Palmer v. McKesson Corp.
| Decision Date | 27 February 2009 |
| Docket Number | No. 1D08-0516.,1D08-0516. |
| Citation | 7 So.3d 561 |
| Parties | Jamin PALMER, Appellant, v. McKESSON CORPORATION, and Gallagher Bassett Services, Inc., Appellees. |
| Court | Florida District Court of Appeals |
C. James McCall of McCall & Erler, P.A., Jacksonville, and Wilbur W. Anderson of Wilbur W. Anderson, P.A., Jacksonville, for Appellant.
Jennifer S. Haley-Gleason of Harbsmeir Dezayas, LLP, Tallahassee, for Appellees.
In this workers' compensation case, claimant seeks review of an order of the judge of compensation claims dismissing her petitions for benefits based on the determination that the statute of limitations had run. We affirm as to all issues raised by claimant, writing to address only the contention that the judge erred in placing on her the burden to prove the statute had not run.
Claimant sustained a compensable lumbar injury on August 17, 2001. The employer and servicing agent authorized medical treatment with Dr. Henkin, who performed a lumbar discectomy in November 2001. In February 2002, claimant was provided with a TENS unit. Claimant last received authorized care with Dr. Henkin on June 7, 2002.
On July 5, 2005, claimant filed three petitions for benefits, requesting TENS supplies and continued authorization of Dr. Henkin. The employer and servicing agent filed denials based on the expiration of the statute of limitations. Claimant countered that running of the statute had been tolled and/or revived by the provision of TENS supplies and medications.
At the merits hearing, claimant introduced the testimony of a former employee of a medical supply company used by the employer and servicing agent in support of the proposition that she was furnished TENS supplies in October of 2004. Claimant also testified that in 2006 she was furnished a prescription card from a pharmacy management company, which she used to fill four prescriptions from an unauthorized doctor. The adjuster testified that the employer and servicing agent did not authorize or pay for TENS supplies or medications after 2002, and the prescription card was issued by accident (by the pharmacy management company), without the employer's and servicing agent's knowledge or consent.
In her order, the judge rejected the testimony offered by claimant relative to the provision of TENS supplies because it was inconsistent with logic and the totality of the evidence. Significantly, the payout records of the employer and servicing agent failed to corroborate the transactions testified to, and Dr. Henkin's records were silent as to claimant's need for the device. As to the medications, the judge found that a pharmacy management company had mistakenly furnished the prescription card to claimant, without the knowledge or consent of the employer and servicing agent, and that the employer and servicing agent did not pay for the medications. Ultimately, the judge found the employer and servicing agent did not furnish medical treatment to claimant after June 7, 2002. All of the findings are supported by competent, substantial evidence. Based on the findings, the judge concluded that the petitions for benefits were barred because they were filed more than two years after the date of injury, and more than one year after the last receipt of indemnity benefits or authorized medical treatment.
On appeal, claimant argues that the judge erroneously shifted to her the burden of proving that the statute of limitations had not run. However, in making this argument, claimant fails to appreciate the distinction between the general statute of limitations contained in section 440.19(1), Florida Statutes (2001) (), and the express tolling exception to that statute found in section 440.19(2), which extends the filing period for one year upon the payment of indemnity benefits or the furnishing of medical care.
Because running of the statute of limitations is an affirmative defense, the employer and servicing agent had the burden of raising that defense and proving that the petitions for benefits were untimely pursuant to section 440.19(1). See § 440.19(4), Fla. Stat. (2001); see also Denestan v....
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