Case Law Update December 2024
| Ortiz II v. Winn-Dixie, Inc. ___So.3d ___ (Fla. 1st DCA 12/23/24) Statute of Limitations/Tolling Bill Rogner The underlying case involved a claimant whose accident resulted in a kidney injury and subsequent kidney removal. She received authorized treatment with a urologist for years. She then saw a new urologist, who began billing her private insurance. When the claimant filed a PFB thereafter, the E/C asserted the incorrectly billed treatments were for non-accepted conditions (dysuria, UTIs and cystitis) and that the SOL ran because the last several visits had not been billed to the carrier and arguably were not related to the initial injury. In the prior DCA decision (Ortiz 1) the appellate court DCA affirmed the JCC’s finding that seeing a previously authorized doctor, without a causal connection to the compensable injury, is insufficient to toll the SOL. In dicta, the opinion also provided an analysis of tolling of the SOL that departed from the generally accepted “two-year/one-year” analysis, instead discussing a “master time/tolling timer.” The two- year master timer could only run when the tolling timer was not engaged. The practical effect is that the historical SOL would be extended. After granting a Motion for Rehearing, the DCA issued Ortiz 2. In a 28-page opinion, the DCA expounded further on that issue and “set aside” Ortiz 1. The majority opinion in Ortiz 2 avoided the master timer/tolling issue from Ortiz 1 by engaging in a lengthy analysis of the privately billed treatment being essentially for the same longstanding condition, and since the E/C didn’t show a break in the causal chain, the billing error of the doctor did not render it non-authorized treatment. Since the case dealt with an authorized provider but incorrectly billed, there was no gap sufficient to allow the SOL to run. The case discusses that as there was no evidence presented of a break in the causal chain, the treatment by an authorized doctor, although unbilled, serves to toll the SOL. Judge Bilbrey’s concurring opinion states that Judge Tannenbaum’s concurring opinion regarding tolling is dicta, has no precedential value, and is not binding on JCCs or a future DCA panel considering SOL. “His reasoning may be found persuasive or it may be discarded.” Judge Tanenbaum’s concurring opinion then provides a lengthy 12-page restatement of the master timer/tolling issue and suggests that JCCs should follow that analysis because that is what tolling means legally, and practitioners and judges following the two-year/one-year analysis have not been adhering to the law’s meaning of tolling. It would appear that while the master timer/tolling timer approach is not precedentially binding, at least one DCA Judge is encouraging JCCs to adopt this analysis. To date, some JCCs have followed this analysis, while others have not. There are also several other SOL cases pending in the DCA that may impact or alter this analysis further. Click here to view Opinion |