Eagle Point Mobile Home Estates v. Smith, BE-170

• Decision Date: 18 September 1985
• Docket Number: No. BE-170,BE-170
• Citation: 475 So.2d 992,10 Fla. L. Weekly 2160
• Parties: 10 Fla. L. Weekly 2160 EAGLE POINT MOBILE HOME ESTATES and Peninsular Fire Insurance Company, Appellants, v. Harvey SMITH, Appellee.
• Court: Florida District Court of Appeals

Page 992

475 So.2d 992

10 Fla. L. Weekly 2160

EAGLE POINT MOBILE HOME ESTATES and Peninsular Fire Insurance Company, Appellants, v. Harvey SMITH, Appellee.

No. BE-170.

District Court of Appeal of Florida First District.

Sept. 18, 1985.

Rehearing Denied Oct. 18, 1985.

Peter C. Burkert, of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for appellants.

Gary L. Wilkins, of Wotitzky, Wotitzky, Wilkins, Frohlich & Jones, Port Charlotte, for appellee.

SHIVERS, Judge.

The employer/carrier (E/C) appeal an order to pay remedial medical care on the basis that the deputy commissioner erred in rejecting their statute of limitations defense. We agree and reverse.

Claimant, a 45-year-old maintenance worker, injured his knee on April 13, 1982 while employed by Eagle Point Mobile Home Estates. After the accident, he was treated by Dr. Levy, an authorized orthopedic surgeon, from June 20, 1982 through August 4, 1982. During his August 4, 1982 visit with Dr. Levy, the claimant was informed that surgery was advisable. He declined surgery, however, and continued to work for the same employer. Just prior to the expiration of the two-year statute of limitations, claimant contacted Dr. Levy's office and an appointment was set for August 6, 1984. Claimant had received no other medical treatment for his knee between August 4, 1982 and August 6, 1984.

On the day of claimant's appointment, Mrs. Stonebrook, an employee with Dr. Levy's office, contacted the carrier regarding authorization for claimant's treatment. Mrs. Stonebrook testified at the hearing that the adjuster, Mrs. Elilonis, did not have claimant's chart because it was in the warehouse. Elilonis stated she saw no problems with Dr. Levy seeing the claimant, however, and indicated she would call Mrs. Stonebrook back that afternoon. When she had not returned the call by late afternoon, Stonebrook telephoned her. In the second telephone conversation, Stonebrook informed Elilonis that Dr. Levy had discussed surgery with the claimant and wanted to set the surgery for September 25, 1984. Once again, Elilonis told Stonebrook she could see no problem, but that if there was a problem she would contact her. Claimant was treated by Dr. Levy on August 6, 1984, and scheduled for arthroscopic surgery.

Neither claimant nor Dr. Levy's office heard from the carrier again until August 18, 1984, at which time Levy received a letter from Mrs. Elilonis stating, "This is to notify you the statute of limitations has run in this case and surgery is not authorized." The carrier also refused payment for the August 6, 1984 treatment.

After hearing on appellee's claim for additional medical care, the deputy found that the August 6, 1984 visit to Dr. Levy had been authorized by the carrier, and that this authorization had "revived the claim which would have been barred otherwise by the statute of limitations." The E/C were ordered...