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What's Hot in Workers' Comp

Treatment with authorized provider tolls statute of limitations, although treatment occurred without employer/carrier’s knowledge and was billed to private health insurance, as it was similar in nature to previously authorized treatment.

Ortiz v. Winn-Dixie, Inc., No. 1D2021-0885, Fla. 1st DCA 2024, DCA#: 1D2021-0885, Decision date: Dec. 23, 2024

February 1, 2025

by Blake J. Hood

The First District Court of Appeal issued another opinion in the ongoing statute of limitations saga triggered by the 2023 opinion in Ortiz v. Winn-Dixie, Inc., 361 So. 3d 889 (Fla. 1st DCA 2023) (Ortiz I). The new opinion, also written by Judge Tanenbaum, in Ortiz v. Winn-Dixie, Inc., No. 1D2021-0885, (Fla. 1st DCA 2024) (Ortiz II), supersedes the original. Far from clarifying the issue, Ortiz II leaves many questions unanswered. 

Ortiz I introduced the “two-year master countdown timer” and “tolling timer” concepts in explaining how to construe the time bars for filing petitions for benefits as set forth in section 440.19, Florida Statutes. In so doing, Ortiz I held the one-year tolling provision in section 440.19(2)—prompted by furnishing medical care or paying compensation—does, in fact, apply within the first two years following an accident, something prior case law held otherwise. Thus, under Ortiz I, if an employer/carrier provided benefits immediately following an accident, the initial two-year master timer would never even start ticking, and claimants could effectively “bank” that time. 

By contrast, Ortiz II makes no mention whatsoever of the master countdown/tolling timers. Rather, the new majority opinion focuses only on whether the specific treatment the claimant received qualified as medical care “furnished” by the employer/carrier and was sufficient for the one-year tolling provision in section 440.19(2). Ortiz I held it did not qualify and upheld the judge of compensation claim’s dismissal of the claim. Ortiz II now holds it did qualify and, thus, allowed the claimant’s claims to proceed.

Following the claimant’s accident, the employer/carrier authorized treatment, ultimately requiring the removal of her right kidney. The employer/carrier then authorized and paid for care over many years in the form of annual “kidney follow-ups” with a urologist. At one point in 2019, however, the authorized doctor began sending his medical bills to the claimant’s personal health insurance. The claimant testified she used her health insurance because someone at her doctor’s front desk told her to do so. When the employer/carrier reached out to this doctor’s office after not having received any bills for quite some time, they were advised of the billing situation. Because one year had elapsed from the last visit it paid for, the employer/carrier asserted a statute of limitations defense and denied further care.

The Ortiz II majority noted, the employer/carrier had entered into a broad stipulation accepting compensability of the injury and had not limited their acceptance of compensability for the kidney to any set of symptoms or diagnoses. Since the claimant presented evidence showing that the nature of the treatment both before and after the billing switch was essentially the same, the employer/carrier had to show “a break in causation” such that the treatment of the urological condition was no longer related to the loss of her kidney. In the court’s opinion, the disputed visits were of a piece with the care the employer/carrier had authorized for years. The court further stated the doctor’s decision to bill the claimant’s personal insurance for the contested visits did not alter the analysis. It was not for the doctor to decide whether the visits fit within the employer/carrier’s authorization. It noted, the court repeatedly held that “who gets billed has no legal bearing on the tolling question.” 

Because the question of whether the “two-year master countdown timer” ever started ticking was not squarely before the court and not raised by the parties, Ortiz II removed that discussion from the majority opinion. Left unanswered, then, for the parties and practitioners is the effect of providing benefits at the beginning of a claim and whether claimants can carry that time forward. Judge Tanenbaum wrote a lengthy, separate and concurring opinion, arguing in detail why his calculation methodology in Ortiz I is the correct reading of the statute. Judge Bilbrey’s short and concurring opinion clarifies that Judge Tanenbaum’s concurring opinion has no precedential value and, if the question arises again, “his reasoning may be found to be persuasive or may be discarded.”

Superficially, Ortiz II is not a groundbreaking case. It simply holds that employers/carriers cannot present “Get Out of Jail Free” cards and then deny further care by showing that claimants treated with authorized providers unbeknownst to the employers/carriers or that the visits were not billed to the employers/carriers for over one year, so long as the visits were of a piece with previously authorized care. 

The real significance of Ortiz II is what it leaves unsaid. For now, parties, practitioners and, of course, judges are left wondering if we once again live in the simple “two-year/one-year” calculation method of pre-Ortiz I or whether the court will ultimately adopt the more complicated Ortiz II methodology at some point in the future after all. 


 

What’s Hot in Workers’ Comp, Vol. 29, No. 2, February 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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The Search-Incident-to-Arrest Doctrine Does Not License Strip Searches

In Beatty v. Gardner, No. 25-2860 (3d Cir. Sept. 16, 2026), Kyle Beatty sued police officers Clinton Gardner and Calvin Irvin under 42 U.S.C. § 1983 after they stopped, arrested, and searched him three times during a drug investigation in Williamsport, Pennsylvania. The officers initially smelled marijuana coming from the car in which Beatty was sitting and observed marijuana residue, giving them probable cause to arrest him. Beatty consented to the first pat-down, and the second search was conducted incident to his lawful arrest; neither search uncovered weapons or contraband. The officers then transported Beatty to the police station solely to strip-search him, but the strip search also revealed nothing. The District Court granted the officers summary judgment, concluding that the initial stop, arrest, and first two searches were reasonable and that qualified immunity protected the officers from liability for the strip search. The Third Circuit affirmed, but held that the strip search itself violated the Fourth Amendment. The court concluded that the search-incident-to-arrest doctrine does not automatically permit officers to strip-search an arrestee outside the jail or prison setting. Because strip searches are highly intrusive and the traditional justifications for searches incident to arrest (officer safety and preservation of evidence) did not justify the search of Beatty, the officers generally needed either the arrestee’s consent, exigent circumstances, or a warrant supported by probable cause to believe that a search beneath the clothing would reveal weapons, contraband, or evidence. Here, the officers had none of those justifications. Nevertheless, the court held that qualified immunity barred damages liability because, at the time of the search, the right against a warrantless strip search of an arrestee outside the institutional setting was not clearly established by Supreme Court or Third Circuit precedent. The court likewise upheld qualified immunity on Beatty’s First Amendment retaliation claim and affirmed summary judgment for the officers.

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Two Tracks, No Preclusion: Ohio Supreme Court Preserves Separate Damages Claims After Chapter 2506 Appeals

The Supreme Court of Ohio has clarified that an administrative appeal under Ohio Revised Code Chapter 2506 does not bar a separate action for damages and declaratory relief that could not have been pursued in the administrative appeal. The Ohio Supreme Court considered Sheetz, Inc. v. Centerville (2026-Ohio-3531) as a result of a certified question from the Southern District of Ohio. The question was whether Sheetz, the gas station/convenience store brand, was barred from seeking damages in a separate action since damages were not sought in their administrative appeal. Ultimately, the Ohio Supreme Court ruled that res judicata does not bar a separate action for damages after ruling on an administrative appeal because R.C. Chapter 2506 is limited to judicial review and cannot grant affirmative relief. The case arose after Centerville’s city council rejected a site plan proposed by Sheetz, Inc. that had received unanimous approval from the City’s planning commission. Sheetz filed an administrative appeal pursuant to R.C. 2506 in the Montgomery County Court of Common Pleas, and two months later filed a complaint for damages and declaratory relief under 42 USC § 1983 as a takings action with the city, city council, and other objectors as improper takings and a violation of due process, as well as interference with business and contractual relationship. The city and city council removed the § 1983 action for damages to federal court. Montgomery County Court of Common Pleas reversed the city council’s denial, and allowed the Sheetz project to move forward. Upon that ruling, the federal court issued a show-cause order questioning whether the § 1983 action was barred by the doctrine of res judicata via claim preclusion (which includes all theories of recovery).  Sheetz argued that Ohio courts of common pleas do not have authority to award damages or declaratory relief as party of the R.C. Ch. 2506 appeal, therefore res judicata could not be triggered to apply to the § 1983 action. Additionally, Sheetz moved to certify the issue to the Ohio Supreme Court, citing differing results between the second and sixth districts on this same issue. Centerville approached the question, not from a claim preclusion standpoint, but from the holding in Grava v. Parkman, Twp which states that a final judgment rendered on the merits bars all subsequent action based on the same transaction or occurrence.  In yet another approach, an objector argued that claim preclusion was satisfied because Sheetz could have raised its damages claims in the administrative appeal – Sheetz disagrees. In their analysis, the Supreme Court of Ohio broke down the elements of a claim preclusion analysis: 1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties, or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action. The Court held that R.C. Ch. 2506 does not permit a party to argue damages as R.C. Ch. 2506 limits the common pleas jurisdiction as if it were sitting on appeal, and therefore can only affirm, reverse, vacate, or modify the appealed order, or can remand the case to the administrative body. Further, the Court held that Grava’s conclusion that a final judgment precludes additional litigation for different relief is inapplicable under this fact pattern because it was meant only to apply to those matters in which the plaintiff brings the exact same case twice, but for new relief. The Court found Grava was inapplicable because Sheetz could have requested damages or declaratory relief in the R.C. 2506 appeal. Therefore, Grava would be nothing more than dicta if it even did apply. Going further, the Ohio Supreme Court disavowed Sixth Circuit precedent which, in reliance on Grava and other district court decisions, permitted an owner to seeking relief under 42 U.S.C. § 1983 alongside an administrative appeal. See Moore v Hiram Twp., 988 F.3d 353 (6th Cir.2021). The Ohio Supreme Court found that the Sixth Circuit had disregarded a critical decision in Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 1993-Ohio-115, which clearly held that a R.C. Ch. 2506 appeal cannot be combined with a complaint seeking other claims for relief. Id. at ¶ 11. To that end, the Ohio Supreme Court has determined that the decisions Moore relied on (outside of Grava) are no longer good law, and that Moore was wrongly decided. The decision draws a clear procedural boundary: Chapter 2506 provides judicial review of an administrative decision, not a forum for independent claims seeking affirmative relief. Although Grava may place claims arising from a single transaction within the potential scope of claim preclusion, those claims are not barred unless the complete claim-preclusion test is satisfied. Because Sheetz could not have pursued damages or declaratory relief in its Chapter 2506 appeal, the separate action was not precluded. The remaining question for practitioners looking to apply or defend against this exception is when does the statute of limitations begin to run on damages and declaratory relief claims related to an administrative decision on appeal? A takings action in federal court has a 2-year statute of limitations, or as a state claim, 4 years (like the other tortious claims raised therein). Correlating this case with others, an administrative appeal will not likely toll the statute of limitations on claims based on a final decision by a municipal authority. Therefore, practitioners should look for these cases to be brought simultaneously.

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