pinellas Cnty. Transit Auth. v. Jackson, 424 So. 3d

984, 986 (Fla. 1st DCA 2025 (specifying that “[c]ompensability

involves the work-place-related existence and cause of an injury

and not benefits-entitlement issues”).

Under the facts here, the E/C accepted compensability of

Estes’s workplace injuries immediately after the accident and then

paid for treatment and benefits for sixteen months. See

§ 440.34(3)(c), Fla. Stat. (1994) (referring to the “issue of

compensability” where “a carrier or employer denies that an

accident occurred for which compensation benefits are payable”).

In turn, the E/C conceded Estes’s injury to be “accepted as

compensable” in the pretrial stipulation in this case: it marked “X”

in “Yes” box and left the “No” box empty. It also agreed that the

following injuries or conditions are accepted as related to the

accident: “E/C/SA: Exacerbation of the Right Knee” (while the E/C

also noted, fairly enough, that it “has not accepted compensability

for those conditions deemed to be unrelated, pre-existing or

degenerative in nature and/or barred by the Statute of

Limitations”). On the average weekly wage issue the parties’

pretrial stipulation differed only as to the amount involved: Estes

claimed a base wage of $1527.30, and the E/C claimed $1112.56.

And so, the parties agreed that Estes’s PFB involved already-

16

compensable injuries, even if the parties differed about her right

to (and the amount of) specific benefits associated with these

injuries.

Of course, the JCC put to the side all the substantive issues

in this case, so we know very little about Estes’s claims. The only

issue teed up by the parties’ stipulation was the E/C’s statute of

limitations defense and how § 440.19(2)’s tolling provision applied

(both parties agreed that it applied). According to the E/C’s

stipulation:

The [E/C] established a prima facie case that the PFB is

barred by the Statute of Limitations as the date of the

accident was over two years ago on 9/30/2021; the last

medical provision provided to the Claimant was on

1/26/2023. Therefore the SOL expired on 1/26/2024. The

Claimant’s PFB was not filed until 6/13/2024.

With this stipulation the E/C conceded that the tolling provision

applied here to extend the statute of limitations to 1/26/2024, but

no further. And so, both sides agreed that the tolling provision

applied here, just for different periods based on their different

interpretations of “toll.” This is different from the dissenters’ view

of compensability that the tolling provision never applied here.

We acknowledge the dissenters’ repeated assertions that

Estes made pivotal stipulations about compensability that totally

control this case. But the record doesn’t show it. We can find no

such stipulation from Estes. Consider the PFB. Estes listed eight

claims stemming from her compensable accident and injuries. She

sought various indemnity benefits, a one-time-change of her

orthopedic physician “to evaluate and treat claimant’s work-

related injuries,” attorneys’ fees and costs, and “authorization and

determination of financial responsibility” of claimant’s knees and

right wrist (original injuries). Even if these benefit claims might

require a major contributing cause analysis to determine Estes’s

entitlement to additional benefits, they do not resurrect the long-

settled compensability issue.

We also understand that Estes’s PFB stated a ninth, single

claim for “compensability” apparently covering the already-

17

accepted knees and wrist. But the scope of this claim hasn’t been

fleshed out in the record because the JCC didn’t take evidence or

address any substantive claims. This claim was asserted against a

backdrop of the E/C accepting and providing extensive benefits for

17 months before filing a notice of denial of compensability and

unilaterally declaring that Estes “no longer needs additional

medical treatment for the work-related [2021] injury.” Of course,

an E/C cannot just reject compensability of a long-accepted

compensable injury. “Once compensability of a work accident is

established, an E/C may no longer contest that the accident is the

MCC of the injuries.” Teco Energy, Inc. v. Williams, 234 So. 3d 816,

820–21 (Fla. 1st DCA 2017). And thus, it appears that the PFB

sought to resolve the E/C’s supposed “denial” of already-accepted

injuries which wouldn’t involve making a new compensability

determination. Id. (noting under § 440.20(4) that “a carrier who

fails to deny compensability within that 120 days after the initial

provision of benefits waives the right to deny compensability”); see

also Babahmetovic v. Scan Design Fla. Inc., 176 So. 3d 1006, 1008

(Fla. 1st DCA 2015) (addressing an error that “came about by the

JCC’s conflating the existence and cause of the [work] injury—

compensability—with the existence and cause of the need for

treatment”) (emphasis in original). 3

3 Appellant’s Reply Brief outlined the dangers of accepting the

E/C’s argument and transforming ordinary MCC benefit-

entitlement issues into compensability issues in long-term injury

cases:

Were it as argued by Appellees, there would be no

reason for a carrier to provide any benefits after two years

in any case, ever; it could simply incant “compensability

denial” at, near, or after, the conclusion of two years, stop

paying benefits, and thereby close the courthouse doors

… forever. The statutory language does not strip the JCC

of authority to adjudicate claims of entitlement to

benefits that might bear some relationship to

compensability, MMI, or permanent impairment—as this

describes all benefits available under chapter 440 after

two years. Notably, the tolling provisions of section

440.19(2) will operate to extend time most frequently in

cases with permanent compensable injuries. The tolling

18

Conversely, there is no evidence at this point that Estes’s case

involves a subsequent or different injury than was already

accepted by the E/C. And so, we cannot see characterizing Estes’s

whole case as a compensability issue and dismissing it on statute

of limitations grounds. The compensability reference in one of

Estes’s claims shouldn’t have been applied to subsume Estes’s

benefit-entitlement claims, or to preclude her altogether from

receiving the benefit of § 440.19(2)’s tolling provision. This is

easiest to see with Estes’s one-time physician change claim, which

can hardly be considered a compensability issue. See

Babahmetovic, 176 So. 3d 1006 (noting that a one-time change in

physicians is awardable when a compensable injury exists

irrespective of whether a prior physician thinks that the injury is

no longer the major contributing cause of the need for future

medical care).

We likewise reject the dissenters’ imputation of an election of

remedy waiver against Estes based on the JCC’s bifurcation of the

trial. No support is cited for this proposition. And here, nothing

indicates that Estes offered a stipulation about compensability as

a condition or prerequisite for gaining a bifurcated hearing. The

bifurcation motion itself says nothing of being predicated on a

compensability determination. Nor did the JCC’s resultant order.

There is also no rule requiring a compensability issue to exist

before a JCC can bifurcate a trial. Here, ordinary efficiency

concerns seemed to motivate the decision to separate out the

statute of limitations issue for trial, which was a perfectly fine and

reasonable way to handle things. Nor did appealability of the final

order hinge upon a compensability issue. The final order was

appropriately appealed under Fla. R. App. P. 9.180(b)(1) as a final

order. It was not a non-final order appealed under (b)(1)(C)’s

“compensability” provision. All to say, Estes didn’t execute some

election of remedies waiver here.

provision cannot cannibalize itself. Nor could it strip a

JCC of jurisdiction to decide the merits of a limitations

defense (especially if predicated on a falsity).

19

Moving on, the dissenters needn’t fear that this opinion alters

what we have said in other cases about compensability and MCC

issues. We haven’t. The E/C’s acceptance of Estes’s workplace

injury did not constitute an agreement for the E/C to provide any

and all requested treatments or benefits. The E/C remains free to

assert that the accident-related injury isn’t connected with or

didn’t create the need for a specific requested benefit. See Checkers

Rest., 925 So. 2d at 349 (noting the “[o]ther issues” beyond the

injured worker’s entitlement to benefits that “remain subject to

challenge, including the extent of the compensable injury and the

causal relationship between the compensable injury and the

condition for which the worker seeks benefits”). And if the work

related injury has combined with a preexisting disease or condition

to cause or prolong disability or the need for treatment, then the

E/C must pay benefits “only to the extent that the injury arising

out of and in the course of employment is and remains more than

50 percent responsible for the injury as compared to all other

causes combined and thereafter remains the [MCC] of the

disability or need for treatment.” § 440.09(1), Fla. Stat.; Teco

Energy, 234 So. 3d at 821. Should a new compensability issue

appear, then the E/C may freely accept or deny compensability if

and when the new injury arises. Id. at 822; McIntosh v. CVS

Pharmacy, 135 So. 3d 1157, 1159 (Fla. 1st DCA 2014) (noting that

“[i]t was of no consequence that compensability [of the claimant’s

PTSD] was sought long after the date of the accident; the relevant

inquiry is whether the E/C denied compensability within 120 days

of first providing treatment for the PTSD”). Our discussion of

compensability here affects none of this.

Instead, from the limited evidence available here, we fail to

see a controlling compensability issue that forecloses the

application of § 440.19(2)’s tolling provision and requires this

entire case to be dismissed with prejudice on statute of limitations

grounds. Rather, the E/C accepted the 2021 accident, resulting in

a compensable injury with benefits provided. Estes’s 2024 PFB

sought additional benefits stemming from the same accident and

injury, which should have received the benefit of § 440.19(2)’s

tolling provision, notwithstanding that she pressed one currently

unelaborated “compensability”-related claim. That single claim

doesn’t alone control the statute of limitations question for Estes’s

other claims. If this “compensability” claim turns out to involve

20

some new injury, then the parties and the JCC can address it

under existing law.

III.

For these reasons, we will set aside the final compensation

order and remand it for further consideration consistent with this

opinion.

We acknowledge the dissenters’ dislike for “setting aside” the

final order of the JCC as opposed to “reversing” it. In this decision,

we have identified a threshold legal error in the JCC’s order—the

erroneous application of the limitations-period statute—and have

set aside the order that dismissed Estes’s petition on statute of

limitations grounds. The JCC did not touch the merits of Estes’s

petition, and we’ve disturbed nothing on the substantive front.

From here, the case will return to the administrative tribunal,

where presumably the parties and JCC will account for our

decision and proceed consistent with the JCC’s authority and

discretion under the applicable statutes and rules. Beyond setting

aside the JCC’s order for legal error, we do not presume to direct

the JCC, an administrative officer of the executive branch, how to

perform his statutory duties on remand. See Florida Fish &

Wildlife Conservation Comm’n v. Daws, 256 So. 3d 907, 917 (Fla.

1st DCA 2018) (“The judiciary violates the doctrine of separation

of powers if it directs an administrative agency to perform its

duties in a particular manner.”).

We’ve discussed before the broader issue of why we “set aside”

workers’ compensation orders instead of reversing them. We do so

in deference to separation-of-powers principles and the statutes

under which we review the orders of JCCs and similarly situated

administrative hearing officers. See Hernandez v. Fla. Dep’t of

Management Servs., 355 So. 3d 465, 473 (Fla. 1st DCA 2022)

(describing that “[i]n an administrative appeal, we have the

authority, among other things, to “set aside agency action,” to

“decide the rights, privileges, obligations, requirements, or

procedures at issue between the parties,” and to order “such

ancillary relief as the court finds necessary to redress the effects of

official action wrongfully taken or withheld”) (quoting

§ 120.68(6)(a), Fla. Stat.); Ortiz v. Winn-Dixie, Inc., 402 So. 3d 301,

21

311 n.7 (Fla. 1st DCA 2024) (explaining the rationale for setting

aside the orders of JCCs). Because the Office of the Judges of

Compensation Claims lies within the executive branch, its final

orders are matters of administrative law. See § 440.45(1)(1), Fla.

Stat. (“There is created the Office of the Judges of Compensation

Claims within the Department of Management Services.”). Under

Chapter 440, a JCC may take evidence and adjudicate these cases

consistent with statutory duties and issue orders that are effective

within the executive branch. But this authority goes only so far as

necessary to determine a claim under chapter 440. Stated

differently, a JCC, as authorized by the Legislature, can

conclusively adjudicate disputed facts involving the benefits that

turn on those facts, but cannot issue judgments the same as an

Article V court. Cf. Gordon v. Gordon, 59 So. 2d 40, 43 (Fla. 1952)

(“[W]hen a final decree or judgment of a court of competent

jurisdiction becomes absolute it puts at rest and entombs in

eternal quiescence every justiciable, as well as every actually

adjudicated, issue.”). Indeed, to enforce an order of a JCC, a

claimant must seek relief from an Article V court. See § 440.24(1),

Fla. Stat. (granting jurisdiction to circuit courts to issue a rule nisi

to enforce the terms of a final compensation order); Metro. Dade

Cnty. v. Rolle, 661 So. 2d 124, 127 (Fla. 1st DCA 1995) (“It is settled

that a judge of compensation claims has no jurisdiction even to

enforce [a] prior compensation order since the sole remedy for

enforcement is by the procedure outlined in subsection 440.24(1),

Florida Statutes.”) (citations omitted); see also Staffing Concepts

Intern., Inc. v. Paul, 704 So. 2d 691, 692 (Fla. 3d DCA 1997) (“[A]

circuit court’s inquiry in a rule nisi proceeding is confined to

whether there is a valid workers’ compensation order in effect and

whether there was a default of that order.”).

The Legislature has authorized this court to hear “appeals”

from OJCC orders. See § 440.271, Fla. Stat. With cases from

administrative tribunals, different from our authority to review

judgments and other final orders of trial courts from within our

own branch of government, our authority to review orders are a

function of statute—termed “judicial review” of administrative

action. See Art. V, § 4(b)(2), Fla. Const. There is no legislative

guidance or statutory parameters for reviewing the administrative

orders rendered under chapter 440. But our authority in this

administrative context closely resembles what occurs in our review

22

of orders under the Administrative Procedure Act (“APA”), where

the Legislature has set forth various authorized remedies. See

§ 120.68(7), (8), (10), Fla. Stat. (setting forth the court’s authority

to “affirm,” “set aside,” “remand,” and “modify” as authorized

remedies). We glean from this sister statute our authority to “set

aside” administrative action when it “has erroneously interpreted

a provision of law and a correct interpretation compels a particular

action,” or when the “agency’s exercise of discretion was . . .

[o]utside the range of discretion delegated to the agency by law” or

“[o]therwise in violation of a constitutional or statutory provision.”

§ 120.68(7)(d), (e), Fla. Stat. Based on this legislative authorization

to review the JCC’s order and in recognition of Florida’s strict

separation of powers, we set aside the order and go no further by

directing the OJCC on how to exercise their statutory duties on

remand.

SET ASIDE and REMANDED for further consideration consistent

with this opinion.

LEWIS, ROBERTS, ROWE, RAY, WINOKUR, NORDBY, LONG, and

TREADWELL, JJ., concur.

BILBREY, J., dissents with an opinion in which M.K. THOMAS, J.,

joins.

M.K. THOMAS, J., dissents with an opinion in which BILBREY, J.,

joins.

KELSEY, J., recused.

NEFF, J., did not participate.

_____________________________

Not final until disposition of any timely and

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

9.331.

_____________________________

23

BILBREY, J., dissenting.

I join Judge Thomas’ opinion in full. Because the tolling

period does not apply to issues of compensability, we should not be

considering tolling under section 440.19(2), Florida Statutes.

Nonetheless, the en banc majority recedes from our precedent

interpreting that subsection. 1 Because the majority unnecessarily

recedes from our easy-to-apply precedent, installs a regime that

will be difficult if not impossible to apply in workers’ compensation

cases, and potentially eliminates the statute of limitations in many

cases, I respectfully dissent.

The issue in dispute is the application of section 440.19,

Florida Statutes, to the facts here. As the majority opinion points

out, that section was substantially amended in 1993, effective

January 1, 1994, and has not been amended since gender-neutral

language was added in 1997. See Ch. 93-415, §§ 23, 112, Laws of

Fla.; ch. 97-103, § 113, Laws of Fla. The subsections at issue read:

(1) Except to the extent provided elsewhere in this

section, all employee petitions for benefits under this

chapter shall be barred unless the employee, or the

employee’s estate if the employee is deceased, has advised

the employer of the injury or death pursuant to

s. 440.185(1) and the petition is filed within 2 years after

the date on which the employee knew or should have

known that the injury or death arose out of work

performed in the course and scope of employment.

1 While I respectfully disagree with the majority’s decision to

recede from our precedent, I do appreciate the majority opinion

acknowledging the precedent and addressing it directly. En banc

consideration “is designed to help the district courts avoid conflict,

assure harmonious decisions within the courts’ geographic

boundaries, and develop predictability of the law within their

jurisdiction. Consistency of decisions within each district is

essential to the credibility of the district courts.” Chase Fed. Sav.

& Loan Ass’n v. Schreiber, 479 So. 2d 90, 93 (Fla. 1985).

24

(2) 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.

Before section 440.19 was amended, the word “toll” was not

present in the statute. Section 440.19(1)(a), Florida Statutes

(1993), provided a two-year limitation period except “a claim may

be filed within 2 years after the date of the last payment of

compensation or after the date of the last remedial treatment

furnished by the employer.” Our cases called this extension “toll”

and used that word to mean “extend,” rather than “suspend.” See,

e.g., Sol Dale Bldgs., Inc. v. Schweickert, 656 So. 2d 606, 609 (Fla.

1st DCA 1995) (“[I]t is the furnishing of the treatment, not the

billing or reporting, that tolls the statute.”); Taylor v. Metro. Dade

Cnty., 596 So. 2d 798 (Fla. 1st DCA 1992) (reversing for further

proceedings to determine whether the use of a medical device

provided “a basis for tolling the statute”); Seamco Laboratories,

Inc. v. Pearson, 424 So. 2d 898, 899 (Fla. 1st DCA 1982)

(“[T]reatment by an authorized physician within the two-year

period was sufficient to toll the running of the statute.”).

The majority holds that the amendment to section 440.19(2)

adding the word toll changed the meaning of the word from how

we had used it in previous cases. This is inconsistent with “the

well-established rule of statutory construction that the Legislature

is presumed to be cognizant of relevant judicial decisions when

enacting statutes. In fact, the Legislature will be presumed to

adopt those relevant prior judicial decisions unless the contrary is

expressed.” Potter v. Potter, 317 So. 3d 255, 258 (Fla. 1st DCA

2021). In adding the word toll, the Legislature was not altering

our application of the extension period that was previously

present. Rather, the Legislature was codifying our previous

holdings.

Following the 1993 amendment to section 440.19(2), we have

repeatedly read the tolling provision to mean extend rather than

25

suspend. See Sanchez v. Am. Airlines, 169 So. 3d 1197, 1197 (Fla.

1st DCA 2015) (“[S]ubsection (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.”); Varitimidis v.

Walgreen Co./Sedgwick Claims Mgmt. Services, Inc., 58 So. 3d

406, 407–08 (Fla. 1st DCA 2011); Medpartners/Diagnostic Clinic

Med. Grp. v. Zenith Ins. Co., 23 So. 3d 202, 204, 206 (Fla. 1st DCA

2009); Claims Mgmt., Inc. v. Philip, 746 So. 2d 1180, 1181 (Fla. 1st

DCA 1999); Orange Cnty. Sch. Bd. v. Best, 728 So. 2d 1186, 1188

(Fla. 1st DCA 1999). Although not discussed in any of those cases,

tolling in a workers’ compensation case applies many more times

than other instances of tolling. This is because there are usually

many times in a typical workers’ compensation case when

payments are made or treatment is supplied to a claimant.

We have also called an extension of time tolling in a different

context. In Syfrett v. Syfrett-Moore ex rel. Estate of Syfrett, 115

So. 3d 1127, 1131 (Fla. 1st DCA 2013), we discussed rule

1.140(a)(3), Florida Rules of Civil Procedure. That rule applies

when a defendant files certain motions directed to the complaint.

The rule extends the time for a defendant to serve a responsive

pleading until “10 days after the filing of the court’s order” denying

or postponing disposition of the motion. Id. In discussing the

impact of this rule we stated, “Thus, because Appellant had not yet

answered the complaint due to the tolling by her motion to

dismiss, Appellee had to establish that there was no answer that

Appellant could serve and no affirmative defense that she could

allege which would raise an issue of material fact.” Syfrett, 115

So. 3d at 1131 (emphasis added). We further stated, “This tolling

is important because the summary judgment standard changes

under these circumstances.” Id. (emphasis added).

The majority opinion has tolling suspend the running of the

two-year limitation period but only based on the last payment to a

claimant. With respect, even if toll is read to mean suspend, the

whole of section 440.19(2) must still be applied. “All parts of the

statute must be given effect, and the Court should avoid a reading

of the statute that renders any part meaningless. . . . Moreover, ‘all

parts of a statute must be read together in order to achieve a

consistent whole.’” Searcy, Denney, Scarola, Barnhart & Shipley,

etc. v. State, 209 So. 3d 1181, 1189 (Fla. 2017) (citation omitted).

26

“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.” § 440.19(2),

Fla. Stat. (emphasis added). So each time a claimant receives an

indemnity benefit or is furnished treatment, another year should

be added from the date of such payment to the tolling timer that

the majority opinion creates. This would effectively eliminate the

statute of limitations in most workers’ compensation cases.

The provisions of section 440.19 at issue were amended in a

special session called November 1993. In adopting the substantial

amendments to chapter 440 contained in Laws of Florida 93-415,

the Legislature made numerous findings. Among the findings by

the Legislature were “that there is financial crisis in the workers’

compensation industry” and that “the magnitude of these

compelling economic problems demands immediate, dramatic, and

comprehensive legislative action.” Id. If toll means suspend, as

the majority decides, then per section 440.19(2) every “[p]ayment

of any indemnity benefit or the furnishing of remedial treatment”

suspends the limitation period for one year. In most cases the

limitations periods may be extended for a great many years. It

would be odd if in the midst of a crisis in the workers’ compensation

industry, the Legislature intended to greatly extend the statute of

limitations for claims.

To properly calculate suspension of time under the majority

opinion’s new system will require keeping track of multiple timers.

See Ortiz v. Winn-Dixie, Inc., 361 So. 3d 889, 893 (Fla. 1st DCA

2023), opinion superseded on reh’g, 402 So. 3d 301 (Fla. 1st DCA

2024). This will be burdensome for the parties and judges.

Consider a simplified application of the multiple timer system to

the facts here:

Event Date Multiple timer Previous

suspension extension

method method

Industrial 9/30/2021 Start of two-year Start of SOL.

Accident: statute of § 440.19(1)

limitations (SOL)

clock. § 440.19(1)

27

First 10/2/2021 Applying tolling

treatment: in § 440.19(2)

suspends the

limitation period

one year. Only

three days have

run on SOL two-

year clock.

10/1/2022 Suspension

period that

started 10/2/2021

ends. Two-year

SOL clock starts

running again.

Last 1/13/2023 Applying tolling

indemnity in § 440.19(2)

benefit: suspends

limitation period

one year. 107

total days have

run on SOL

clock.

§ 440.19(1).

Last provision 1/26/2023 SOL suspended

of treatment since 1/13/2023.

Another year

suspension added

by tolling under

§ 440.19(2). So

SOL currently

suspended for

one year and 352

days.

9/30/2023 Ends the two-

year

limitation

period in

§ 440.19(1).

SOL has run

but is tolled

28

meaning

extended.

1/26/2024 Ends one-year

extension

from last

provision of

treatment on

1/26/2023

provided by

§ 440.19(2).

Tolling has

expired.

First petition 6/13/2024 Timely. Time barred.

for benefits

1/12/2025 Three suspension

periods from

payment of

indemnity

benefit and

provision of

treatments end.

SOL clock

resumes running.

Will end

9/27/2026 if no

further

suspensions.

Using the multiple timer suspension method, the limitation

period for Estes is more than two and a half years longer than

using the extension method that we have used for over 25 years

per Philip, 746 So. 2d at 1181–82, and Best, 728 So. 2d at 1188.

But the calculations in the above chart are an oversimplification

since each “indemnity benefit or the furnishing of remedial

treatment, care, or attendance” would add another year of

suspension to the limitation period under the majority opinion’s

multiple clock method. The record shows that the E/C provided

payments for treatment well over 150 times for Estes. Reading toll

as suspend and applying all of section 440.19(2) would in effect

29

eliminate the application of the statute of limitations here by

providing over 150 separate one-year suspensions of the timer.

But even if only one suspension period applies, the majority

opinion’s multiple timer method will be difficult to apply. The

approach that the majority adopts was first proposed not by any

party, but by then Judge Tanenbaum in Ortiz v. Winn-Dixie, Inc.

361 So. 3d at 893–94, opinion superseded on reh’g, 402 So. 3d at

302. 2 He explained the scheme as follows:

Imagine a two-year master countdown timer starting to

run on the date of the accidental injury, as we just

described. Once the employee files a petition (like Ortiz

presumably did in 2003), that two-year timer is stopped

with respect to the claim or claims raised therein as they

await administrative disposition. Consider that

stoppage, though, as if it were a split time—stoppage only

with respect to that original PFB. The master timer

nevertheless continues counting down with respect to any

later claim arising out of the same accident. The master

timer then stops counting down each time the employer

furnishes a benefit pursuant to the original PFB. When

that happens, a separate tolling timer starts counting

down instead. If, while the tolling timer is running, the

employer furnishes another benefit (either an indemnity

payment or some care or treatment), the timer resets to

one year and starts counting down again.

By the very nature of tolling (defined above in the

margin), the limitation timer and the tolling timer run in

opposition to each other: They cannot both run at the

same time. That means as the tolling timer is running,

the limitation timer is stopped with whatever time was

2 An appellate court may “take judicial notice of their own

records.” Hillsborough Cnty. Bd. of Cnty. Comm’rs v. Pub. Emp.

Rel. Comm’n, 424 So. 2d 132, 134 (Fla. 1st DCA 1982). The

claimant in Ortiz did not argue that toll in section 440.19(2) meant

suspend or that our line of cases from Best and Philip interpreting

section 440.19(2) should be overruled.

30

remaining when the tolling timer started. When the one-

year tolling timer reaches zero and has not been reset by

the employer’s furnishing of another benefit, the master

two-year limitation timer starts counting down again

from where it left off. Until a point is reached where both

timers reach or remain at zero together (that is, time has

run out on both timers simultaneously), the one-year

timer can continue to be reset and run for as long as the

employee continues under an award of benefits.

Ortiz, 361 So. 3d at 893.

Ortiz moved for rehearing. The E/C in Ortiz, which had

prevailed in the initial opinion, also argued that rehearing should

be granted, stating in part:

The undersigned attorney, a board-certified workers’

compensation expert with thirty-three years of

experience, cannot apply what has been written by the

Court. For the first time, the Court has created the

master timer, the tolling timer, and the limitation timer,

each of which may oppose or defeat the other and that are

subject to being reset. This new paradigm, which

requires a exceedingly complex factual and legal analysis,

is inconsistent with the Legislature’s express intent that

the workers’ compensation system be “efficient and self-

executing.” Section 440.015, Fla. Stat. The law is

intended to be applied in a manner “which facilitates the

self-execution of the system and the process of insuring

(sic) a prompt and cost-effective delivery of payments.”

Id.

The court in Ortiz then withdrew its opinion and issued a new

opinion on rehearing in which the majority there did not adopt the

multiple timer system. 402 So. 3d at 302–11. A special

concurrence continued to argue for its adoption. Ortiz, 402 So. 3d

at 312 (Tanenbaum, J., specially concurring). Today the majority

opinion adopts this multiple timer system despite the criticism

from even the party that initially prevailed using that system in

Ortiz.

31

It would be much simpler for the participants in the workers’

compensation system if we continued to use the extension method

that has been in effect for over 25 years. The last date that the

E/C supplied a benefit to a claimant is easy to find, making the

limitation period in section 440.19(1) and tolling in section

440.19(2) easy to apply using our established extension method.

See Best, 728 So. 2d at 1188 (“A petition is timely if filed within

two years of the date of accident or, even thereafter, if filed within

one year of the last date the petitioner received medical treatment

or indemnity benefits.”).

Finally, a word on stare decisis. Even if the more common use

of the word toll means suspend, we should apply stare decisis to

keep the definition of toll in section 440.19(2) as meaning extend.

“[C]onsiderations of stare decisis weigh heavily in the area of

statutory construction” since the legislative branch can alter a

court’s “interpretation of its legislation.” Illinois Brick Co. v.

Illinois, 431 U.S. 720, 736 (1977) (citations omitted). The

Legislature has had decades to amend section 440.19(2) to change

our holdings in Best and Philip if it wished but has not done so.

I recognize that following the decision in State v. Poole, 297

So. 3d 487 (Fla. 2020), the doctrine of stare decisis has lost some of

its force under Florida law. “But once we have chosen to reassess

a precedent and have come to the conclusion that it is clearly

erroneous, the proper question becomes whether there is a valid

reason why not to recede from that precedent.” Id. at 507. The

Supreme Court in Poole answered its question by stating, “The

critical consideration ordinarily will be reliance. It is generally

accepted that reliance interests are ‘at their acme in cases

involving property and contract rights.’” Id. (citing Payne v.

Tennessee, 501 U.S. 808, 828 (1991)).

If toll in section 440.19(2) means suspend, and if suspension

applies each time an E/C provides “any indemnity benefit or the

furnishing of remedial treatment, care, or attendance,” then many

limitations periods will be revived in cases where an E/C thought

they had run long ago. “Once the defense of the statute of

limitations has accrued, it is protected as a property interest just

as the plaintiff’s right to commence an action is a valid and

32

protected property interest.” 3 Wiley v. Roof, 641 So. 2d 66, 68 (Fla.

1994). As a protected property right, reliance interests are at their

highest, as the Florida Supreme Court noted in Poole. 297 So. 3d

at 507. So stare decisis should apply to maintain that reliance

interest.

In conclusion, we should not be considering the tolling

provisions in section 440.19(2) because this case concerns

compensability. But even if we are going to apply tolling here, for

the above reasons we should not recede from our precedent

defining it as extend. I respectfully dissent from the majority’s

decision to do so.

M.K. THOMAS, J., dissenting.

I respectfully dissent from the majority opinion that the PFB

is not barred by the statute of limitations (SOL) set forth in section

440.19, Florida Statutes (2021). On this record, we are compelled

to affirm.

Estes stipulated below that the PFB raised an “issue of

compensability,” without limiting or qualifying language. This

unbounded stipulation disqualified her from taking advantage of

the tolling provision of section 440.19(2), Florida Statutes (2021).

Her own stipulation means she cannot argue the opposite now—

that the PFB did not raise compensability—so as to benefit from

the tolling provision of 440.19(2). But even if Estes is not bound by

her stipulation and the tolling provision is properly before us, the

majority opinion 1) misconstrues “compensability” contrary to

precedent of this Court and fails to recognize the critical

distinction between the SOL as a bar to filing PFBs versus

compensability as a substantive legal determination; and 2)

erroneously redefines “toll” in section 440.19(2), negatively

impacting the self-executing nature of the workers’ compensation

system. Contrary to the majority’s recognition that in 1994 the

Legislature “took a stricter tolling approach,” “tightened the

3 I therefore respectfully disagree with the majority opinion

that application of the statute of limitations is merely a procedural

issue not implicating reliance interests.

33

statute of limitations provision,” and “reined in a previously more

claimant-friendly regime,” its redefinition of “toll” does the

opposite. The new “toll” effectively dissolves the SOL—expanding

the PFB filing window and setting forth an over-engineered

method of calculation.

Stipulation—PFB Raises An “Issue of Compensability”

The Employer/Carrier (E/C) accepted Estes’s 2021 work

accident as compensable and provided indemnity and medical

benefits. But two years later, the E/C denied her request for

benefits related to right knee complaints. As a result, Estes filed a

PFB specifically raising the issue of “compensability of her left

knee, right knee, and right wrist injuries,” among a litany of other

claims. The E/C defended by asserting the PFB was barred by the

SOL.

Here is the relevant timeline:

9/30/2021 Date of accident; E/C accepted the accident as

compensable and provided benefits for left knee, left

wrist, and right knee injuries.

1/26/2023 Estes’s last receipt of workers’ compensation benefits.

2/08/2023 E/C filed a formal Notice of Denial asserting the work

accident was no longer the major contributing cause

(MCC) of the right knee condition and no further

benefits or treatment would be provided.

6/13/2024 Estes filed a PFB requesting indemnity and medical

benefits from the date of accident forward, specifically

raising “compensability of claimant’s left knee, right

knee and right wrist injuries”; financial responsibility

of further medical care; authorization of doctors to

treat the injuries, to include the denied right knee

injury and indemnity benefits; and other claims.

6/17/2024 E/C filed Response to PFB, raising SOL defense as a

bar to Estes’s claims.

34

10/2/2024 Estes moved to bifurcate the merits hearing, certifying

that the PFB asserted an issue of compensability.

10/2/2024 JCC issued an Order Granting Claimant’s Agreed

Motion to Bifurcate Issues for Merit Hearing, stating

that “Should the claim be determined compensable, I

find that the determination of the exact nature and the

amount of the benefits due to [Estes] will require

substantial expense and time for all parties. Florida

Rule of Appellate Procedure 9.180(b)(1)(C). . . . The

12/10/24 Final Merit Hearing will only address the

Employer/Servicing Agent’s defenses that [Estes’s]

claims are barred by the Statute of Limitations. . . .

Jurisdiction is reserved on the remaining issues

claimed in the petition for benefits filed on 6/13/24 for

a Final Merit Hearing at a later date, if required.”

10/14/2024 Uniform Pre-Trial Stipulation filed, documenting that

the compensability issue was raised. E/C denied

compensability of the right knee condition on the

grounds that the exacerbation period of pre-existing

condition had ended, the accident was no longer the

MCC of the need for treatment, and the SOL barred

all further benefits for all injuries claimed.

12/26/2024 In the “Bifurcated Final Order,” the JCC granted the

E/C’s defense that Estes’s claims were barred by the

SOL, denied her claims for attorney’s fees, and noted

“[Estes’s] 6/13/24 Petition for Benefits is hereby

dismissed with prejudice.” (Emphasis added.)

1/3/2025 Estes moved for rehearing, asserting for the first time

that the JCC should not have used against her on the

merits her stipulation that the PFB asserted an issue

of compensability in support of her request for a

bifurcated hearing. The JCC denied the motion.

1/13/2025: Estes filed her Notice of Appeal, attaching the

“Bifurcated Final Order.”

35

Estes’s choice to bifurcate her claims is a legitimate

procedural option that splits the merits hearing into two phases.

At the initial merits hearing (phase I), only the issue of

compensability is litigated, and the JCC reserves jurisdiction over

all remaining claims for specific benefits. If the JCC determines

the issue of compensability in favor of the claimant in phase I, the

reserved claims are litigated at a phase II hearing. 1

Electing a bifurcated litigation process is voluntary. It

determines compensability sooner, which dictates whether it is

then necessary to determine entitlement to specific benefits. The

split process is attractive because it can avoid costly depositions

and other discovery required to parse out entitlement to the

benefits reserved for phase II.

As a prerequisite for using the bifurcated hearing option, the

party (here Estes) must stipulate that the PFB raises an “issue of

compensability.” Additionally, a party may appeal the phase I

compensability order “provided that the order expressly finds an

injury occurred within the scope and course of employment and

that claimant is entitled to receive causally related benefits in

some amount, and provided further that the lower tribunal

certifies in the order that determination of the exact nature and

amount of benefits due to claimant will require substantial

expense and time.” Fla. R. App. P. 9.180(b)(1)(C) 2; see also

1 In 2003, the 60Q rules (Chapter 60Q-6, Florida

Administrative Code) replaced the old Florida Rules of Workers’

Compensation Procedure. This change resulted from amendment

to section 440.45, Florida Statutes, shifting rule-making authority

in workers’ compensation from the Florida Supreme Court to the

Division of Administrative Hearings (DOAH). Bifurcated hearings

are available pursuant to the case-management authority granted

to Judges of Compensation Claims (JCC) under Florida

Administrative Code Rule 60Q-6.113 and section 440.25(4)(d),

Florida Statutes.

2 Rule 9.180(b)(1)(C) permits an appeal of a phase I bifurcated

hearing order if the JCC finds an accident occurred within the

course and scope of employment, benefits are due of some nature,

and that determination of those benefits will require substantial

36

Jacksonville Sheriff’s Off./City of Jacksonville Risk Mgmt. v.

Smith, 66 So. 3d 410, 410 (Fla. 1st DCA 2011) (dismissing the

appeal of a nonfinal order rendered in phase I of a bifurcated

merits hearing for lack of jurisdiction because it did not dispose of

all matters presented to the JCC for adjudication and did not

include the certification required under rule 9.180(b)(1)(C)); Sun

Sentinel & Tribune Co. v. Petrovich, 744 So. 2d 1056, 1056 (Fla. 1st

DCA 1999); Cadco Builders, Inc. v. Roberts, 712 So. 2d 457, 458

(Fla. 1st DCA 1998); Nape v. Mark V Const., 696 So. 2d 1233,

1234–35 (Fla. 1st DCA 1997).

The JCC determined that the PFB was barred by the SOL.

Accordingly, he dismissed the PFB with prejudice, including the

claims reserved for phase II. Thus, the order was final and

appealable under rule 9.180(b)(1). If in a bifurcated process, the

phase I order determines compensability in favor of the claimant,

and the PFB remains viable with specific benefits reserved for

phase II, an E/C may appeal such an interlocutory order under rule

9.180(b)(1)(A), (B), or (C).

However, because the majority opinion redefines an “issue of

compensability” as only compensability of the accident itself, this

bifurcated hearing process will no longer be available for litigation

of SOL defenses, among others. Regardless of the subsection of rule

9.180 supporting the appeal, it remains true that it resulted from

a bifurcated process based on Estes’s stipulation that the PFB

raised an issue of compensability. Florida courts have consistently

recognized the general rule that “[a] stipulation properly entered

into and relating to a matter upon which it is appropriate to

stipulate is binding upon the parties and upon the Court.” Turner

v. Miami-Dade Cnty. Sch. Bd., 941 So. 2d 508, 509 (Fla. 1st DCA

2006) (quoting Gunn Plumbing, Inc. v. Dania Bank, 252 So. 2d 1,

expense and time. Accordingly, orders from a phase I hearing that

do not find compensability would not be appealable, nonfinal

orders under this subsection. Rather, an order denying

compensability would automatically convert the phase I order into

a final, appealable order under rule 9.180(b)(1).

37

4 (Fla. 1971)). This Court in Myrick v. Gillard Grove Service, 577

So. 2d 655, 656 (Fla. 1st DCA 1991), specifically held that when a

party stipulates to an issue like compensability, it “waive[s] the

right to make compensability an issue.” We reemphasized this rule

in Turner, 941 So. 2d 508. In Turner, accepting compensability

“relieved claimant of any obligation to establish compensability”

and “precluded the employer and servicing agent from attempting

to establish the contrary until and unless that stipulation was set

aside.” Id. at 509.

The binding effect of stipulations extends through appeal, and

parties cannot raise issues on appeal that were resolved or set by

stipulation below. See Burnsed v. State, 743 So. 2d 139, 139–40

(Fla. 2d DCA 1999) (“Where appropriately made, stipulations are

binding not only upon the parties but also upon the trial and

appellate courts.”). As we have declared, parties cannot escape

stipulations through “mere change of litigation strategy” and “it is

never a court’s function to rewrite the terms of an agreement to

make it more reasonable.” Marin v. Aaron’s Rent to Own, 53 So. 3d

1048, 1050 (Fla. 1st DCA 2010) (citing Churchville v. GACS Inc.,

973 So. 2d 1212, 1216 (Fla. 1st DCA 2008)).

Estes should be bound by her stipulation below and precluded

from application—and therefore analysis—of the tolling provision

of section 440.19(2). The binding nature of such characterizations

prevents parties from manipulating procedural rules by taking

inconsistent positions based on strategic advantage. See Sullivan

v. NUC02, LLC/Broadspire, 308 So. 3d 659, 664 (Fla. 1st DCA

2020) (stating that parties are bound by stipulations even if later

evidence would support a different position); Wren v. DMS, Inc.,

821 So. 2d 458, 458–59 (Fla. 1st DCA 2002) (holding the JCC erred

when it addressed the issue of compensability when the parties

had already resolved the question).

This principle is bolstered by the doctrine of election of

remedies, which concerns the choice between two or more co-

existent and inconsistent remedies that arise out of the same set

of facts. Once elected, the remedy bars a later inconsistent

position. Although the doctrine of election of remedies is a

substantive legal doctrine, the election occurs at a procedural

juncture if it reflects a true election between inconsistent

38

substantive remedies. See Liddle v. A.F. Dozer, Inc., 777 So. 2d

421, 421–22 (Fla. 4th DCA 2000) (involving an election of remedies

at a procedural juncture of the trial); Morales v. Zenith Ins. Co.,

152 So. 3d 557, 564 (Fla. 2014) (noting that settlement of the

workers’ compensation case is an election of remedies); see also

§ 631.929, Fla. Stat. (instructing that if workers’ compensation

accident occurred before 1994 and the employer’s insurance is

insolvent, claimant may elect to pursue benefits from the Workers’

Compensation Guaranty Association and forego seeking them

from the employer or insolvent fund); § 440.11(2), Fla. Stat. (under

the statute, when employer has no coverage, the claimant may

choose between civil personal injury action or benefits under

Chapter 440). The choice of a bifurcated hearing process in

workers’ compensation requires a stipulation that closes avenues

of relief. Estes asserted a blanket stipulation that the PFB raised

an “issue of compensability” with no limitation of any kind. The

stipulation should foreclose her ability to argue the opposite on

appeal.

Contrary to our own precedent, the majority improperly

allows Estes to escape her stipulation and raise new arguments on

appeal that were not preserved below. Preservation is

fundamental. “In order to be preserved for further review by a

higher court, an issue must be presented to the lower court and the

specific legal argument or ground to be argued on appeal or review

must be part of that presentation if it is to be considered

preserved.” Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985). We

strictly enforce the rules of preservation. See Rosier v. State, 276

So. 3d 403, 406–07 (Fla. 1st DCA 2019) (emphasizing the necessity

that parties preserve specific issues and arguments as a

prerequisite to appellate review). We consistently make it clear

that counsel must preserve any issue bearing on disposition, or it

is waived. See, e.g., Heart of Live Oak, Inc. v. State of Fla., Off. of

Fin. Regul., 196 So. 3d 1290, 1290–91 (Fla. 1st DCA 2016) (noting

it is well-established that an issue must be raised in the

appropriate administrative proceeding to be preserved for appeal).

In the order denying Estes’s motion for rehearing, the JCC

ruled that rehearing was too late for Estes to retreat from her

stipulation and assert an entirely new legal theory after not

prevailing at the merits hearing. The JCC’s ruling is reviewed only

39

for abuse of discretion. See E. Airlines v. Griffin, 654 So. 2d 1194,

1195 (Fla. 1st DCA 1995); 2K S. Beach Hotel, LLC v. Mustelier, 291

So. 3d 158, 160 (Fla. 1st DCA 2020). The JCC did not abuse his

discretion in holding Estes to her stipulations below. Estes did not

address the abuse of discretion review on appeal. Because Estes

stipulated below that the PFB raises an issue of compensability,

she should be precluded from arguing to the contrary on appeal.

Accordingly, we should affirm the JCC’s order finding the PFB is

barred by section 440.19(1).

“Issue of Compensability”

The majority does not bind Estes to her stipulation below, so

we move now to the interpretation of the tolling provision itself.

The provision specifically excludes three issues from its

application: “compensability, date of maximum medical

improvement, or permanent impairment.” § 440.19(2), Fla. Stat.

Of the three exclusions, two are relevant here: compensability and

permanent impairment. The majority concludes that the PFB does

not raise an issue of compensability, and the tolling provision

applies to the SOL analysis here because “the compensability of

Estes’s workplace injury was settled long ago and isn’t at issue.”

Quoting Checkers Restaurant v. Wiethoff, 925 So. 2d 348, 349–50

(Fla. 1st DCA 2006), the majority cautions that “[w]e must be

careful not to ‘[blur] the distinction between compensability and

entitlement to benefits.’” But the majority’s reasoning

misconstrues the distinction and confuses the concept of

compensability generally with compensability in the context of a

procedural time bar.

Initially, the tolling provision of the SOL does not apply to

issues of compensability. See § 440.19(2), Fla. Stat. The SOL is a

procedural concept establishing a window of time within which a

PFB must be filed. Compensability, by contrast, is a substantive

legal determination as to whether an injury is covered under

chapter 440, Florida Statutes. The SOL does not determine

compensability; it only sets a time limit for the filing of a PFB. If a

PFB is timely filed, the E/C may still dispute compensability, even

years after the accident (if the procedural posture allows). Because

compensability is a substantive defense, it is not extinguished by

a time limit alone once a valid claim is pending.

40

Likewise, even if an E/C provides medical or indemnity

benefits for more than two years, such payment does not

automatically establish compensability. “Causation, in workers'

compensation, is established by MCC, and MCC is a concept that

can apply at two different stages of a determination of entitlement

to benefits: work must be the MCC of a compensable injury, and

also—where (as here) there is a preexisting condition to the right

knee—the compensable injury must be the MCC of the need for

treatment.” See Babahmetovic v. Scan Design Fla. Inc., 176 So. 3d

1006, 1008 (Fla. 1st DCA 2015).

Until now, this Court declared that compensability

encompasses more than whether an accident occurred within the

course and scope of employment. We recently acknowledged in

another SOL case that the term “compensability” also includes

injuries or conditions arising post-accident. See Ortiz v. Winn-

Dixie, Inc., 402 So. 3d 301, 308 (Fla. 1st DCA 2024) (“There are few

facts we cannot overlook. First, the carrier long ago accepted

compensability of Ortiz’s kidney injury, even stipulating to that

compensability in this case.” (emphasis added)). In Ortiz, the

accident itself had long ago been accepted as compensable. The

issue later before the JCC was compensability of an ongoing

kidney condition. Id. at 302–03.

This Court has also consistently recognized a broader

definition of compensability in cases involving the “120-day rule”

of section 440.20(4), Florida Statutes. Under this provision, a

carrier may investigate an employee’s entitlement to benefits, but

must “admit or deny compensability within 120 days after the

initial provision of compensation . . . .” § 440.20(4), Fla. Stat.

(emphasis added). This Court has declared that the provision is

not limited to the initial request for benefits following an accident.

Rather, it may also be invoked when a new injury or condition later

arises and treatment is requested. See Sierra v. Metro. Protective

Servs., 188 So. 3d 863, 866–67 (Fla. 1st DCA 2015) (while accident

was accepted as compensable, the parties litigated whether later

arising PTSD was a compensable condition); McIntosh v. CVS

Pharmacy, 135 So. 3d 1157, 1159 (Fla. 1st DCA 2014) (explaining

that the 120-day pay-and-investigate period relates to

compensability of both the initial accident and to a specific

41

condition); Bynum Transp., Inc. v. Snyder, 765 So. 2d 752, 754 (Fla.

1st DCA 2000) (holding section 440.20(4) applies to any claim for

compensability of any injury made following date of accident, not

just the first claim).

The majority’s new and narrow interpretation of

compensability is dispelled by the operation and language of the

tolling provision itself. As its opening phrase instructs, section

440.19(2) only applies if benefits have been paid: “Payment of any

indemnity benefit or the furnishing of remedial treatment, care, or

attendance . . . . shall toll the limitations period set forth above for

1 year from the date of such payment.” § 440.19(2), Fla. Stat. If no

benefits have ever been paid following a work accident, the tolling

provision is never triggered. Accordingly, to define an “issue of

compensability” as limited to only that of the accident itself would

render the exclusion meaningless.

Other provisions of chapter 440 establish that compensability

is not limited to the initial determination of compensability of the

accident itself. Rather, it has a twofold application. It also applies

to injuries or conditions that may arise post-accident. The term

“compensable” is used in chapter 440 no less than forty times and

“compensability” approximately seventeen times. Many of these

provisions underscore the same principle: compensability is not

limited to the mechanism of the accident itself but must be

evaluated anew with each distinct injury or complaint. See, e.g.,

§ 440.09(1), Fla. Stat. (“The employer must pay compensation or

furnish benefits required by this chapter if the employee suffers an

accidental compensable injury or death arising out of the work

performed in the course and scope of employment. The injury, its

occupational cause, and any resulting manifestations or disability

must be established to a reasonable degree of medical certainty,

based on objective relevant medical findings, and the accidental

compensable injury must be the major contributing cause of any

resulting injuries.” (emphasis added)); § 440.13(1)(d), Fla. Stat.

(defining compensable as “a determination by a carrier or judge of

compensation claims that a condition suffered by an employee

results from an injury arising out of and in the course of

employment” (emphasis added)); § 440.02(1), Fla. Stat. (“[I]f a

preexisting disease or anomaly is accelerated or aggravated by an

accident arising out of and in the course of employment, only

42

acceleration of death or acceleration or aggravation of the

preexisting condition reasonably attributable to the accident is

compensable, with respect to any compensation otherwise payable

under this chapter.” (emphasis added)); § 440.093(2), Fla. Stat.

(“Mental or nervous injuries occurring as a manifestation of an

injury compensable under this chapter shall be demonstrated by

clear and convincing medical evidence . . . .”); § 440.20(4), Fla. Stat.

(“Additionally, the carrier shall initiate payment and continue the

provision of all benefits and compensation as if the claim had been

accepted as compensable, without prejudice and without admitting

liability.”); § 440.192, Fla. Stat. (“A carrier that does not deny

compensability in accordance with s. 440.20(4) is deemed to have

accepted the employee’s injuries as compensable, unless it can

establish material facts relevant to the issue of compensability

that could not have been discovered through reasonable

investigation within the 120-day period . . . .”). Clearly, the

Legislature intended that the term “compensability,” if not

expressly qualified in context, be multi-faceted.

The PFB not only raised compensability, but also a claim for

“Permanent Impairment or Wage Loss” and “permanent

impairment benefits,” among many other claims. Such a claim is

specifically excluded from the tolling provision of section 440.19(2).

Therefore, the issue of permanent impairment would

independently preclude application of the tolling provision to the

SOL analysis here.

The three issues of compensability, MMI, and permanent

impairment are excluded from the tolling provision because the

SOL is triggered and controlled by specific statutory events and

not by resolution of medical or legal disputes. This is where we

must distinguish between the SOL as a bar to filing claims and the

concept of compensability. The SOL is extended or suspended only

by payment of benefits or the filing of a PFB. Disputes about

compensability, MMI, or impairment rating do not stop the timer.

If an E/C denies compensability, the claimant must file a PFB

within the statutory period. The mere existence of a dispute does

not extend the filing deadline. This is logical because allowing a

denial to toll the statute would undermine the legislative intent of

finality and certainty. For example, MMI is a medical analysis and

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assignment. A claimant cannot sit back and wait to reach MMI

before filing a PFB for MMI to be established or for impairment

benefits to be paid. The statute runs independently of that medical

milestone. The SOL is paused only by specific statutory events and

does not pause just because compensability is denied or because a

claimant has not reached MMI or received an impairment rating.

Claimants must actively protect their rights by timely filing a PFB.

See Solar Pane Insulating Glass, Inc. v. Hanssen, 727 So. 2d 961

(Fla. 1st DCA 1998).

The SOL is a time bar for filing a PFB. It is not concerned with

issues of legal dispute but the lapsing of time. The Legislature

provided a reminder that issues of compensability, MMI, and

permanent impairment (all requiring legal resolution to result in

entitlement) are excluded as tolling agents. Only payment dictates

SOL calculation (regardless of why paid). However, we must be

mindful that the excluded issues do not represent categories in

which benefits were never paid. For example, new injuries or

newly arising conditions or denials of compensability based on

MCC are all included in “issues of compensability” because both

result in scenarios of nonpayment of benefits, either initially or

later in the claim. Again, the core of SOL is payment. The SOL is

a time bar that is altered by payment, when made or suspended—

not by a legal determination of entitlement.

Here, the accident was initially accepted as compensable,

benefits provided, and the benefits were terminated. It matters

not, from a SOL-clock perspective, why the benefits stop. It

matters only that the nonpayment prompts the clock to start. The

filing of a PFB then stops it. The SOL runs independently of the

reasoning behind payment or denial. The burden remains on the

claimant to protect their rights by timely filing. Once Estes’s

benefits ceased on January 26, 2023, the time clock began to tick

again. The PFB at issue was untimely because it was filed more

than two years after the accident and more than one year after last

provision of benefits. The JCC correctly determined that the PFB

is barred by the SOL.

Ultimately, even if Estes is not bound by her stipulations

below that the PFB raised an issue of compensability, an

independent review of the PFB confirms it does raise an issue of

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compensability as contemplated by the tolling provision.

Accordingly, the tolling provision does not apply, and the PFB is

barred. This conclusion is compelled regardless of whether “toll” is

defined as suspending or extending. In other words, the language

of section 440.19(2) precludes its application in this case because

an issue of compensability was raised (and caused benefits to cease

thereby activating the SOL). The legal issue of the definition of

“toll” is irrelevant to the SOL analysis here. The tolling provision

does not apply regardless of how “toll” is interpreted, so we have

no cause to define it and must leave it for another day.

Definition of “Toll” in Section 440.19(2)

I fully join Judge Bilbrey’s thoughtful and well-reasoned

dissent. The majority has redefined the term “toll” in section

440.19(2), which we cannot do without receding from precedent.

See Sanchez v. Am. Airlines, 169 So. 3d 1197, 1198 (Fla. 1st DCA

2015); Varitimidis v. Walgreen Co./Sedgwick Claims Mgmt.

Servs., Inc., 58 So. 3d 406, 407–08 (Fla. 1st DCA 2011);

Medpartners/Diagnostic Clinic Med. Grp., P.A. v. Zenith Ins. Co.,

23 So. 3d 202, 204, 206 (Fla. 1st DCA 2009); Orange Cnty. Sch. Bd.

v. Best, 728 So. 2d 1186, 1188 (Fla. 1st DCA 1999); Claims Mgmt.,

Inc. v. Philip, 746 So. 2d 1180, 1181 (Fla. 1st DCA 1999).

The majority redefines the term “toll” to mean “suspend.” In

support, it heavily relies on the language of 440.19(5), Florida

Statutes. But this reliance is misplaced because subsection (5)

addresses application of the SOL to individuals who are mentally

incompetent or are minors. Largely, the text is cited in support of

redefining “toll” to mean “suspend” because the provision instructs

a specific stopping and starting of the clock and a bank of time, so

to speak, while the individual is without a guardian. The

subsection applies to a specific class of persons. This case does not

involve a guardian.

Construed in context, subsection (5) announces a vastly

different treatment for certain qualifying individuals only and

adds a critical distinguishing prerequisite. The subsection

provides, “If a person who is entitled to compensation under this

chapter is mentally incompetent or a minor, the limitations period

is tolled while that person has no guardian . . . .” § 440.19(5), Fla.

45

Stat. (emphasis added). For this application of the SOL time clock,

the person must meet two criteria: 1) be entitled to compensation;

and 2) be mentally incompetent or a minor. Entitlement means

there is a proven right to the specific benefit. For example, a

claimant may be eligible for benefits but has not proven

entitlement. See Guglielmo v. State of Fla.-DOC Zephyrhills

CI/Div. of Risk Mgmt., 418 So. 3d 656, 667 (Fla. 1st DCA 2025);

ESIS/ACE Am. Ins. Co. v. Kuhn, 104 So. 3d 1111, 1113 (Fla. 1st

DCA 2012). It requires that a legal determination as to entitlement

to benefits has occurred. Accordingly, this subsection is inapposite,

and no legitimate legal basis exists to apply it to the other

subsections and, more specifically, to subsection (2).

I disagree with the notion that the Florida Supreme Court in

Hankey v. Yarian, 755 So. 2d 93 (Fla. 2000), unequivocally

announced a universal definition of “toll” as “to suspend.” The

language of Hankey is intentional and repetitive in emphasizing

that its holding is based on the facts of that case and only in the

context of section 766.106, Florida Statutes, a medical malpractice

statute. Further, the opinion highlighted that its definition was

limited to “toll” as used in section 766.106(4), not a universal

application. The high court also regarded provisions of section

766.106 to provide extensions of the SOL such as paying the court

filing fee. Id. Hankey did not declare that “toll” means “suspend”

in all statutory settings. We previously recognized Hankey’s

limited application in Patrick v. Lionel Gatien, D.O., 65 So. 3d 42

(Fla. 1st DCA 2011).

The “two clock or two timer method” now adopted by the

majority is aptly named. It is a reminder that adjusters, claimants,

and attorneys will require not one but two “clocks” for every

workers’ compensation case. An actuarial degree or an “on call”

accounting firm will be required to calculate time clock status. To

this already troubling picture, add in the requirement of section

440.19(4) that the adjuster must assert the SOL defense in the first

responsive pleading to a PFB or the defense is waived. Now,

consider that the adjuster is to respond to the PFB within fourteen

days of receipt. See § 440.192(8), Fla. Stat. Consider the heavy

caseload managed by individual adjusters. Lastly, imagine an

attorney explaining the SOL to a claimant and how to protect his

or her claim. It seems unworkable. And it will be.

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For twenty-six years, this Court has correctly defined “toll”

under section 440.19(2) as an extension. While I agree with the

majority that section 440.19 is not a model of clarity, we had its

interpretation right the first time. The redefined SOL “regime” will

prove to be operationally dysfunctional and administratively

overburdensome. Perhaps there is a basis for supreme court review

of this case, and the ship can be righted. Barring that, legislative

action will be necessary to restore a workable SOL in workers’

compensation cases.

“Setting Aside” A JCC Order

A trend emerged in this Court recently of “setting aside”

workers’ compensation orders (as opposed to reversing and

remanding). It began in Ortiz:

This disposition [setting aside], 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 (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

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administrative proceedings. See § 120.68(7), (8), Fla. Stat.

(referring to “affirm,” “set aside,” “remand,” “modify,” and

“ordering” further action as authorized remedies).

Ortiz v. Winn-Dixie, Inc., 402 So. 3d 301, 311 n.7 (Fla. 1st DCA

2024); see also, Fox v. Sarasota Cnty. Sch. Bd., 415 So. 3d 736, 738

(Fla. 1st DCA 2025); Girardin v. AN Fort Myers Imports, LLC, 403

So. 3d 255, 257 (Fla. 1st DCA 2025).

The rationale of “setting aside” JCC orders is that the Office

of the Judge of Compensation Claims (OJCC) sits in the executive

branch, and its orders are “matters of administrative law” that

have legal effect only within that branch, making judicial review a

purely statutory grant rather than an inherent appellate function.

See Art. V, § 4(b)(2), Fla. Const. Accordingly, the remedy

vocabulary of the Florida Administrative Procedure Act (APA) set

the framework for resolution of JCC orders on appeal. But this is

ill-conceived. Chapter 440 requires that appeals of workers’

compensation cases be treated differently than administrative

appeals. A workers’ compensation proceeding before a JCC is not

analogous with that of an administrative law judge (ALJ). Chapter

440 specifically dictates that the APA does not apply to workers’

compensation proceedings. See § 440.021, Fla. Stat. (exempting

workers’ compensation adjudications from chapter 120, stating “no

judge of compensation claims shall be considered an agency or a

part thereof”). Likewise, Chapter 120, Florida Statutes, provides

as follows: “[A] judge of compensation claims, in adjudicating

matters under chapter 440, is not an agency or part of an agency

for purposes of this chapter.” § 120.80(1)(b), Fla. Stat.

A technical importation of APA remedial vocabulary into the

workers’ compensation context reflects a misunderstanding of the

quasi-judicial nature of JCCs. The Legislature has been deliberate

that workers’ compensation adjudications operate under their own

self-contained procedural rules. Section 440.29(3), Florida

Statutes (2021) provides, “The practice and procedure before the

judge of compensation claims shall be governed by the rules

adopted by the Office of Judges of Compensation Claims.” See also

Sedgwick Claims Mgmt. Servs. v. Thompson, 419 So. 3d 1104, 1113

(Fla. 1st DCA 2025). Section 440.015, Florida Statutes, declares

the purpose of worker’s compensation as the “quick and efficient

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delivery of disability and medical benefits to an injured worker.”

Section 440.25, Florida Statutes, implements that purpose

through a bespoke set of hearing procedures, notice requirements,

and evidentiary standards that have no counterpart in chapter 120

and broadly mirror civil court procedure. These are not gap-fillers

borrowed from the APA.

JCCs issue final orders. ALJs issue recommended orders

subject to substantive agency revision under section 120.57(1)(l),

Florida Statutes. The APA’s remedial vocabulary—“set aside,”

“modify,” “remand”—is calibrated to that hierarchical

relationship: it preserves the agency’s ongoing policy authority

even after a court has reviewed its action. A court that “sets aside”

rather than “reverses” an agency order implicitly acknowledges

that the agency retains the power and discretion to act again

within its sphere. JCCs have no such supervising agency. No

executive body reviews JCC orders for policy consistency before the

order is issued. JCC order determinations are final adjudications

of private rights—specifically, whether a particular worker has a

compensable claim under section 440.09, Florida Statutes.

JCCs, unlike ALJs, litigate property rights. “An injured

employee’s right to receive workers’ compensation benefits is a

property right protected by procedural due process safeguards

including notice and an opportunity to be heard.” Isaac v. Green

Iguana, Inc., 871 So. 2d 1004, 1006 (Fla. 1st DCA 2004) (citing

Rucker v. City of Ocala, 684 So. 2d 836, 840–41 (Fla. 1st DCA 1996)

(“An injured employee’s right to receive workers’ compensation

benefits qualifies as such a property interest.”)). JCCs may litigate

property rights because the Legislature created workers’

compensation as a statutory substitute for common-law tort rights

and vested exclusive jurisdiction over those statutory rights to

JCCs, with appellate review by article V courts. This structure was

declared constitutional in Martinez v. Scanlan, 582 So. 2d 1167

(Fla. 1991). 3

3 ALJs are governed by the Division of Administrative

Hearings (DOAH) and appointed by the Chief ALJ. They serve as

career executive-branch adjudicators and are disciplined by the

Chief ALJ. JCCs, on the other hand, are governed by the OJCC.

They are appointed through a merit based executive process

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Borrowing APA remedial language imports a deference that

has no structural justification in the workers’ compensation

context. Section 440.271, Florida Statutes, grants this Court with

jurisdiction to hear “appeals” from JCC orders. Full stop. It does

not cross-reference chapter 120. It does not incorporate APA

remedial categories by reference. It does not instruct this Court to

treat JCC appeals as judicial review of executive agency action.

The rationale that the OJCC is nominally organized under the

executive branch and so the full range of appellate dispositions is

somehow unavailable or inapplicable is contrary to sections

440.021 and 120.80. Because JCC orders are reviewed by plenary

appeal pursuant to Florida Rule of Appellate Procedure 9.180, this

Court exercises full appellate authority—the same authority we

exercise over court judgments. There is no doctrinal rule requiring

“set aside” rather than “reverse.” Nothing in chapter 440 limits

this Court’s remedial authority to vacatur only. Function must

control over a label. The choice is functional, not jurisdictionally

constrained.

“Setting aside” an order means that the court nullifies,

vacates, or renders the order ineffective (as if it had never been

entered). It does not necessarily mean that the case is over but that

the order is undone and the issues may be reconsidered or reheard.

However, “set aside” requires the prior order to be treated as

though it never existed. The JCC begins anew—possibly to make

new findings or conduct a new merits hearing. Reversal does not

render the order a nullity. It declares it to be incorrect or explains

how the lower court or tribunal was wrong. Reversal most often

means a limitation to the existing record. However, vacatur may

result in no new evidence being considered or that a new hearing

is required and the record is open. A practical example spells out

the impact in workers’ compensation appeals: An employer asserts

a claimant misrepresented a prior condition, and the JCC denies

different from article V judges and ALJs. The Chief Financial

Officer (CFO) of Florida appoints JCCs. Then, they must be

retained every four years. JCCs are subject to the Code of Judicial

Conduct and disciplined by the OJCC and may be removed by the

CFO.

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benefits under section 440.105, Florida Statutes. If this Court

reverses on the basis that the evidence was legally insufficient to

prove all elements of defense, then the defense fails as a matter of

law, the JCC proceeds as though no misrepresentation defense bar

exists, and the claim proceeds to the merits. If we were to reverse

with directions to award benefits, the JCC must award benefits,

and litigation is effectively concluded beyond calculations of

benefits due. However, if the order is set aside or vacated because

of lack of notice that the E/C asserted a misrepresentation defense,

a new hearing is required, evidence may reopen, defense can be re-

litigated properly, and the E/C can rectify notice mistakes.

Because the order on appeal is “set aside” and treated as a nullity,

the matter begins anew. The due process issues resulting are

immeasurable.

Because of the piecemeal litigation of workers’ compensation

cases, finality and clarity are critical. When a JCC’s order is set

aside and rendered a nullity, it leaves the lower tribunal docket

with no technical resolution. Is the JCC to issue a status order to

document the determination of claims raised in the outstanding

PFBs that are the focus of the nullified order? What does this do to

SOL calculations (especially now with multiple time clocks), res

judicata analysis, and whether issues are ripe for adjudication?

Workers’ compensation is a statutory creation, and

adjudication of those statutory rights does not invade core article

V judicial power. That established, there is no authority depriving

this Court, which has exclusive jurisdiction over all workers’

compensation appeals, of the remedies of reversal and remand. As

the vacatur of the order on appeal renders it a nullity, on remand

the JCC is technically at liberty to set a new hearing, take

additional evidence, and litigation begins anew. Because this

Court is not bound by APA remedial options, the majority should

reverse and remand the order and not set it aside.

_____________________________

Randall T. Porcher of Morgan and Morgan, Tallahassee; Joseph

Bilotta of Vassallo, Bilotta & Davis, West Palm Beach, for

Appellant.

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

52