Cases

The claimant's attorney emailed the attorney for the employer/carrier requesting a one-time change in physicians.  The following day, a formal Petition for Benefits was filed.  In response to the email requesting the one-time change, the attorney for the employer/carrier authorized such.  In response to the Petition for Benefits filed, the employer/carrier denied the request for one-time change since the statute of limitations had run.  The question in this case is whether the employer/carrier was estopped in asserting the statute of limitations defense. Rulings on the statute of limitations are reviewed by competent substantial evidence as to the JCC's findings of fact and de novo as to the JCC's legal conclusions.  It was agreed in this case that the statute of limitations had run but it was asserted by the claimant's attorney that the employer/carrier was estopped in asserting the statute as a defense. 

There are two situations where the statute of limitations defense can be avoided:  1) where an employer/carrier fails to assert the statute of limitations as a defense in its initial response to a Petition for Benefits, and 2) where the employer/carrier is estopped from raising the statute of limitations defense.  Since in the proceedings before the JCC , the initial response to the Petition for Benefits was not challenged by the claimant's attorney, accordingly on appeal, the JCC's determination that the claimant failed to demonstrate estoppel pursuant to Section 440.19, F.S., was considered by the court.

To demonstrate estoppel, the claimant must show that: 1) the employer/carrier misrepresented a material fact; 2) the claimant relied on the misrepresented fact, and 3) the claimant changed his position to his detriment because of the misrepresentation.  Section 440.19(4) does not include a requirement of intent (i.e., where the employer/carrier misleads the claimant as to his or her rights or availability of workers' compensation, even unitentionally, resulting in the claimant's failure to file a timely claim, the employer/carrier may be estopped in denying benefits).

In this case, the claimant never alleged that he relied on any initial authorization for a one-time change in physician.  Accordingly, the JCC found that the claimant failed to prove estoppel.  There was no evidence in the record to show that estoppel existed.