TOM ROY JENKINS, PETITIONER,
v.
M. H. HARRISON CONSTRUCTION COMPANY, BITUMINOUS CASUALTY CORPORATION AND THE FLORIDA INDUSTRIAL COMMISSION, RESPONDENTS
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An employee injured at work sought workers' compensation, claiming the employer/carrier failed to inform him of recommended medical treatment, thereby tolling the statute of limitations. The Florida Supreme Court held that when an employer/carrier receives a physician's treatment recommendation, it must communicate it to the employee and make reasonable efforts to provide the treatment or be estopped from asserting the statute of limitations defense.
The employer/carrier is estopped from asserting the statute of limitations defense under these circumstances. The Workmen's Compensation Act requires the employer/carrier to disclose the physician's treatment recommendation to the claimant and make reasonable efforts to ensure the treatment is administered. The claimant must be given a fair opportunity to knowingly accept or reject such treatment before the statute of limitations bar can be applied.
“In view of the fact that the physician chosen by the employer/carrier recommended further medical care under the guidance of an orthopedic specialist and such care was never furnished, I find that the employer/carrier is estopped from asserting the statute of limitations because of its own failure to act in this matter.”
The Judge of Industrial Claims' finding establishing the estoppel doctrine as the basis for compensation
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Join FLexlaw to unlock all legal intelligenceThe Judge of Industrial Claims found that the employer/carrier's physician, Dr. Clement, recommended further medical care under an orthopedic speciali…
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The Judge of Industrial Claims in this compensation case found: “In view of the fact that the physician chosen by the employer/carrier recommended further medical care under the guidance of an orthopedic specialist and such care was never furnished, I find that the employer/carrier is es-topped from asserting the statute of limitations because of its own failure to act in this matter.”
The Full Commission reversed the award of compensation which was made by the Judge of Industrial Claims on the ground that the claim was barred by the statute of limitations because the “claim was not filed until two years and two months after Dr. Clement made his examination and recommended further remedial treatment which the claimant chose not to take.’’ (emphasis added)
We find nothing in the record to indicate that the claimant knowingly chose not to take the treatment recommended by Dr. Clement. On the contrary, the record fully supports the material finding of the Judge of Industrial Claims with reference to this matter. The report of Dr. Clement recommending further medical care of claimant was sent to the employer/carrier by Dr. Clement. Its disclosures were never made known to claimant.
*912Employer/carrier disputes the finding of the Judge of Industrial Claims that Dr. Clement was the physician chosen by it. We find that while this statement is technically correct and that Dr. Clement was chosen initially not by the employer/carrier but by another physician, Dr. Clement’s report was made to the employer/carrier and paid for by it. Under such circumstances the result is exactly the same as if he had been initially employed and supports the material conclusion of the Judge of Industrial Claims that such conduct es-topped the employer/carrier from pleading the statute as a defense. This self-executing Workmen’s Compensation Act requires the employer/carrier under the circumstances shown by this record to make the recommendation of the physician known to the claimant and make reasonable efforts to see that such treatment is administered. At the very least, the claimant should have an opportunity to either knowingly accept or knowingly reject such treatment to entitle the carrier to plead the statute of limitations.
The Order of the Full Commission is quashed with directions to reinstate the Order of the Judge of Industrial Claims.
It is so ordered.
ERVIN, C. J., and ROBERTS, CARLTON, ADKINS and BOYD, JJ., concur.
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Timmeny v. Tropical Botanicals Corp./Zurich Ins. Co., 615 So. 2d 811 (Fla. 1st DCA 1993)…nd after the 1979 amendments to the Workers’ Compensation Law, have construed the act as requiring that the statute of limitations be tolled if the employer fails to comply with its statutory duty to inform. See Jenkins v. M.H. Harrison Constr. Co., 228 So. 2d 911 (Fla.1969) (E/C estopped from asserting the statute of limitations defense because of its failure to disclose a physician’s report recommending further medical care to the claimant); Riggs v. Al Raska Contracting/Mission Nat’l Ins. Co., [*816] 573 S…
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Raymond v. Rapid Express Parcel Delivery OF Tampa & Claims Ctr., 548 So. 2d 278 (Fla. 1st DCA 1989)…, 475 So. 2d 990 (Fla. 1st DCA 1985); Foster Wheeler Energy Group v. Fairhurst, 405 So. 2d 438 (Fla. 1st DCA 1981); Catalano v. Hillsborough County Board of Public Instruction, 249 So. 2d 24 (Fla.1971); Jenkins v. M.H. Harrison Construction Company, 228 So. 2d 911 (Fla.1969); Engle v. Deerborne School, 226 So. 2d 681 (Fla.1969); Howanitz v. Biscayne Electric, Inc., 139 So. 2d 678 (Fla.1962); Baptist Village v. Newton, IRC 2-3551 (1978), cert. denied, 368 So. 2d 1362 (Fla.1979). In Boyd, supra, the statute of…