Ginsberg v. Chemmed Corp.

• Decision Date: 11 May 2006
• Docket Number: No. 1D05-3832.,1D05-3832.
• Parties: Edward L. GINSBERG, Appellant, v. ChemMED CORP. d/b/a Roto Rooter Service Company, Payroll Transfers, Gallagher Bassett Services, Inc., and Crawford and Company, Appellees.
• Court: Florida District Court of Appeals

929 So.2d 633

Edward L. GINSBERG, Appellant, v. ChemMED CORP. d/b/a Roto Rooter Service Company, Payroll Transfers, Gallagher Bassett Services, Inc., and Crawford and Company, Appellees.

No. 1D05-3832.

District Court of Appeal of Florida, First District.

May 11, 2006.

Ivan Matusek and Raymond Burger of Matusek, McKnight, Poluse & Cangro, P.A., St. Petersburg, for Appellant.

Robert C. Alston of Alston & Baker, P.A., Zephyrhills; Joseph A. Corsmeier of Joseph A. Corsmeier, P.A., Clearwater, for Appellees.

PER CURIAM.

Claimant appeals an order granting the employer/carrier's (E/C) motion for summary final order entered by the Judge of Compensation Claims (JCC), denying and dismissing all pending claims based on the running of the statute of limitations, section 440.19, Florida Statutes (1998). Claimant argues that the JCC erred by basing the date the statute began to run on the date claimant was prescribed pain medication as remedial treatment for his compensable injury, and instead should have used the date claimant finished the course of treatment by taking the last dose of the medication within the time prescribed. We agree, and therefore reverse. However, claimant's alternative ground for relief, that the E/C's authorization of evaluation and treatment with a pain management physician tolls the statute of limitations, does not warrant reversal in this case.

I. BACKGROUND

On October 15, 1998, claimant, a plumber, injured both knees while working in a trench. The E/C accepted the injury as compensable and provided compensation benefits, including medical treatment. On June 27, 2002, claimant was seen by his authorized orthopedic surgeon, Dr. Koco Eaton, who diagnosed claimant with "endstage arthritis left knee." Dr. Eaton's report from this visit provided that claimant's only treatment option would be total knee replacement, and pending that, pain management treatment. Dr. Eaton told claimant he could only write him one prescription for Oxycontin, a pain relief medication, and that he was being referred for pain management treatment until he decided to have the knee replacement surgery. The claimant was provided with a prescription for a thirty-day supply of Oxycontin, which was filled the same day. The E/C paid for both the prescription and the doctor's visit.

On July 30, 2002, claimant filed a petition for authorization for pain management treatment. Shortly after this petition was filed, the E/C authorized evaluation and treatment with a pain management physician to be chosen by claimant from a carrier-approved list. In response, claimant voluntarily withdrew his petition. However, claimant did not seek treatment pursuant to this authorization until July 9, 2003.

On July 10, 2003, claimant called the E/C's adjuster and stated he wanted a return visit with Dr. Eaton. The adjuster denied the return visit indicating that the statute of limitations had run. On July 22, 2003, more than one year after the prescription was filled, but less than one year after the thirty-day supply of pain medication would have been depleted, claimant made a return visit to Dr. Eaton on his own. However, the E/C denied the bill for this visit based on the statute of limitations.

On February 25, 2004, within one year of claimant's second visit to Dr. Eaton's office, claimant filed a petition for benefits requesting medical expenses, medical care under the supervision of Dr. Eaton and a pain management physician, authorized and continuing treatment with Dr. Eaton and pain management treatment of both knees, and costs and attorney's fees. The E/C filed a motion for summary final order, alleging that the statute of limitations had run on the claim. The JCC granted this motion after rehearing, finding that the statute of limitations had run in this case. The order specifically found the following: "Case law substantiates that the time began to run from the physician's appointment, June 27, 2002, and not from some arbitrary point in the future when the Claimant asserts that he finished taking the prescription." The order denied and dismissed all pending claims regarding the 1998 accident.

II. ANALYSIS

Section 440.19(1), Florida Statutes (1998), provides a two-year statute of limitations for workers' compensation claims from the date the employee knew or should have known of an injury arising out of work performed in the scope and course of employment. This statute of limitations would bar the claims in the present case unless the statute was tolled pursuant to section 440.19(2), Florida Statutes (1998). This section provides the following:

Payment of any indemnity benefit or the furnishing of remedial treatment, care, or attendance pursuant to either a notice of injury or a petition for benefits shall toll the limitations period set forth above for 1 year from the date of such payment. This tolling period does not apply to the issues of compensability, date of maximum medical improvement, or permanent impairment.

§ 440.19(2), Fla. Stat. (1998) (emphasis added).

A. The Prescription Medication

Claimant argues that remedial treatment is furnished during the entire course of treatment, in this case, through the last dose of the medication taken by claimant at the end of the thirty-day prescription period. If this date is used to toll the statute of limitations as claimant suggests, then claimant's claims are not barred by the statute of limitations. Claimant made his second visit to Dr. Eaton within one year from the date claimant's prescription pain medication would have been depleted. Further, claimant's petition for benefits was filed within one year of this second visit to Dr. Eaton.

While several decisions of this court cite the date the prescription was received as the date the statute of limitations begins to run, these cases do not address the narrow issue presented by claimant in this case. See Thomas v. Jacksonville Elec. Auth., 536 So.2d 310 (Fla. 1st DCA 1988) (holding that the prescribed medication in that case received on May 27, 1987, tolled the statute of limitations and therefore, the July 7, 1987 claim for benefits was timely filed); City of Orlando v. Blackburn, 519 So.2d 1017 (Fla. 1st DCA 1987) (holding that "remedial" as used in section 440.19 includes treatment that mitigates the effects of injury, such as pain medication, and that eleven prescriptions for pain medication ordered by the doctor without office visits tolled the statute of limitations so that claimant's claim, filed within one year of the last prescription, was not barred).

In the present case, there is no dispute that the E/C knew about this course of treatment, because the E/C paid for the prescription and the doctor's visit.¹ Additionally, because the E/C paid for the prescription, there is no question that the pain medication was prescribed for treatment of claimant's work-related injury. Dr. Eaton only prescribed a thirty-day supply of pain medication, and did not renew this prescription. Claimant argues that the statute of limitations should begin to run at the end of this thirty-day period.

Under the specific facts of this case, we agree with claimant, that the statute of limitations began to run at the end of this thirty-day period, so long as claimant was taking the medication as prescribed. Cf. Fuster v. E. Airlines, Inc., 545 So.2d 268 (Fla. 1st DCA 1988) (holding there was competent substantial evidence and case law to support the deputy's finding that the wearing of a back brace, prescribed to alleviate pain, constituted remedial treatment which tolled the statute of limitations, where it was clear that the employer knew about the treatment); Taylor v. Metro. Dade County, 596 So.2d 798 (Fla. 1st DCA 1992) (citing Fuster; reversing and remanding for findings of fact where the JCC found that the statute of limitations barred the claimant's claim, but did not address the claimant's testimony that a back brace had been prescribed and that the claimant wore the back brace off and on during the critical two-year time period). If claimant took the pain medication as prescribed by Dr. Eaton through the end of this thirty-day time period, then remedial treatment was furnished to claimant through the end of the prescribed period.

B. The E/C's Authorization of Treatment

As an alternative ground for reversal, claimant argues that the statute of limitations was tolled by the E/C's authorization of evaluation and treatment by a pain management physician. This offer of treatment occurred after claimant filed a petition for benefits on July 30, 2002, which was later voluntarily dismissed after treatment was agreed to by the E/C.

This argument does not provide an independent ground for reversal. The petition for benefits, although timely filed, does not toll the statute of limitations in this case because it was voluntarily dismissed. See McBride v. Pratt & Whitney, 909 So.2d 386 (Fla. 1st DCA 2005) (holding that the running of the statute of limitations was not tolled during the period when two earlier petitions were filed by claimant and later voluntarily dismissed). Additionally, the authorization of treatment does not toll the statute of limitations because claimant does not allege he sought remedial treatment pursuant to this authorization within one year of claimant's June 27, 2002 appointment with Dr. Eaton. See Eagle Point Mobile Home Estates v. Smith, 475 So.2d 992 (Fla. 1st DCA 1985) (ruling that where the adjuster initially stated she "saw no problem" with requested surgery, the statute was not tolled where the E/C revoked the authorization prior to the time claimant received the surgery); Gen. Elec. Co. v. Shepard, 440 So.2d 462 (Fla. 1st DCA 1983) (providing that an outstanding order requiring treatment which has not been furnished...