HOSPITAL HOUSEKEEPING SYSTEMS LLC v. CHERY (2025)

Affirmed.

The employer and its carrier challenge a final compensation order's directive that the carrier authorize the employee's request for a one-time change under section 440.13(2)(f), Florida Statutes. Their primary contention is that the statute of limitation barred the petition for benefits (“PFB”) asserting a claim for the change. The text of the statute itself requires affirmance.

Section 440.19(1), Florida Statutes, requires an employee to file a PFB “within 2 years after the date on which [she] knew or should have known that the injury or death arose out of work performed in the course and scope of employment.” That two-year period is tolled for a one-year period running from each time the employer makes an indemnity payment or furnishes medical care. See § 440.19(2), Fla. Stat. In this case, the employee's compensable accident occurred on January 6, 2020. The carrier provided medical care almost immediately thereafter (that is, within a few days at the most). The last authorized medical care occurred on August 4, 2020. The last indemnity payment was issued on April 19, 2021.

Almost two years remained in the limitation period when the employer provided the first benefit, and that period was continuously tolled until one year after the indemnity payment on April 19, 2021. The limitation period did not run until about two years after the tolling period ended on April 18, 2022—there being no time-bar, then, on the employee's filing a PFB for this injury until approximately April 18, 2024, at the earliest. I previously explained the supreme court's requirement that the statutory term “toll” be applied this way in the context of any statute of limitation, including the one contained in section 440.19. See Ortiz v. Winn-Dixie, Inc., 402 So. 3d 301, 312–18 (Fla. 1st DCA 2024) (Tanenbaum, J., concurring); see also Hankey v. Yarian, 755 So. 2d 93, 96 (Fla. 2000) (explaining that statutory tolling “suspend[s] the running of the statute of limitations time clock until the identified condition is settled” (emphasis supplied)); id. at 97 (highlighting that “a tolling provision interrupts the running of the statutory limitations period,” so the statutory time provided “is not counted against the claimant during” the tolling period (emphasis supplied)); Hearndon v. Graham, 767 So. 2d 1179, 1185 (Fla. 2000) (explaining how “[t]he ‘tolling’ of a limitation period would interrupt the running thereof subsequent to accrual”); cf. McBride v. Pratt & Whitney, 909 So. 2d 386, 388–89 (Fla. 1st DCA 2005) (looking to “well-established line of authority in civil cases” regarding a tolling principle to correctly interpret the statute of limitation in chapter 440, Florida Statutes, noting that “we presume that the legislature was aware of this rule when it enacted” the operative chapter 440 provision).

The employee filed her first PFB on February 25, 2022, well before the limitation period could have run. She dismissed that PFB on September 19, 2022, before the final hearing. Even though that filing would have further tolled the limitation period while it was pending, see § 440.19(3), Fla. Stat.; the employee lost the benefit of that tolling period with her dismissal of the PFB. See McBride, 909 So. 2d at 389 (holding that limitation period “not tolled during the period that an earlier filed petition was pending before it was voluntarily dismissed”). She still had plenty of time left in the remaining limitation period when she filed the PFB on which the judge of compensation claims ultimately rendered his final compensation order, now on appeal. The employer's argument for setting that order aside—that the PFB was time-barred—has no merit. I concur in affirming the order.

Per Curiam.

Osterhaus, C.J., and M.K. Thomas, J., concur; Tanenbaum, J., concurs with opinion.