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The 1st District Court of Appeal rules that statute of limitations was not tolled by fusion hardware.

July 1, 2018
Ring Power Corp. and USIS v. Andrew Murphy, No. 1D17-1316, 1st DCA Fla., Decision date Feb. 23, 2018

The claimant had a fusion surgery a few months after his 2006 work injury. Within one year of surgery, the fusion was solid, and it was argued that they no longer performed any fuction, although they remained attached and inside of the claimant. The employer last provided benefits in 2013. In 2016, the claimant filed a petition for benefits, and the employer asserted a statute of limitations defense.

The claimant cited Section 440.19(2), which states that the time period is tolled “for a period of one year from the payment of compensation or furnishing of remedial treatment.” The claimant further cited Gore v. Lee County School Board, 43 So. 3d at 849, where the 1st DCA held that the “continued use” of a medical apparatus will toll the statute of limitations. That case involved a claimant who used a knee prosthesis, which the court opined counted as continual, remedial treatment. The Judge of Compensation Claims agreed with the claimant and held that the statute of limitations was tolled due to the fusion hardware.

On appeal, the 1st DCA said that Gore does not apply here because the claimant was not “using” the rods and screws. According to the court, the “rods and screws were used for a temporary purpose, but for years they have served no function at all. Therefore, their placement does not toll the statute of limitations.”

 

Case Law Alerts, 3rd Quarter, July 2018

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