WESTERN LIQUORS CORPORATION AND MARYLAND CASUALTY COMPANY, APPELLANTS,
v.
AUDREY DE MASSO STUDER, APPELLEE
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Western Liquors and Maryland Casualty challenged a workers' compensation order directing them to provide ongoing medical treatment under Dr. Hoover's direction, arguing it improperly awarded lifetime treatment and waived statutory limitations. The court affirmed, holding that such orders must be construed as awarding benefits only for the period the injury or recovery requires, subject to the statutory two-year limitations period.
An order for continuing medical treatment may not be used to nullify the statutory two-year limitations period. Such orders should be read as awarding benefits in the manner and time provided by law—for the period the nature of the injury or recovery requires—and this construction necessarily encompasses the statutory limitations period. The failure to track the statute's exact language is not reversible error, provided the order is interpreted as subject to the limitations period.
[1] An order for continuing medical treatment cannot nullify statutory limitations periods for claiming remedial attention.
[2] Claims for remedial attention are barred unless made within two years of the last compensation payment, last remedial attention, or an award of medical treatment.
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Join FLexlaw to unlock all legal intelligence“An order for continuing treatment may not be used to nullify the statutory limitations period.”
Establishes the core holding that statutory limitations cannot be waived by the form of a treatment order.
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Join FLexlaw to unlock all legal intelligenceThe deputy commissioner issued an order requiring the employer/carrier to supply medical treatment to the claimant under Dr. Hoover's direction as nec…
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WENTWORTH, Judge.
This is an appeal from an order of the deputy commissioner directing the employer/carrier to “supply the claimant with treatment by Dr. Hoover or under his direction as he deems necessary.” Employer/carrier asserts that the order is an award of lifetime treatment and argues that it effectively overcomes or waives the limitations period found in Section 440.13(3)(b), Florida Statutes (1975) (current version at Section 440.19(2)(b), Florida Statutes (1979)). We disagree with that construction of the order and affirm the deputy commissioner on evidentiary issues argued by appellant.
Section 440.13(3)(b), Florida Statutes (1975) provides that all rights to remedial attention are barred unless a claim for them is made within two years of the date of the last payment of compensation or the date of the last remedial attention furnished by the employer, or within two years of an award of medical treatment.
Section 440.13(1), Florida Statutes (1975) provides, “subject to the limitations specified in paragraph (3)(b), the employer shall furnish to the employee such remedial treatment ... for such period as the nature of the injury or the process of recovery may require ....”1 An order for continuing treatment may not be used to nullify the statutory limitations period. Luv Auto Sales v. Murphy, IRC Order 2-3567, cert. dismissed, 373 So. 2d 459 (Fla.1979).
While an order for medical treatment should ordinarily track the language of the statute (Ford v. Hood’s Dairy, Inc., 143 So. 2d 13 (Fla.1962)), the failure to do so is not necessarily reversible error. Such orders should ordinarily be read as awarding benefits in the manner and time provided by law, i. e., “for such period as the nature of the injury or the process of recovery may require.” Cf. Ocala Jai-Alai, Inc. v. Johnson, IRC Order 2-3783 (April 24, 1979) (concurring and dissenting opinion).
That construction necessarily encompasses the limitations period to which Section 440.13(1) is expressly subject.
Therefore, as appellee concedes, should a claimant not require treatment within two years of the award of medical treatment or within two years of the date of the last remedial attention furnished by the employer or the date of the last payment of compensation, the statute may bar rights to further medical attention unless waiver is established by affirmative evidence other than the ambiguous phraseology of an order for benefits. See Platzer v. Burger, 144 So. 2d 507 (Fla.1962), decided under a former statute which did not contain the proviso of the current law expressly making Section 440.13(1) subject to the limitations period of Section 440.13(3)(b).
AFFIRMED.
JOANOS, J., and WOODIE A. LILES (Ret.), Associate Judge, concur. . Section 440.13(1), Florida Statutes (1979) reads “subject to the limitations specified in S. 440.19(2)(b)_” Chapter 79-40, 1979 Florida Laws, moved Section 440.13(3)(b) to Section 440.19(2)(b) in substantially the same form.
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Prof'l Administrators & Nationwide Ins. Co. v. MacIas, 448 So. 2d 1159 (Fla. 1st DCA 1984)…d as an award of such care only for such period as the nature of the injury may require, in the manner and for the time provided by law. See Automatic Data Processing v. Scarberry, 412 So. 2d 927 (Fla. 1st DCA 1982); Western Liquors Corp. v. Studer, 391 So. 2d 250 (Fla. 1st DCA 1980). Affirmed. ZEHMER and BARFIELD, JJ., concur.…
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Mahoney v. Sears, 438 So. 2d 174 (Fla. 1st DCA 1983)…e the statute of limitations prospectively, so as to preserve claimant’s rights to medical benefits anticipated to arise beyond the two-year statutory period. We reluctantly agree and affirm the order appealed. Western Liquors Corporation v. Studer, 391 So. 2d 250 (Fla. 1st DCA 1980); Goodyear Service Store v. Rockey, 382 So. 2d 816 (Fla. 1st DCA 1980); Luv Auto Sales, Inc. v. Murphy, IRC Order 2-3567, cert. dismissed, 373 So. 2d 459 (Fla.1979). It is unfortunate that, although probable need for future medica…
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Authorities Cited
- Hansel E. Fort v. Hood's Dairy, Inc., 143 So. 2d 13 (Fla. 1962)
- Platzer v. Biff Burger, 144 So. 2d 507 (Fla. 1962)