Q: I sustained an injury at my previous job five years ago, and workers' compensation covered the foot surgery. I was out

A: The answer depends on a lot of factors. There are too many to list here. There is a 2-year statute of limitations to file a workers' compensation claim. Therefore, it is important to determine if your claim is still viable after 5 years. You need to determine if your case is still open or if was it settled.

The statute of limitations is a provision in Florida law that ends an injured worker’s right to claim benefits, receive medical treatment, or sue for lost wages. A Florida workers’ compensation claim (a Petition for Benefits) is forever barred unless it is filed within (A) two years from the date of injury, or (B) after the initial two years, within one year of the last payment of compensation or within one year of the last provision of authorized medical treatment or care. See Florida Statute Sections 440.19(1) & (2). This means that following your work accident, it is very important to see your worker’s compensation physician(s) regularly, and no less than once every 365 days.

According to the case law in Florida, two years from the date of injury does not begin to run until the injured worker, as a reasonable person, knew or should have recognized the “nature, seriousness, and probable compensable character of his injury or disease.” See Herb’s Exxon v. Whatmough, 487 So. 2d 1169, 1172 (Fla. 1st DCA 1986) and 440.19(1). However, in most cases, the timeline for the statute of limitations runs from the date of the actual injury/accident.

In Florida, there are some important factors that can create an exception to the statute of limitations including:

If the injured worker is a minor;

If the injured worker is mentally incompetent;

If the Employer misled the injured worker about the worker’s entitlement to workers’ compensation coverage;

If the Carrier misled or failed to inform the injured worker of his or her rights, including but not limited to specifically concerning the statute of limitations; and

If the injured worker has a medical device/ prosthetic device implanted because of the workers’ compensation injury. In Florida worker’s compensation, there is no statute of limitations related to medical care for a prosthetic device. Usually, however, the injured worker’s use of the prosthetic device must be continuous and the Employer/Carrier must be aware of the use of the device. See Gore vs. Lee County School Bd., 43 So.3d 846 (Fla. 1st DCA 2010).

YOU SHOULD SEEK A WORKERS' COMPENSATION LAWYER.