Addressing ‘Limitations’ Statute After Estes
By reinterpreting the word “toll” in Section 440.19(2), Fla. Stat., the Court has upended three decades of settled law, replacing the traditional ‘extension’ of time remaining under the statute of limitations now with a "two clocks" method that suspends the running of the limitations period.
What follows are the perspectives of two veterans--Randall T. Porcher, prevailing lead claimant’s attorney in Estes, and your undersigned, HGK--which began as an exchange of emails and evolved into this three-part collaborative commentary. It offers practical metaphors and suggestions for our "new math" which has flipped “add” into “subtract!” Or:
- The Court’s Phrasing: "Two Clocks" method.
- RTP’s Refinement: "One Calendar" method.
- HGK’s Adaptation: "Clock & Timer" method.
Presented in the order it developed, this discussion is intended not as a definitive legal statement but as a way to better visualize and then understand counting time in the post-Estes environment.
I. RTP’s “One Calendar”
Unlike social security offsets, AWW calculations, or third-party liens, only two pieces of information are needed to calculate the statute of limitations:
- Date of Accident.
- Dates of Authorized Care and indemnity
THE CORE RULE: The 2-year (730-day) statute is a bank of time that only depletes when benefits are NOT being provided. Any provision of medical or indemnity "tolls" (pauses) the clock for 365 days.
Start with 730 days, two years.
From the date of accident, the statute begins to run with a two-year (730-day) limitations period. It cannot increase. The 730 can only go down—or stay paused—and this is the statute of limitations.
The Work Comp Tamagotchi. When it hits zero, the statute has run.
The first two years on any case is exactly as it has always been. It is only after two years has run that one must do a little math—it’s easy, and it’s subtraction
The First treatment is an important date, because the 730 days begins to run on the date of the accident, and the number of days between the accident and the first provision of benefits will deplete the 730 days by as many days.
If the injured employee goes to a clinic 2 days after the date of accident, the 730 is reduced to 728 days, but then this pauses the 728 for one year.
Any payment of indemnity or medical expenses pauses (tolls) whatever time remains of the 730 days for a period of one year.
Thus, as long as payments occur within 365 days of each other, time stays paused, and there is nothing to calculate.
If no gap of 365 consecutive days occurs between payments, the statute does not run further.
Again: only a 365-day gap restarts the depletion of days.
When—and only when—a full year passes with no payment, the statute resumes running.
At that point, only the number of days beyond the 365-day pause are deducted from the remaining balance of the original 730 days.
The statute runs when the remaining balance reaches zero.
If the remaining portion of the 730 days is exhausted, the statute has run.
If time remains, it has not.
What This Means Practically
You never “extend” the statute.
You never reset it.
You simply ask one question:
Has there been a 365-day gap since the last payment?
If the answer is no, the statute remains paused.
If the answer is yes, subtract the excess days from what remains of the original 730.
II. HGK’s metaphorical way to help visualize it.
My Estes ‘Landmark Alert” issued when the decision came out contained the original version of the method discussed below, tweaked a little here. There will undoubtedly be programs computing this for us effortlessly, but even so--or until they arrive--here is a graphic description to help you better understand how this works.
The Clock and the Timer: Picture a new instrument on your desk, a small cabinet with two clock faces on it.
On the left: A “TWO-YEAR MASTER” CLOCK.
- Every new accident claim gets a Master Clock.
- It only chimes once—at the end of the only thing it times-- a two year period.
- It has two buttons: ‘Start’ (which can only be pushed once!), and ‘Pause/Resume.’
On the date of accident, you press ‘start’ on the Master Clock.
Example of simplest operation:
- Claimant goes to the clinic on the date of accident and neither sees the doctor again nor files a PFB.
- Master Clock chimes at two years.
- Claim over!
- But:
On the right: The “ONE-YEAR TIMER”
- Where Claimant receives treatment after the date of accident, or files a PFB, or any other event occurs that would ‘toll’ (pause) our ‘former’ statute, the claim then ALSO gets assigned a “One-Year Timer”.
- It has a ringer, one that goes off at the end of one year. And it has a “start/restart button” button.
- You will be pressing this button a lot.
- Whenever you press ‘start/restart’ on the one-year timer--whether on the 2nd day or the 729th day--a new 1-year cycle begins, repeatable indefinitely.
III. A final, collaborative metaphor to help visualize operation--
- You rent a movie called “The Statute,” which has a run time of two-years.
- The movie begins with ‘the accident,’ and its two-year run time starts counting down.
- Your ‘remote’ has only two buttons: ‘Play/Resume,’ and ‘Pause.’
Every time you pause, the pause lasts one year. Every day that has passed--before the first pause--and between subsequent pauses, is permanently deducted from the 730 day run time.
That’s All Folks!
IV. QUICK REFERENCE: The Estes "New Math"
THE CALCULATION CHECKLIST
STEP 1: Count the days between the Date of Accident and the First Benefit provided. Subtract this from 730.
STEP 2: Count the days between the Last Benefit provided and Today (or the date of the new PFB).
STEP 3: Subtract 365 days (the "toll" period) from the Gap.
STEP 4: Subtract the Excess Days from your Remaining Bank.
VERDICT: If the balance is above 0, the statute has NOT run.
H. George Kagan, P.A.
[email protected]
