SPECIAL DISABILITY TRUST FUND, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, STATE OF FLORIDA, APPELLANT,
v.
FLORIDA POWER CORPORATION AND GAB BUSINESS SERVICES, INC., APPELLEES

Fla. 1st DCA | 1990-03-09
No. 89-1600
ERVIN and WENTWORTH, JJ., concur.
558 So. 2d 130 Florida District Court of Appeal, First District (1990) Caution
Cited by 10 cases

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Synopsis

The Special Disability Trust Fund appeals a judgment requiring it to reimburse an employer/carrier for excess workers' compensation benefits paid to an employee with a preexisting condition. The court reversed, holding that the employer/carrier's claim against the Fund was time-barred under the 60-day notice requirement of Section 440.49(2)(g), Florida Statutes, and that adopting a new maximum medical improvement date did not revive the expired claim.


Holding

The employer/carrier's claim against the Fund is barred by the 60-day notice requirement because it was not asserted within 60 days after the first payment of excess compensation in 1984. The adoption of a new maximum medical improvement date does not revive a claim that was previously extinguished by the passage of the 60-day deadline.


Headnotes

[1] A claim for reimbursement from the Special Disability Trust Fund is barred if written notice is not filed within 60 days after the order awarding excess permanent compens…

[2] A settlement agreement establishing a maximum medical improvement date does not revive a previously extinguished claim against the Special Disability Trust Fund.

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Key Quotes

“The clear intent, and effect [of the 60-day limitation in the pre-1987 Section 440.49(2)(g), Florida Statutes] is that the claim is barred ... it is dead and no further act by ANYONE can breathe life into the right to claim reimbursement as to those benefits.”

Establishes the absolute and irrevocable nature of the 60-day deadline for filing claims against the Fund.

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Facts & Procedural History

Gerald Coulombe was employed by Florida Power Corporation starting April 16, 1981. He sustained a work-related injury to his right leg on January 25, …

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Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

Appellant, Special Disability Trust Fund (Fund), appeals the judge of compensation claims’ order finding employer/carrier entitled to reimbursement from the Fund in accordance with Section 440.49, Florida Statutes. We reverse.

The claimant, Gerald Coulombe, became employed by Florida Power Corporation on April 16, 1981. On January 25, 1982, he injured his right leg in a work-related accident, resulting in a right femoral hernia and thrombophlebitis. Medical testimony established that the 1982 injury was aggravated by and caused an aggravation of a 1980 crushing injury to Coulombe’s legs.

Thereafter, employer/carrier paid appellant wage loss benefits from September 1984 through August 1985. On September 80, 1986, Coulombe and employer/carrier entered into a washout settlement in regard to his 1982 claim, in which they stipulated to a November 1, 1982 maximum medical improvement date. Employer/carrier filed its initial claim against the Fund on February 24, 1986, and filed a renewed claim on September 29, 1986.

Section 440.49(2)(g) (1981) provides that an employer/carrier’s right to reimbursement from the Fund is barred unless written notice of the claim therefor was filed

prior to 60 days after the order awarding the excess permanent compensation ... becomes final or, if payment of such excess ... is made ... without an award, prior to 60 days after the date the first payment of excess compensation for the permanent disability was made.1

Employer/carrier’s claim against the Fund is based upon its position and the evidence in the record that the 1982 injury, and all of its ramifications, were affected by the preexisting condition caused by the 1980 injury and evidence presented at the hearing in this ease supports that contention. Therefore, if that is the case, the wage loss benefits paid in 1984 necessarily contained excess compensation.

The fact that a different maximum medical improvement date has been adopted by the judge of compensation claims for purposes of determining employer/carrier’s Fund claim does not revive employer/carrier’s claim against the Fund in this case. As recognized in Special Disability Trust Fund, Department of Labor and Employment Security, State of Florida v. Southern Bell Telephone and Telegraph Co., 551 So. 2d 575 (Fla. 1st DCA 1989), citing Special Disability Trust Fund v. Brevard County Board of Public Instruction, 9 FCR 164 (1975), cert. denied, 320 So. 2d 392 (Fla.1975):

The clear intent, and effect [of the 60-day limitation in the pre-1987 Section 440.49(2)(g), Florida Statutes] is that the claim is barred ... it is dead and no further act by ANYONE can breathe life into the right to claim reimbursement as to those benefits.

The claim is forever barred if not asserted within the time limit. Southern Bell Telephone and Telegraph Co.; Special Disability Trust Fund v. Robbins Manufacturing Co., 484 So. 2d 54 (Fla. 1st DCA 1986). Just as in Southern Bell Telephone and Telegraph Co., where the 1987 amendment to the above statute was deemed not to revive an action which previously had been extinguished, the fact that a new MMI date was adopted by the judge of compensation claims for purposes of employer/carrier’s claim against the Fund in this case does not revive that action which previously was extinguished 60 days after the payment of excess compensation in 1984. Therefore, employer/carrier’s claim against the Fund is barred. The remaining points raised by the Fund need not be addressed.

REVERSED.

ERVIN and WENTWORTH, JJ., concur. . In 1987, that statute was amended to change the 60-day period to a two-year period after the employee last reached MMI, or after the date of the first payment of compensation for permanent total disability, wage loss, or death, whichever is later.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • …il 26, 1988. Therefore, all benefits paid pursuant to that time were considered temporary and the claim for reimbursement was timely. The JCC went on to distinguish this court’s decision in Special Disability Trust Fund v. Florida Power Corporation, 558 So. 2d 130 (Fla. 1st DCA 1990). The judge noted that the present case involved no stipulated MMI date and was not related solely to a wage loss ^ claim. He noted that this case involved multiple MMI dates due to the existence of mental as well as physical prob…
  • …MMI expired, the claim could not be revived by the fact that a different MMI date was subsequently expressed. Special Disability Trust Fund v. Champion Int'l, 584 So. 2d 619 (Fla. 1st DCA 1991); Special Disability Trust Fund v. Florida Power Corp., 558 So. 2d 130 (Fla. 1st DCA 1990). Similarly, once the two year period after the first payment of wage loss benefits had expired, the claim could not be revived by payment of a different type of permanent compensation. The order is reversed and the cause is rema…
  • …MMI expired, the claim could not be revived by the fact that a different MMI date was subsequently expressed. Special Disability Trust Fund v. Champion Int’l, 584 So. 2d 619 (Fla. 1st DCA 1991); Special Disability Trust Fund v. Florida Power Corp., 558 So. 2d 130 (Fla. 1st DCA 1990). Similarly, once the two year period after the first payment of wage loss benefits had expired, the claim could not be revived by payment of a different type of permanent compensation. Id. at 145. Executone and other cases from…

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