September 29, 2022

Amy Siegel Oran Secures Pivotal Total Defense Win


Kelley Kronenberg Partner, Amy Siegel Oran, secures pivotal total defense win in a case limiting exceptions under the statute of limitations.  

In this case before Judge Daniel Lewis, an injured employee brought a claim for workers’ compensation benefits which was denied by the Employer/Carrier (“E/C”) based upon the Statute of Limitations. Accepting the affirmative defenses raised on behalf of the E/C, the judge ruled the Statute of Limitations (“SOL”) had run, forever barring additional claims or benefits.  

Under Chapter 440, a claim is barred unless it is brought within two years of the accident or one year of the last provision of benefits, whichever occurs last. In this case, the employee sustained a compensable work accident, with injuries to his hand, in March 2019. Claimant’s last date of medical treatment was October 28, 2020, the date on which Maximum Medical Improvement was assigned. Within a year, Claimant requested a one-time change in physicians; and, while the E/C authorized the alternate provider and paid for the initial appointment, Claimant never presented for care. The E/C last paid indemnity on February 9, 2021. A $2,000.00 advance was issued on June 4, 2021.  Corvel Adjuster Britney Lewis testified not only had Claimant been sent notice of his rights, but she had personally spoken to him at the inception of the case and explained, amongst other things, the Statute of Limitations, convincingly rebutting his protestations of not being advised. 

On April 5, 2022, Claimant filed his Petition for Benefits, the claims in which were denied on the basis more than a year had passed since the last provision of benefits. Claimant argued the SOL was tolled because payment was made to the alternate physician and the Carrier issued a $2,000.00 advance less than a year before the filing of his Petition. He also argued the E/C should be estopped from raising a SOL defense. 

The JCC disagreed with Claimant’s arguments and, in so doing, set forth the following: (1) advances are not compensation and do not constitute a provision of benefits so as to toll the SOL, (2) the SOL was not tolled by the payment to the authorized physician; that, in the absence of controversy regarding compensability or authorization, the date care was last furnished controls, and (3) Claimant could not prevail on estoppel as it was not asserted within the Pretrial Stipulation. The E/C also asserted a fraud defense and prevailed upon same; the JCC concluded Claimant had provided false testimony.  

The E/C prevailed on both affirmative defenses raised and, as a result, Claimant was barred from bringing further claims related to his work accident or from receiving any additional benefits.   


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