LARRY BORNEISEN v. HOME DEPOT and SEDGWICK CLAIMS MANAGEMENT SERVICES
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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA LARRY BORNEISEN, Appellant, v. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D04-4954 HOME DEPOT and SEDGWICK CLAIMS MANAGEMENT SERVICES, Appellees. _____________________________/ Opinion filed December 30, 2005. An appeal from an order of the Judge of Compensation Claims. Honorable Doris E. Jenkins, Judge. Mark G. Capron of Smith, Feddeler, Smith & Miles, P. A., Lakeland; Susan W. Fox of Fox & Loquasto, P. A., Tampa; Wendy S. Loquasto of Fox & Loquasto, P. A., Tallahassee, for Appellant. George A. Helm, III, Herbert A. Langston, Jr. and Brian T. Hanley of Langston, Hess, Bolton, Shepard & Augustine, P. A., Maitland, for Appellees. PER CURIAM. Appellant argues that the Judge of Compensation Claims ("JCC") erred by denying his claim arising from injuries sustained during industrial accidents in 1991 and 1992. Specifically, the JCC held that the two-year statute of limitations period for filing such a claim had run, and that the employer/carrier's (E/C) continued provision of palliative treatment to appellant had not revived the limitations period. We agree with appellant that the JCC erred, and therefore reverse. In 2002, appellant filed a claim for benefits arising from the 1991 and 1992 accidents. The JCC specifically found that appellant's prescriptions filled as recently as September 12, 2001 and September 18, 2001 were related to claimant s 1991 and 1992 industrial accidents. The JCC also found that these prescriptions constituted palliative treatment and were paid for by the E/C on December 19, 2001. These findings are supported by competent substantial evidence in the record. The JCC recognized that section 440.19(1)(b), Florida Statutes, provides, as an exception to the two-year statute of limitations, that if the E/C provides remedial attention or rehabilitative services without an award on account of such injury, the claim may be filed within two years after the date of the last remedial attention. However, the JCC ruled that appellant's prescriptions were "palliative" instead of "remedial," and therefore did not revive the statute of limitations. Despite the above findings, the JCC based her ruling upon an erroneous legal distinction between remedial and palliative treatment, construing Ellis v. Galloway's Inc., 794 So. 2d 710 (Fla. 1st DCA 2001), as meaning that only remedial and not palliative treatment is capable of reviving the limitations period under 2 section 440.19. No such distinction was created by Ellis. Ellis merely recognizes that remedial care is capable of reviving the limitations period. 794 So. 2d at 711. Remedial, as it is used in section 440.19, Florida Statutes, has been defined to include palliative care. See City of Orlando v. Blackburn, 519 So. 2d 1017, 1018 (Fla. 1st DCA 1987) (holding that remedial, as it is used in Section 440.19, includes all medical treatment or attention which is reasonably necessary to treat a compensable injury or to mitigate its effects or conditions ); see also Colvin v. Colvin, 544 So. 2d 269 (Fla. 1st DCA 1989) (holding [c]laimant s continued receipt of treatment provided by the E/C (whether remedial or palliative) extended the limitations period for filing his claim ). Accordingly, the limitations period on appellant s 1991 and 1992 industrial accidents was revived when the E/C provided appellant with palliative treatment in 2001. On remand, the JCC is directed to treat appellant s claim as timely filed. REVERSED and REMANDED for further proceedings. WEBSTER, BROWNING AND POLSTON, JJ., CONCUR. 3
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