Thought Leadership

The First District Court of Appeal issued another opinion in the ongoing statute of limitations saga triggered by the 2023 opinion in Ortiz v. Winn-Dixie, Inc., 361 So. 3d 889 (Fla. 1st DCA 2023) (Ortiz I). The new opinion, also written by Judge Tanenbaum, in Ortiz v. Winn-Dixie, Inc., No. 1D2021-0885, (Fla. 1st DCA 2024) (Ortiz II), supersedes the original. Far from clarifying the issue, Ortiz II leaves many questions unanswered. 

Ortiz I introduced the “two-year master countdown timer” and “tolling timer” concepts in explaining how to construe the time bars for filing petitions for benefits as set forth in section 440.19, Florida Statutes. In so doing, Ortiz I held the one-year tolling provision in section 440.19(2)—prompted by furnishing medical care or paying compensation—does, in fact, apply within the first two years following an accident, something prior case law held otherwise. Thus, under Ortiz I, if an employer/carrier provided benefits immediately following an accident, the initial two-year master timer would never even start ticking, and claimants could effectively “bank” that time. 

By contrast, Ortiz II makes no mention whatsoever of the master countdown/tolling timers. Rather, the new majority opinion focuses only on whether the specific treatment the claimant received qualified as medical care “furnished” by the employer/carrier and was sufficient for the one-year tolling provision in section 440.19(2). Ortiz I held it did not qualify and upheld the judge of compensation claim’s dismissal of the claim. Ortiz II now holds it did qualify and, thus, allowed the claimant’s claims to proceed.

Following the claimant’s accident, the employer/carrier authorized treatment, ultimately requiring the removal of her right kidney. The employer/carrier then authorized and paid for care over many years in the form of annual “kidney follow-ups” with a urologist. At one point in 2019, however, the authorized doctor began sending his medical bills to the claimant’s personal health insurance. The claimant testified she used her health insurance because someone at her doctor’s front desk told her to do so. When the employer/carrier reached out to this doctor’s office after not having received any bills for quite some time, they were advised of the billing situation. Because one year had elapsed from the last visit it paid for, the employer/carrier asserted a statute of limitations defense and denied further care.

The Ortiz II majority noted, the employer/carrier had entered into a broad stipulation accepting compensability of the injury and had not limited their acceptance of compensability for the kidney to any set of symptoms or diagnoses. Since the claimant presented evidence showing that the nature of the treatment both before and after the billing switch was essentially the same, the employer/carrier had to show “a break in causation” such that the treatment of the urological condition was no longer related to the loss of her kidney. In the court’s opinion, the disputed visits were of a piece with the care the employer/carrier had authorized for years. The court further stated the doctor’s decision to bill the claimant’s personal insurance for the contested visits did not alter the analysis. It was not for the doctor to decide whether the visits fit within the employer/carrier’s authorization. It noted, the court repeatedly held that “who gets billed has no legal bearing on the tolling question.” 

Because the question of whether the “two-year master countdown timer” ever started ticking was not squarely before the court and not raised by the parties, Ortiz II removed that discussion from the majority opinion. Left unanswered, then, for the parties and practitioners is the effect of providing benefits at the beginning of a claim and whether claimants can carry that time forward. Judge Tanenbaum wrote a lengthy, separate and concurring opinion, arguing in detail why his calculation methodology in Ortiz I is the correct reading of the statute. Judge Bilbrey’s short and concurring opinion clarifies that Judge Tanenbaum’s concurring opinion has no precedential value and, if the question arises again, “his reasoning may be found to be persuasive or may be discarded.”

Superficially, Ortiz II is not a groundbreaking case. It simply holds that employers/carriers cannot present “Get Out of Jail Free” cards and then deny further care by showing that claimants treated with authorized providers unbeknownst to the employers/carriers or that the visits were not billed to the employers/carriers for over one year, so long as the visits were of a piece with previously authorized care. 

The real significance of Ortiz II is what it leaves unsaid. For now, parties, practitioners and, of course, judges are left wondering if we once again live in the simple “two-year/one-year” calculation method of pre-Ortiz I or whether the court will ultimately adopt the more complicated Ortiz II methodology at some point in the future after all. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 2, February 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}