Late challenge to timeliness of petition allows claimant to proceed

In order to use the statute of limitations to bar a petition for benefits, the employer must advance the defense in its initial response.

Case name: Certain v. Big Johnson Concrete Pumping Inc., No. 1D09-5001 (Fla. Dist. Ct. App. 04/29/10).

Ruling: The Florida District Court of Appeal reversed a judge of compensation claims' determination that the claimant's petition for benefits was barred by the two-year statute of limitations. The employer's initial response to the petition failed to raise the statute of limitations as grounds for denying the claim.

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What it means: In order to use the statute of limitations to bar a petition for benefits, the employer must advance the defense in its initial response. Raising it for the first time in a notice of denial filed the day after the response is filed is not sufficient.

Summary: In November 2008, the claimant sought benefits for injuries related to a 2005 automobile accident. The employer filed a response, denying the claim in its entirety. The next day, it sent a denial notice to the Florida Department of Financial Services, Division of Workers' Compensation, stating that the claim was barred as untimely. The JCC agreed and dismissed the petition. The DCA reversed, reasoning that the initial response to the claimant's petition failed to assert the statute of limitations as a defense. Although the denial notice was prepared the same day as the response to the claim for benefits, it was not mailed to the Division of Workers' Compensation until the following day.

Read more at the WorkersComp Forum homepage.

August 5, 2010

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