Disability Law

Carrier Waived Statute of Limitations Defense by Failure to Appear at 1997 Hearing

By David A. McCranie, Esq.

Batista v. Publix Supermarkets, Inc., decided on 10/22/2008, involved a statute of limitations question.  Under the pre-1994 version of the statute, a workers' compensation carrier waives any statute of limitations defense to which it might otherwise be entitled if it fails to assert that defense "at the first hearing of such claim in which all parties in interest are given reasonable notice and opportunity to be heard."  See §440.19(1)(a), Fla. Stat. (1986).  In Batista, the claimant had filed a petition for benefits in 1996.  At the same time he filed a request to produce and later, a motion to compel.  Notice of a hearing on the motion to compel was sent to the carrier's adjuster and to the employer in 1997, but neither appeared at the hearing.

The 1996 petition remained pending and was not heard until 2007, more than 10 years after it was filed.  At that time, the carrier appeared and asserted that the petition was barred by the statute of limitations because they had not paid any benefits on the claim since 1990, but the claimant argued that the carrier had waived its defense by its failure to assert it at the 1997 hearing on the motion to compel.  Was the hearing on the motion to compel the "first hearing" at which "all parties in interest [were] given reasonable notice and opportunity to be heard"?  The JCC said no, finding that the hearing on the 1997 motion to compel had been inadequately noticed.  But the First DCA reversed this decision, noting that the notice of hearing expressly provided that copies were sent to all parties.  Therefore, the court concluded, the statute of limitations did not bar the claim.

Note:  Under the current version of §440.19(4), Fla. Stat., the carrier waives its statute of limitations defense unless it "advances the defense. . . in its initial response to the petition for benefits."

Full post as published by Florida Workers’ Compensation Law Blog on October 23, 2008 (boomark / email).