CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2002 WL 31373480
...If a claimant contends that an employer or its carrier is estopped from raising a statute of limitations defense and the carrier demonstrates that it has provided notice to the employee in accordance with s.
440.185 and that the employer has posted notice in accordance with s.
440.055, the employee must demonstrate estoppel by clear and convincing evidence. (Emphasis added). Appellant argues that the emphasized language must be read to say that the E/C's failure to comply with either section
440.185 or section
440.055 estops the E/C from raising a statute of limitations defense. Under that view, no matter what the claimant may have known about her rights, the E/C can never raise a statute of limitations defense if it has failed to comply strictly with the provisions of either section
440.185 or
440.055....
...following her last visit to Dr. Loeb." Coleman,
743 So.2d at 1201. Implicit in this court's decision in Coleman was a rejection of Appellant's claim that a claimant need only show that the E/C failed to comply strictly with either section
440.185 or section
440.055 in order to estop the E/C's statute of limitations defense....
...We read the statute to say that after the E/C *230 raises a statute of limitations defense, the claimant must prove that the E/C should be estopped from raising the defense. The burden of proof on the claimant is a preponderance of the evidence, unless the E/C has complied with both sections
440.185 and
440.055, in which case the claimant has a higher burden of proof clear and convincing evidence....
...I, therefore, join the majority in reversing the JCC's order. However, I do not agree that section
440.19(4), Florida Statutes (1995), requires that the claimant must prove estoppel by a preponderance of the evidence unless the E/C complies with sections
440.185 and
440.055, Florida Statutes (1995)....
...at an employer or its carrier is estopped from raising a statute of limitations defense and the carrier demonstrates that it has provided notice to the employee in accordance with s.
440.185 and that the employer has posted notice in accordance with s.
440.055, the employee must demonstrate estoppel by clear and convincing evidence....
...Because the Coleman decision is unclear regarding the carrier's compliance with section
440.185, I cannot agree with the majority that the decision implicitly rejected any "claim that a claimant need only show that the E/C failed to comply strictly with either section
440.185 or section
440.055 in order to estop the E/C's statute of limitations defense." Proof of a claimant's actual knowledge of workers' compensation rights and obligations is only relevant after the carrier demonstrates compliance with section
440.185....
CopyPublished | Florida 1st District Court of Appeal | 2000 Fla. App. LEXIS 11281, 2000 WL 1232997
...In the order under review the judge of compensation claims nevertheless determined that the injury suffered in the course and scope of employment by the appellee, an employee of the appellant, was compensable under principles of es-toppel because the appellant had not posted the notice referenced in section 440.055, Florida Statutes (1995). We reverse the order because section 440.055 is of doubtful applicability to the appellant and, in any event, the record provides no factual basis for a finding of estoppel. Section 440.055 provides as follows: An employer who employs fewer than four employees, who is permitted by law to elect not to secure payment of compensation under this chapter, and who elects not to do so shall post clear written notice in a conspi...
...n business outside the construction industry may “elect” not to secure compensation. Chapter 440 automatically relieves such employers of any obligation to secure compensation, and no separate election is required. And finally, the references to
440.055 in sections
440.185 and
440.19 strongly suggest that the notice required by
440.055 is notice which must be given to an employee who is entitled to benefits, not to an employee such as the appellee. Although it is possible that the
440.185 and
440.19 references to
440.055 reflect a legislative error, this seems unlikely in light of the fact that the relevant
440.185 and
440.19 language was inserted by the same session law that amended section
440.055 to its current form. See Ch. 93-415, § 4 at 75, § 22 at 183, § 23 at 135, Laws of Fla. We therefore do not understand section
440.055 to require an employer such as the appellant to post notice. But even if
440.055 were read to have required the appellant to post notice, this case does not present a factual situation justifying application of principles of estoppel....
