Nancy Estes v. Palm Beach County School District and Davies Claims in North America, Inc. 1st DCA No.1D2025-0079 (3/23/26)
Overview: The 1st DCA just issued a controversial 52 page(!) EN BANC Opinion (all judges voting, but with two lengthy, strong written dissents—and two judges not participating) which, while touching numerous areas of our WC Law and practice, focuses on one thing: the ‘two clocks’ construction of the statute limitations, as initially championed by former DCA Judge Tenenbaum.
Bottom line: ‘Two clocks’ is now the law. It will forever change the way we calculate the passage of time and entitlement in Workers’ Compensation claims and cases--until and unless the legislature later says otherwise.
Quick projections: While one of the two dissenters was our workers'-compensation-steeped Judge MK Thomas, along with Judge Bilbrey (who cautioned in an earlier opinion, subject to my previous alert sent on 12/23/24 regarding Ortiz v. Winn-Dixie, that the public should disregard the lengthy concurring opinion of Judge Tanenbaum in that case because he continued to argue in favor of the "two clocks" interpretation despite the fact the court had at that time (not so long ago) decided it was not the law.
However Judge Tenenbaum has not only been vindicated at the 1st DCA level, he has gone to the Supreme Court, where he will likely be viewed as the "go to" WC Justice, hence the projection that, even if brought before the Supreme Court on certiorari, it is now much more likely to be affirmed (again, until and unless the legislature later says otherwise).
So what does it mean! This cannot serve as an immersive course: these will surely follow, but the ‘takeaway’ now is the opinion (the guts of which, for a quick read, can be found on page 13) repudiates ‘rolling one-year extensions’ of the S of L following qualifying claim or medical visit. Instead, a countdown is initiated on the date of accident in a compensable claim with every medical visit continuously suspending the countdown of the statute: each qualifying follow-up visit or indemnity payment suspends the running of the time for an additional year. When a thus-tolled year passes, countdown resumes for the time ‘remaining’ on the statute--until one year has run after the last visit/benefit (after the initial two years)--which cannot then again be started up by any action.
Yes, this can go on indefinitely. Yes, this requires a whole new way of timing everything. Yes this is easier to understand in analogous "guardian” cases (which the court used as a reference for how two clocks can easily work) – – then it does on an extremely busy claims handler’s desk! But we are now in it, and fortunately, we are also in the digital/AI age: I'm sure our sophisticated employers/carriers and servicing agents be able to develop native methods of getting this done (assuming some excellent vendor doesn't come along with dedicated software) – – but I'm out of my lane here! Good luck to us all.
Other issues:
What's next: as projected in the overview, given the opinion is 7-to-2, and the progenitor of the ‘two clocks’ rule now resides on the Supreme Court, certiorari is unlikely to alter this outcome (while this still requires other Justices being on board, many now subscribe to the same mindset as Judge Tannenbaum, who we will call "literalists," i.e. those who strongly cleave to the words of the statute in their common everyday meanings, no matter how many legislative sessions have passed since determinative prior panel opinions or the prior opinions themselves (absent extraordinary circumstances).
Yes, there is a possibility of rehearing, but given the degree of thought and controversy, nothing a party is going to come up with is likely to alter this outcome, and yes certiorari might be tried (discussed above). If anything changes or seems amiss in my own thinking I will issue a follow-up.
H George Kagan is proud to be part of Florida's employer carrier claims team stakeholders, defending their vision of the law on behalf of Florida industry.
H. George Kagan, P.A.
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