Skip's Shoes and Western Boots v. Green, 90-1596

• Citation: 578 So.2d 439,16 Fla. L. Weekly 1080
• Decision Date: 18 April 1991
• Docket Number: No. 90-1596,90-1596
• Court: Court of Appeal of Florida (US)
• Parties: SKIP'S SHOES AND WESTERN BOOTS and Traveler's Ins. Co., Appellants, v. Donald GREEN, and Inland Materials and ERC, Appellees. 578 So.2d 439, 16 Fla. L. Week. 1080

Page 439

578 So.2d 439

SKIP'S SHOES AND WESTERN BOOTS and Traveler's Ins. Co. Appellants, v. Donald GREEN, and Inland Materials and ERC, Appellees.

No. 90-1596.

578 So.2d 439, 16 Fla. L. Week. 1080

District Court of Appeal of Florida,

First District.

April 18, 1991.

Margaret E. Sojourner of Frank & Brightman, Orlando, for appellants.

William G. Berzak, Orlando, and Bill McCabe, Longwood, for appellee Green.

Thomas T. Clifford and John P. Daly of Rissman, Weisbert, Barrett & Hurt, P.A., Orlando, for appellees Inland Materials and ERC.

JOANOS, Judge.

Skip's Shoes and Western Boots and Traveler's Insurance Company have appealed from an order of the judge of compensation claims. The order held that any claim by Donald Green against appellees Inland Materials and ERC was barred by the statute of limitations, and that Skip's claim for reimbursement from Inland was therefore also time-barred. As a result, Skip's was found entirely responsible for the compensation and medical benefits also awarded by the order, which awards are not at issue herein. We reverse on the statute of limitations holding, and therefore do not reach appellants' arguments on other points.

Green was employed by Inland in January 1985, when he suffered a compensable injury to the anterior cruciate ligament of his right knee. Dr. Schaeffer was Green's authorized physician. After operating on the knee, he released Green to work on February 18, 1985. No compensation benefits were paid by Inland/ERC after February 21, 1985, but Dr. Schaeffer was never de-authorized. Green returned to work for Inland, but quit in February 1986 because the work was too hard on his knee. He thereafter went to work for Skip's.

During 1986, Green consulted Dr. Schaeffer in July, October and December for problems with his right knee. In October 1987, Dr. Schaeffer was authorized by Skip's/Traveler's to treat Green when he suffered a compensable injury to the lateral meniscus of his right knee. Finally, on April 13, 1988, Green injured the medial meniscus in that knee when it "locked up" while he was descending some stairs at home. Dr. Schaeffer operated in June 1988, when he discovered that complete reconstruction of the anterior cruciate ligament, originally injured in January 1985, had become necessary.

Skip's/Traveler's provided all medical care, as well as compensation benefits, after the October 1987 injury. Section 440.42(3), Florida Statutes, provides that

[w]hen there is any controversy as to which of two or more carriers is liable for the discharge of the obligations and duties of one or more employers with respect to a claim for compensation, remedial treatment, or other benefits under this chapter, ... and if one of the carriers voluntarily ... makes payments in discharge of such liability and it is finally determined that another carrier is liable for all or any part of such obligations and duties with respect to such claim, the carrier which has made payments ... voluntarily ... shall be entitled to reimbursement from the carrier finally determined liable....

On March 29, 1989, Skip's/Traveler's filed a notice of controversy between carriers as to Inland/ERC pursuant to this provision, based on the original January 1985 injury. Inland/ERC moved to dismiss the reimbursement claim, and any claims by Green, alleging that "more than two years has elapsed since [Inland/ERC] ... paid or provided any indemnity or medical benefits to the claimant [on February 21, 1985]." See Sec. 440.19(1), Florida Statutes (the right to compensation for disability, rehabilitation, impairment, or wage loss shall be barred unless a claim therefore is filed within 2 years of the time of injury or within 2 years after the date of the last payment of compensation or after the date of the last remedial treatment furnished by the employer).

Green's claim for benefits against Skip's/Traveler's, the reimbursement claim, and Inland/ERC's motion to dismiss were heard at the same time. As to the motion to dismiss, Skip's/Traveler's argued that Green's 1986 visits to Dr. Schaeffer, whom Inland/ERC had never de-authorized, constituted "remedial treatment furnished by" Inland/ERC. Therefore, the statute of limitations should be calculated, not from February 1985, but from the last visit in December 1986....