EMMETT FORD, APPELLANT,
v.
ALEXANDER CABINET COMPANY AND AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, APPELLEES
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The court held that a claim for pain clinic treatment, previously denied, must be brought as a petition to modify the prior order under Section 440.28, Florida Statutes, and was untimely if filed more than two years after the rejection order.
[1] A claim for medical treatment previously denied in a prior compensation order must be pursued through a petition for modification of that order, not as a new claim for re…
[2] The two-year limitation period for modifying a compensation order under Section 440.28, Florida Statutes, begins to run from the date copies of an order rejecting a claim…
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Join FLexlaw to unlock all legal intelligenceFord, injured in an industrial accident, sought pain clinic treatment. His prior claim for this treatment was denied and affirmed on appeal. Ford late…
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MILLS, Judge.
Ford appeals from a workers’ compensation order denying his claim for treatment at a pain clinic. He contends the deputy erred in finding the claim barred by Section 440.28, Florida Statutes (1979). We affirm.
Ford had an industrial accident on 4 March 1979. The employer/carrier voluntarily paid temporary total disability (TTD) benefits from 5 March 1979 to 1 February 1980, and permanent partial disability (PPD) benefits from 2 February 1980.
Later, Ford filed a claim seeking a change back to TTD status and treatment at a pain clinic. On 6 March 1981, the deputy denied both requests, finding Ford reached maximum medical improvement on 1 February 1980 with a 20% permanent impairment of the body as a whole. That order was appealed to this Court where it was per curiam affirmed. Ford v. Alexander Cabinet Co., Inc., 411 So. 2d 386 (Fla. 1st DCA 1981).
Ford thereafter sought greater PPD benefits and retroactive TTD benefits. The deputy denied retroactive TTD benefits, but awarded greater PPD benefits. The order, as amended, was entered on 30 April 1982.
On 11 April 1983, Ford filed a claim again requesting pain clinic treatment. He argued the claim was timely under Section 440.13(3)(d), Florida Statutes (Supp.1978), now Section 440.19(l)(b), Florida Statutes (1983), or under Section 440.28, Florida Statutes (1979). The deputy entered an order finding Ford could not proceed under Section 440.19(l)(b), and treating the claim as a Section 440.28 petition to modify the 6 March 1981 order. Finding the de facto petition filed more than two years after 6 March 1981, the deputy denied it as untimely-
The deputy did not err in finding Ford could not proceed under Section 440.-19(l)(b). That provision applies to initial claims for remedial attention and subsequent claims for remedial attention and subsequent claims for remedial attention already awarded pursuant to a prior order. Because Ford sought the same medical attention denied in the March 1981 order, the proper procedure was to petition for modification of that order pursuant to Section 440.28.
The question then becomes whether the petition was untimely. In part, Section 440.28 provides:
[T]he deputy commissioner may, at any time prior to 2 years after the date of the last payment of compensation pursuant to any compensation order, or at any time prior to 2 years after the date copies of an order rejecting a claim are mailed to the parties at the last known address of each, review a compensation case in accordance with the procedure prescribed in respect of claims in s. 440.25 and, in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation.
Ford argues that because he continues to receive PPD benefits pursuant to the 30 April 1982 order, he is receiving compensation “pursuant to any compensation order” and therefore may seek to modify the March 1981 order. But because the March 1981 order rejected the claim for pain clinic treatment, the applicable limitation period is “2 years after the date copies of an order rejecting a claim are mailed to the parties,” not “2 years after the date of the last payment of compensation pursuant to any compensation order.” Thus the petition, having been filed more than two years after the date copies of the March 1981 order were mailed to the parties, was untimely.
Ford also argues that Section 440.28 does not apply because it pertains only to modification of compensation orders, not to modification of orders relating to medical benefits. We reject this argument because Section 440.28 has been construed to encompass modification of orders relating to medical benefits. Fruit Bowl, Inc. v. Cheathem, 155 So. 2d 865 (Fla.1963); Bishop v. Pinellas Framing & Finishing, 414 So. 2d 596 (Fla. 1st DCA 1982).
We do, however, think the language of Section 440.28 lacks preciseness because medical benefits are not always considered compensation. For example, remedial medical treatment is not payment of compensation so as to toll the limitation period of Section 440.28. Dean v. McLeod, 270 So. 2d 726 (Fla.1972). The distinction is also perpetuated in Section 440.19(1), which contains two limitation periods for compensation and a third for remedial attention. More precise legislative drafting would do much to eliminate the confusion.
AFFIRMED.
JOANOS and BARFIELD, JJ., concur.
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Univ. OF Fla. & Div. of Risk Mgmt. v. McLARTHY, 483 So. 2d 723 (Fla. 1st DCA 1985)…mpensation or furnishing of remedial treatment pursuant to order, the petition or claim will be barred. Id. See also Berrien v. United States Phosphoric Products, 5 FCR 232, cert. denied, 157 So. 2d 809 (Fla.1963). Cf. Ford v. Alexander Cabinet Co., 467 So. 2d 1050 (Fla. 1st DCA 1985). In the instant case, the claim seeking temporary benefits was filed on November 19,1984, more than two years after [*727] the last payment of compensation benefits pursuant to the first order. As a result, the second order ente…
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Keller Kitchen Cabinets & Alexis, Inc. v. Holder, 586 So. 2d 1132 (Fla. 1st DCA 1991)…2d 726 (Fla.1972); Brantley v. ADH Building Contractors, Inc., [*1138] 215 So. 2d 297 (Fla.1968); Mansell v. Mulberry Const. Co., 196 So. 2d 436 (Fla.1967); Food Fair Stores, Inc. v. Tokayer, 167 So. 2d 563 (Fla.1964); Ford v. Alexander Cabinet Co., 467 So. 2d 1050 (Fla. 1st DCA 1985); Budget Luxury Inns v. Boston, 407 So. 2d 997 (Fla. 1st DCA 1981). Early on, the harsh and sometimes irrational results that flowed from this construction and application of the act have led the court to look for ways to avoid th…
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Palm Beach Cnty. Bd. of Cnty. Comm'rs v. Roberson, 500 So. 2d 180 (Fla. 1st DCA 1986)…nal benefits occurred more than two years after the final payment of the PPD. Here, the 1984 compensation order intervened prior to the expiration of two years from the final payment under the 1980 order. We also find Ford v. Alexander Cabinet Co., 467 So. 2d 1050 (Fla. 1st DCA 1985), inapplicable. In Ford, the claimant sought to relitigate, through the stratagem of seeking modification of a prior order, a claim for pain clinic treatment which had been unsuccessfully litigated over two years earlier. We affir…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bishop v. Pinellas Framing & Finishing & Liberty Mut. Ins. Co. (1) & Current Builders, Inc., 414 So. 2d 596 (Fla. 1st DCA 1982)
- Webb Dean v. McLEOD, 270 So. 2d 726 (Fla. 1972)
- Harris v. Foster Prestress, Inc., 155 So. 2d 865 (Fla. 1963)
- The Fruit Bowl, Inc. v. Louella Cheathem & Fla. Indus. Comm'n, 155 So. 2d 865 (Fla. 1963)