IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
RICARDO SANCHEZ, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-4907
AMERICAN AIRLINES AND
SEDGWICK CMS,
Appellees.
_____________________________/
Opinion filed July 14, 2015.
An appeal from an order of the Judge of Compensation Claims.
Margret G. Kerr, Judge.
Date of Accident: August 25, 2011.
Toni L. Villaverde of Toni L. Villaverde, PLLC, Coral Gables, for Appellant.
Clinton C. Lyons, Jr., and Frank Garcia of Moran, Kidd, Lyons, Johnson, P.A.,
Miami Lakes, for Appellees.
PER CURIAM.
In this workers’ compensation case, Claimant argues that the Judge of
Compensation Claims (JCC) erred in finding that his April 2014 petition for benefits
(PFB) was barred by the statute of limitations in section 440.19, Florida Statutes
(2011). Finding no error in the JCC’s application of the law to the facts, we affirm.
Subsection (1) of section 440.19 provides generally that a PFB must be filed
within two years after the date of injury or it will be barred, and subsection (2)
provides that the only events that will extend the statute of limitations are the
payment of indemnity benefits or the furnishing of medical treatment. Here, the
April 2014 PFB was filed more than two years after Claimant’s date of injury and
more than one year after the last provision of medical or disability benefits, but it
was filed within one year after the JCC dismissed a prior PFB and ordered the
employer/carrier to pay attorney’s fees to Claimant’s counsel. Consequently, the
narrow question presented in this case is whether the payment of attorney’s fees to
Claimant’s counsel—with no other medical or disability benefits being paid
simultaneously to Claimant and no PFBs pending—is sufficient to extend the statute
of limitations under subsection 440.19(2). For the reasons that follow, we answer
this question in the negative.
Claimant’s previously filed PFB has no bearing on whether the statute of
limitations has run because “when an action is dismissed, the statute of limitations
is not tolled during the period that the dismissed action was pending; rather, the
statute will run as if the dismissed action had never been filed.” McBride v. Pratt &
Whitney, 909 So. 2d 386, 388 (Fla. 1st DCA 2005); see also Kinsey v. Skyline Corp.,
395 So. 2d 626, 627 (Fla. 1st DCA 1981). This holding is not undercut by Longley
v. Miami-Dade County School Board, 82 So. 3d 1098, 1100 (Fla. 1st DCA 2012),
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upon which Claimant relies. That decision held that a PFB filed before the resolution
of a pending attorney’s fee claim is not barred by the statute of limitations because
the statute of limitations does not operate while a PFB is pending. Here, because
there was no other PFB pending when the April 2014 PFB was filed, Longley is
inapplicable.
Claimant also contends that the payment of an attorney’s fee resulting from
the prior PFB is sufficient to toll the statute of limitations. We reject this argument
because it is well-settled that the payment of an attorney’s fee is neither a payment
of compensation nor the furnishing of medical treatment—the only two events that
will extend the statute of limitations under subsection 440.19(2). Specifically, this
court determined in Houston-Miller v. U.S. Fire Insurance, 668 So. 2d 653, 653-54
(Fla. 1st DCA 1996), that for purposes of determining whether the statute of
limitations ran, “payment of an attorney’s fee to the claimant’s attorney is not the
‘payment of compensation’ within the meaning of section 440.19(1)(b), Florida
Statutes (1985).” The definition of “compensation” in the 2011 statutes applicable
in this case is the same as that in the 1985 statute construed in Houston-Miller.
Moreover, even though “indemnity” is not defined in chapter 440, case law
recognizes “indemnity” as one of the two categories of benefits provided to a
claimant—compensation and medical treatment. See Rene Stone Work Corp. v.
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Gonzalez, 25 So. 3d 1272, 1273 (Fla. 1st DCA 2010) (explaining one issue on appeal
was whether JCC erred by “awarding Claimant temporary indemnity benefits”).
In sum, because the JCC correctly determined that Claimant’s April 2014 PFB
is barred by the statute of limitations, we affirm the summary final order dismissing
the petition.
AFFIRMED.
THOMAS, WETHERELL, and RAY, JJ., CONCUR.
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