General Elec. Co. v. Spann

• Decision Date: 06 December 1985
• Docket Number: No. BD-26,BD-26
• Citation: 479 So.2d 289,10 Fla. L. Weekly 2691
• Parties: 10 Fla. L. Weekly 2691 GENERAL ELECTRIC COMPANY and Electric Mutual Liability, Appellants, v. Norman SPANN, Appellee.
• Court: Florida District Court of Appeals

Page 289

479 So.2d 289

10 Fla. L. Weekly 2691

GENERAL ELECTRIC COMPANY and Electric Mutual Liability, Appellants, v. Norman SPANN, Appellee.

No. BD-26.

District Court of Appeal of Florida,

First District.

Dec. 6, 1985.

Jack A. Langdon, Gainesville, for appellants.

Craig F. Hall of Hall & Hall, Gainesville, for appellee.

NIMMONS, Judge.

The employer and carrier (E/C) seek reversal of the deputy commissioner's award of benefits contending that such benefits were barred by the limitations provision of Section 440.28, Florida Statutes (1977). We affirm in part and reverse in part.

Claimant was injured in 1977. He reached MMI with 0% impairment in 1978. In 1980, claimant petitioned for modification which was granted pursuant to an order entered on October 6, 1980. The order awarded the claimant 5% PPD which was paid in a lump sum in 1981. The E/C provided continuing medical treatment, the October 6, 1980, order having required the E/C to "supply to the claimant such medical care and attention as the nature of his injury and the process of his recovery might require."

In January 1984 one of claimant's treating physicians opined that claimant had a 10% impairment. In March 1984 the E/C voluntarily paid the additional 5% impairment. Two weeks later, the claimant filed a claim for benefits which is the claim involved in the instant appeal. Claimant sought increased disability benefits as well as additional medical attention based upon the claimant's alleged worsened condition. Although the claimant attempted to characterize his claim as a "new claim" for benefits never awarded, the deputy correctly designated the claim as one seeking modification of the prior October 6, 1980, order, at least insofar as it sought TTD benefits and an increase in the PPD previously awarded. See Washington v. Dade County School Board, IRC Order 2-3694 (Feb. 8, 1979). Based upon the evidence of the claimant's change in condition, the deputy ordered, among other things, payment of TTD benefits from May 24, 1983, and continuing "for the time and in the manner provided by law," payment of medical bills, and treatment by Dr. Freed "as the nature of his injury and the process of his recovery might require." The deputy refused to invoke the limitation provisions of Section 440.28.

The limitation statutes relevant to this case are §§ 440.13(3)(b) and 440.28, F.S. (1977) (currently 440.19(1)(b) and 440.28 (1983), respectively).

Section 440.28 provides that at any time prior to two years after the date of the last payment of compensation pursuant to any compensation order, the deputy may review a case and issue a new compensation order on the ground of a change in condition. It does not provide that a voluntary payment of additional compensation, not pursuant to an order, paid after two years from the date of the last payment of compensation pursuant to an order, revives the claim.

We find the claim for additional disability benefits, both temporary and permanent, was barred two years after full payment of PPD under the 1980 order was made in 1981.

The 1980 order having adjudicated MMI and awarded PPD, the 1984 claim, insofar as it sought additional temporary and permanent disability benefits, must meet the requirements of Section 440.28, including its limitations provisions. Washington v. Dade County School Board, supra; Bassett's Dairy v. Thomas, 429 So.2d 1356 (Fla. 1st DCA 1983). In Bassett's Dairy, the claimant had been injured in 1971, was awarded 20% PPD and the final payment of benefits was made in 1975. The claimant received continuing medical treatment through 1981. The E/C voluntarily paid TTD for five months in 1981. In 1982 the claimant filed a claim for further medical care, rehabilitative TTD, modification of PPD, PTD and other benefits. The deputy found the claim to be timely under Section 440.19(1)(a), Florida Statutes (1969). ¹ This is the "new claim" statute of limitation. This court in Bassett's Dairy distinguished the statute of limitations for filing of initial claims and the limitation for filing of a petition for modification. The claimant in Bassett's Dairy was seeking a modification of a previous order and, thus, it was held that Section 440.28 applied. We find Bassett's Dairy indistinguishable on the issue of disability benefits. There is no provision in Section 440.28 which tolls the running of the statute if payments are voluntarily made by the E/C. Further, in this case, the voluntary payment of the additional 5% PPD was made after the two-year statutory period had run. There is no provision in Section 440.28 which would revive the claim after the statute had run.

There is also before us the propriety of the order's requirement of continuing remedial medical treatment. This was not at issue in Bassett's Dairy, the court expressly noting that such issue was not before it. Id. at 1357. We know from Bryant v. Elberta Crate & Box Co., 156 So.2d 844 (Fla.1963), that it was not incumbent upon the claimant to establish a change of condition under Section 440.28 in order to obtain additional medical care. ² Therefore, the two-year limitation period under Section 440.28 is not applicable.

Section 440.13(3)(b) (1977) (currently 440.19(1)(b) (1983)) provides for the circumstances under which the right to remedial attention will be time barred:

(b) All rights for remedial attention under this section shall be barred unless a claim therefor is filed with the division within 2 years after the time of injury, except that if payment of compensation has been made or remedial attention has been furnished by the employer without an award on account of such injury a claim may be filed within 2 years after the date of the last payment of compensation or within 2 years after the date of the last remedial attention furnished by the employer; and all rights for remedial attention under this section pursuant to the terms of an award shall be barred unless a further claim therefor is filed with the division within 2 years after the entry of such award, except that if payment of compensation has been made or remedial attention has been furnished by the employer under the terms of the award a further claim may be filed within 2 years after the date of the last payment of compensation or within 2 years...