                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA
CITY OF DANIA BEACH and
PGCS,                                 NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellants,                     DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-0693

DAVID ZIPOLI,

     Appellee.
___________________________/

Opinion filed October 10, 2016.

An appeal from an order of the Judge of Compensation Claims.
Daniel A. Lewis, Judge.

Date of Accident: January 16, 2009.

George W. Boring, III, Public Entity Legal Solutions, Lake Mary, for Appellants.

Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee.




PER CURIAM.

       In this workers’ compensation case, the Employer/Carrier (E/C) appeals an

order of the Judge of Compensation Claims (JCC) finding that it was estopped from
asserting a statute of limitations defense against the Claimant’s request for benefits.

Because the elements of estoppel were not established in this case, we reverse.

                                       Background

       The Claimant sustained a compensable low-back injury on January 16, 2009.

The E/C provided both medical treatment and indemnity benefits. In September 2009,

the E/C sent the Claimant a letter stating that he had reached maximum medical

improvement (MMI) with a permanent impairment rating (PIR), that he was entitled to

impairment income benefits (IBs) under section 440.15(3), Florida Statutes, and that

his “medical treatment [was] subject to a one-year Statute of Limitations.”1 The parties

have since stipulated that the Claimant reached MMI on July 28, 2009, with a 7% PIR.

       The E/C concedes that it was dilatory in paying one of the IB installments and

admits it never paid the penalties and interest related to this late payment. See

§§ 440.20(6) (penalties) & 440.20(8) (interest), Fla. Stat. (2008). The last payment of

the fourteen weeks’ worth of IBs to which the Claimant was entitled—the most recent

provision of any indemnity benefits to the Claimant—was made on November 3, 2009.

       The medical benefits provided to the Claimant included treatment with Dr.

Christopher Brown. The Claimant’s last visit with Dr. Brown—the most recent

provision of any claim-related medical benefit to the Claimant—took place in May of


1
  The Claimant acknowledges that the E/C timely mailed the informational brochure required by
section 440.185(4), Florida Statutes, detailing the applicable one- and two-year statutes of
limitations.

                                             2
2010. Important to our analysis, when the Claimant later called Dr. Brown’s office to

schedule a follow-up appointment, he was “erroneously” advised that his case was

closed and that he was no longer authorized to receive treatment from Dr. Brown. This

turned out to be a critical component in the untimely advancement of his claim

because, as discussed below, the only evidence of reliance in this record is that the

Claimant believed—mistakenly—that Dr. Brown or his staff was in charge of his case.

                                      Litigation

      On December 22, 2014, more than four years after the Claimant last received

any workers’ compensation benefits, the Claimant filed a petition for benefits (PFB)

seeking authorization of medical care, IBs “at the correct rate,” penalties and interest

on any late payment of indemnity benefits, and attorney’s fees and costs. The E/C

contested the claims, asserting, among other defenses, that the claims were barred by

the statute of limitations found in section 440.19, Florida Statutes, which provides that

a PFB must be filed within two years after the date a claimant knew or should have

known that his injury arose out of a compensable, work-related event, with the

exception that the two-year period is tolled for one year following the date any

indemnity benefit is paid or medical treatment is furnished.

      In response to the E/C’s statute of limitations defense, the Claimant argued four

grounds, albeit intertwined, upon which the E/C was allegedly estopped from asserting

the limitations defense — 1.) Although IBs were paid to the Claimant, one payment


                                           3
was late and should have included penalties and interest; 2.) IBs were not paid at

correct rate based on average weekly wages (AWW) and earnings considerations at the

time of IB payment; 3.) The September of 2009 letter to the Claimant was a

misstatement of the applicable statute of limitations (SOL)2; and 4.) Dr. Brown’s office

advised the Claimant that his case was closed. The Claimant asserted, under grounds

one and two, that the E/C was estopped from asserting the statute of limitations

because the E/C failed to fulfill its mandatory duty to pay, thus leaving the Claimant

unaware of his entitlement to certain classes of benefits—i.e., to penalties and interest

and/or the higher rate of IB payments. Among other cases provided to the JCC, the

Claimant relied on Gauthier v. Florida International University, 38 So. 3d 221 (Fla. 1st

DCA 2010), where this Court concluded that the claimant had detrimentally relied on

the E/C’s failure to comply with its statutory duties—specifically, to obtain an MMI

and PIR and pay IBs based on that PIR—leaving the claimant unaware of her potential

entitlement to benefits and foreclosing her ability to toll the statute of limitations.

Ultimately, the JCC agreed with the Claimant’s Gauthier argument and found that the

E/C was estopped from raising its limitations defense.

                                             Analysis




2
 The record on appeal documents that at the hearing, the Claimant stipulated that he received the full
informational brochure from the E/C as required by section 440.185, Fla. Stat. Accordingly, any
argument under this ground lacks merit.

                                                  4
          We find that the facts in Gauthier are distinguishable from the facts of this case.

Furthermore, the holding in Gauthier must be narrowly construed and only applies to a

unique set of facts substantially similar to the facts of Gauthier.

          In Gauthier, the claimant “showed by uncontested evidence that the E/C failed

to act when it was under a duty to do so and that [the] claimant was misled to her

detriment due to the E/C’s omission.” 38 So. 3d at 225. Thus, in that case, the elements

of estoppel—detrimental reliance on a party’s misrepresentation—were established.

See Deere v. Sarasota Cty. Sch. Bd., 880 So. 2d 825, 826 (Fla. 1st DCA 2004) (“To

demonstrate estoppel, Appellant must show that (1) the E/C misrepresented a material

fact; (2) Appellant relied on the misrepresentation; and (3) Appellant changed her

position to her detriment because of the misrepresentation.”); accord Winans v. Weber,

979 So. 2d 269, 275 (Fla. 2d DCA 2007) (holding that there can be no estoppel when

the party seeking estoppel “was not misled by the other party’s conduct”).

          In Gauthier, the claimant suffered a serious and catastrophic-type injury when

she lost vision in her right eye. 3 Following surgery and recovery, the claimant attended

appointments every other month through June of 2007, when she was instructed to

return for annual visits only. She attended an appointment on June 21, 2007. She later

called in July of 2008 and obtained an annual follow-up appointment for August 5,

2008. When she appeared for the August appointment, she was advised that the E/C


3
    The claimant later regained some level of vision after surgery, but ultimately suffered significant

                                                   5
refused authorization. On these facts, this Court found that the E/C failed to advise

claimant of her undisputed entitlement to significant impairment benefits, failed to

acquire MMI and an impairment rating from the doctors it had authorized, and failed to

pay the impairment benefits. Of note, payment of the impairment benefits would have

tolled the statute of limitations defense. Therefore, the absence of the filing of a PFB

by the claimant was due to the E/C’s failure to acquire MMI and PIR information,

failure to file appropriate DWC forms, and failure to convey accurate information

concerning claimant’s PIR or to initiate IB payments to claimant – which the E/C was

on actual notice were due pursuant to the serious and permanent nature of her injuries.

       By contrast, in this case, there is no record evidence that the Claimant

detrimentally relied on a misrepresentation or omission made by the E/C. Instead, the

only documented detrimental reliance was the Claimant’s reliance on the comments of

Dr. Brown’s office staff, comments unconnected to the E/C. See Dep’t of Revenue ex.

rel. Thorman v. Holley, 86 So. 3d 1199, 1203 (Fla. 1st DCA 2012) (“To satisfy the

reliance prong of equitable estoppel, the party asserting the defense must prove that he

. . . made a detrimental change of position based on a belief in the misrepresented

fact.”). As to ground four of the Claimant’s asserted estoppel arguments, there is no

evidence that the E/C knew about the discussion between the Claimant and Dr.

Brown’s office or in any way gave momentum to the Claimant’s mistaken belief that


and permanent vision loss in the right eye.

                                              6
his case had been terminated. Here, the E/C acquired the MMI and PIR, filed the

appropriate forms documenting the assignment and change of medical status, sent a

letter to the claimant advising of entitlement to IBs, and initiated payment of the IBs.

      Further, the Claimant stipulated that the E/C timely raised the affirmative

defense of statute of limitations and that he received notice of the statute of limitations

via an informational brochure compliant with section 440.185, Florida Statutes. The

merits hearing was bifurcated to address the issue of compensability with a reservation

of jurisdiction over benefits due, if warranted.

       Gauthier does not permit an inference of detrimental reliance whenever and

wherever an E/C has failed to meet a statutory obligation. Simply stated, in this case,

the JCC construed Gauthier too broadly.

                                       Conclusion

      For all of these reasons, we reverse the estoppel of the E/C’s statute of

limitations defense and find that the defense bars compensability and any further

entitlement to benefits.

      REVERSED.

MAKAR, JAY, and M.K. THOMAS, JJ., CONCUR.




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