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March 23, 2026 Get Citation Alerts Download PDF Add Note

Estes v. Palm Beach County School District, Davies Claims North America, Inc.

District Court of Appeal of Florida

• Citations: None known
• Docket Number: 1D2025-0079

• Disposition: Reversed

• Opinion

• Authorities (62)

• Cited By (0)

• Summaries (0)

• Similar Cases (2K)

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Disposition

Reversed

Combined Opinion

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA

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No. 1D2025-0079

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NANCY ESTES,

Appellant,

v.

PALM BEACH COUNTY SCHOOL
DISTRICT, and DAVIES CLAIMS
NORTH AMERICA, INC.,

Appellees.

---

On appeal from the Office of the Judges of Compensation Claims.
Gregory J. Johnsen, Judge of Compensation Claims.

Date of Accident: September 30, 2021.

March 23, 2026

EN BANC

OSTERHAUS, C.J.

In 1994, a comprehensive revision of the Workers’
Compensation Law became effective in Florida. As part of that
overhaul, the Legislature replaced a statute of limitations regime
in § 440.19(1), Florida Statutes, that had allowed claimants to
obtain successive two-year extensions to seek benefits. The revised
law took a stricter tolling approach under which a claimant’s
receipt of injury-related treatment or benefits would “toll the
[original two-year] limitations period set forth above . . . for 1 year
from the date” that the benefits were provided or paid. § 440.19(2),
Fla. Stat. (emphasis added). Nancy Estes’s case turns on the
meaning of this tolling provision. Because the term “toll” here
means to suspend, stop temporarily, or abate the “limitations
period set forth above,” rather than extending a discrete one-year
period to file additional claims, we set aside the final order which
dismissed Estes’s petition for benefits on timeliness grounds. 1

I.

Nancy Estes was a teacher employed by the Palm Beach
County School District. On September 30, 2021, she tripped and
fell on the job sustaining an accidental injury that was accepted as
compensable by Appellees, the employer/carrier (E/C). The E/C
paid workers’ compensation medical and indemnity benefits to
Estes for about sixteen months, from October 2021 to January
2023. According to the parties’ hearing stipulation, the last date
the E/C furnished any benefit was January 26, 2023. After that,
the E/C filed a Notice of Denial on February 8, 2023, signaling its
intention to deny any additional future medical treatments or
benefits based on allegations that the accident was not the major
contributing cause of her need for such treatments or benefits. In
June 2024, about seventeen months after receiving her last
benefits, Estes filed a petition for benefits (PFB). She sought a one-
time change in orthopedists and other benefits. The E/C denied her
claims contending that the statute of limitations barred them all.

1 This appeal has been decided en banc because, as discussed

below, it corrects our interpretation of § 440.19(2) in a way that
directly conflicts with how several previous panels of this court
applied the tolling provision in cases such as: Orange Cnty. Sch.
Bd. v. Best, 728 So. 2d 1186, 1188 (Fla. 1st DCA 1999); Claims
Mgmt., Inc. v. Philip, 746 So. 2d 1180, 1181 (Fla. 1st DCA 1999);
Medpartners/Diagnostic Clinic Med. Grp. v. Zenith Ins. Co., 23 So.
3d 202, 204, 206 (Fla. 1st DCA 2009); Varitimidis v. Walgreen
Co./Sedgwick Claims Mgmt. Services, Inc., 58 So. 3d 406, 407–08
(Fla. 1st DCA 2011); Sanchez v. Am. Airlines, 169 So. 3d 1197, 1198
(Fla. 1st DCA 2015). See Fla. R. App. P. 9.331(a) (allowing for en
banc hearings if “necessary to maintain uniformity in the court’s
decisions”).

2
The Office of the Judges of Compensation Claims took up the
matter and, by agreement of the parties, held a first-step final
hearing, focusing upon the timeliness of Estes’s petition and the
proper application of the limitations and tolling provisions in
§ 440.19. The PFB had been filed more than two years after the
accident and more than a year after the furnishment of the last
compensation benefit. And so, the Judge of Compensation Claims
(JCC) followed the statute-of-limitations approach from Best,
Philip, and similar precedents and concluded that § 440.19(1)’s
two-year statute of limitations had lapsed after having never been
suspended or abated by operation of § 440.19(2). Instead, the final
order concluded that § 440.19(2) had gained Estes a discrete
extension to file her claim calculated one year from the date on
which she last received treatment or benefits from the E/C. The
JCC’s Final Order thus dismissed with prejudice Estes’s entire
PFB on statute of limitations grounds. The Final Order
alternatively considered Estes to have raised compensability
issues, to which the tolling provision in § 440.19(2) doesn’t apply.

Estes subsequently appealed and argued that the tolling
provision had been incorrectly interpreted and applied. In Estes’s
view, § 440.19(2) suspended the original two-year statute of
limitations clock for a substantial period, such that her PFB was
filed well within the applicable statutory deadline and shouldn’t
have been dismissed as untimely. More specifically, because the
E/C had furnished Estes care and benefits for sixteen months,
starting almost immediately after her injury until January 2023,
those benefits tolled—meaning suspended or abated—the running
of § 440.19(1)’s two-year limitations clock until one year after the
E/C furnished her last treatment and benefits. And so, the two-
year limitations clock didn’t even begin running again until the
expiration of the separate one-year tolling clock established by
§ 440.19(2), which was January 2024 at the soonest. Consequently,
due to the tolling, Estes claimed to have most of the original two-
year limitations period still intact when she filed her PFB in June
2024.

3
II.

A.

This case requires us to decide whether the E/C’s provision of
workers’ compensation treatment or benefits suspends the
running of the two-year statute of limitations in § 440.19. Estes
argues that her June 2024 petition for benefits was timely filed
because her receipt of injury-related benefits through January
2023, suspended § 440.19(1)’s two-year limitations clock until one
year after she received the last benefits and then resumed running
in January 2024 (which gave her until January 2026 to file her
PFB). Whereas the E/C views the two-year statutory limitations
period to have never been stopped after the date of the accident,
except that claimant got the benefit of a separately running one-
year extension, which ran past the end of the limitations period,
ending one year after receiving her last treatment or benefits in
January 2023 (which gave her only until January 2024 to file a
PFB). 2

The history of legislative revisions to § 440.19 is relevant to
analyzing the parties’ competing statute-of-limitations arguments.
Starting in 1994, the Legislature changed the text of the operative
statute of limitations provision in § 440.19 from an extension-
based regime to a tolling-based one. Before 1994, the pertinent text
stated as follows:

(a) The right to compensation for disability,
rehabilitation, impairment, or wage loss under this
chapter shall be barred unless a claim therefor which
meets the requirements of paragraph (e) is filed within 2
years after the time of injury, except that, if payment of
compensation has been made or remedial treatment or
rehabilitative services have been furnished by the

2 Estes also argued on rehearing before the JCC that her
limitations period extended even further because payments for her
benefits were made by the E/C on a later date. We see, however,
no error in the JCC’s rejection of that argument on preservation
grounds.

4
employer on account of such injury, a claim may be filed
within 2 years after the date of the last payment of
compensation or after the date of the last remedial
treatment or rehabilitative services furnished by the
employer. This limitations period shall not be tolled or
extended by the failure of the employer or carrier to file a
notice of injury. . .

(b) All right for remedial attention under this section
shall be barred unless a claim therefor which meets the
requirements of paragraph (e) is filed with the division
within 2 years after the time of injury, except that, if
payment of compensation has been made or remedial
attention or rehabilitative services have been furnished by
the employer without an award on account of such injury,
a claim may be filed within 2 years after the date of the
last payment of compensation or within 2 years after the
date of the last remedial attention or rehabilitative
services furnished by the employer; and all rights for
remedial attention or rehabilitative services under this
section pursuant to the terms of an award shall be barred
unless a further claim therefor is filed with the division
within 2 years after the entry of such award, except that,
if payment of compensation has been made or remedial
attention or rehabilitative services have been furnished
by the employer under the terms of the award, a further
claim may be filed within 2 years after the date of the last
payment of compensation or within 2 years after the date
of the last remedial attention or rehabilitative services
furnished by the employer. However, no statute of
limitations shall apply to the right for remedial attention
relating to the insertion or attachment of a prosthetic
device to any part of the body. . .

§ 440.19(1)(a)−(b), Fla. Stat. (1993) (emphases added).

Under this pre-1994 regime, the Florida Supreme Court
consistently treated the highlighted language as an extension of
the statute of limitations as opposed to a suspension of it. See
Sargent v. Evening Indep., Inc., 62 So. 2d 58, 60 (Fla. 1952);
Watson v. Delta Airlines, Inc., 288 So. 2d 193, 196 (Fla. 1973)

5
(“Thus, on the dual basis of 1) ‘remedial’ attention having been
voluntarily furnished within the two years required by the same
exceptions within the two statutes, and 2) compensation
voluntarily paid ‘without an award’ also within such two years, the
claimant falls within the statutory exceptions in s 440.13(3)(b) and
s 440.19(1)(a) and is within such ‘extended’ two year statute of
limitations as a basis for recovery.” (emphasis added)); cf. Daniel
v. Holmes Lumber Co., 490 So. 2d 1252, 1256 (Fla. 1986) (“Yet in
the case of sections 440.13(3)(b) and 440.19(1)(a) no ambiguities
exist. These statutes unequivocally state that so long as an
employee files a claim within two years of the last voluntary
compensation payment or dispensation of remedial treatment
made without an award the claim is timely. Neither statute
contains any reference whatsoever to the relevance of a two-year
gap in time.”) (citations omitted); Holder v. Keller Kitchen
Cabinets, 610 So. 2d 1264, 1267 (Fla. 1992) (“This provision has
since been redesignated section 440.19(1)(a). This amendment
removed the limitation restricting the exception to the two-year
limitation period for filing a claim for compensation to situations
where payment of compensation or remedial treatment was
voluntarily provided. Thus, under the plain language of the
amendment, the extension of the limitations period applies where
payment of compensation or remedial treatment has been provided
either voluntarily or pursuant to an order. Amendments, such as
this, that lengthen the limitation period for filing a claim apply to
claims that are viable at the time of the amendment.” (emphasis
added) (citations omitted)). And so, with each new payment or
treatment came a fresh two-year extension of the limitations
period, leaving the original two-year period completely in its wake.

This court also treated the prior language as either an
extension of the limitations period or, similarly, a revival of the
limitations period. See Iuen v. Live Wire Elec. Co., 538 So. 2d 1312,
1313 (Fla. 1st DCA 1989) (“Voluntary payment for remedial
attention revives the two year limitation period, even if a two year
period without compensation payments or remedial attention has
already passed.”); Roe v. City Inv./Gen. Dev. Corp., 587 So. 2d
1323, 1324, 1325 (Fla. 1991) (“Hence the statute in its present form
unambiguously states that a claimant is entitled to disability if a
claim is filed within two years of the last remedial treatment. We
therefore hold that a claim for disability is not time-barred, despite

6
a two-year gap between the injury and the claim, so long as the
claim is filed within two years after the last remedial treatment.”);
Bell v. Com. Carriers, 603 So. 2d 683, 685 (Fla. 1st DCA 1992)
(“Under the clear language of the statute, the fact that the
employer may not have intended to voluntarily provide remedial
treatment and thus revive the statute of limitations for the 1981
injury is not controlling. Remedial treatment need not be
voluntary in order to revive the statute. The critical question is
whether the claimant has filed a claim within two years of the last
compensation payment or remedial treatment causally related to
a compensable injury.” (emphasis added) (citations omitted)).

But in 1994 the Legislature tightened the statute of
limitations provision in § 440.19, by pivoting to a tolling regime
that fixed the two-year period in subsection (1) altogether as the
ultimate basis for calculating the limitations period when benefits
are provided. It stated:

(1) Except to the extent provided elsewhere in this
section, all employee petitions for benefits under this
chapter shall be barred unless the employee, or the
employee’s estate if the employee is deceased, has advised
the employer of the injury or death pursuant to s.
440.185(1) and the petition is filed within 2 years after
the date on which the employee knew or should have
known that the injury or death arose out of work
performed in the course and scope of employment.

(2) Payment of any indemnity benefit or the furnishing of
remedial treatment, care, or attendance pursuant to
either a notice of injury or a petition for benefits shall toll
the limitations period set forth above for 1 year from the
date of such payment. This tolling period does not apply
to the issues of compensability, date of maximum medical
improvement, or permanent impairment.

(3) The filing of a petition for benefits does not toll the
limitations period set forth in this section unless the
petition meets the specificity requirements set forth in s.
440.192.

7
§ 440.19(1)−(3), Fla. Stat. (1994) (emphases added).

Using the word “toll” to establish a “tolling period” departed
from the previous statute’s “except[ion]” and extension of the
limitations period. The revision reined in a previously more
claimant-friendly regime that gave claimants rolling two-year
extensions of the limitations period. Under the revised statute, the
original term would remain the base two-year limitations period
for seeking benefits but would allow for qualifying events to “toll”
the two-year period for a year.

The Legislature did not define “toll” in the revised statute. We
must do so here because our past cases have not given it proper
effect. “Toll” is a legal term with an established, ordinary meaning.
See Debaun v. State, 213 So. 3d 747, 751 (Fla. 2017) (quoting Sch.
Bd. of Palm Beach Cnty. v. Survivors Charter Sch., Inc., 3 So. 3d
1220, 1233 (Fla. 2009) (“Where, as here, the [L]egislature has not
defined the words used in a [statute], the language should be given
its plain and ordinary meaning.” (alterations in original)).
Dictionaries can supply the “best evidence” of ordinary meaning.
Conage v. United States, 346 So. 3d 594, 599 (Fla. 2022). Where
“toll” is used in the context of a statutory limitations period,
dictionaries define it as meaning “to suspend or stop temporarily
as the statute of limitations is tolled during the defendant’s
absence from the jurisdiction and during the plaintiff’s minority.”
Black’s Law Dictionary 1488 (6th ed. 1990); see also Black’s Law
Dictionary 1495 (7th ed. 1999) (defining “toll, vb. . . . 2. (Of a time
period, esp. a statutory one) to stop the running of; to abate the limitations period>”); Hankey v. Yarian, 755 So. 2d 93, 95 n.3
(Fla. 2000) (citing the Black’s Law Dictionary definition of “toll” in
a statute of limitations case); Sheffield v. Davis, 562 So. 2d 384,
386 (Fla. 2d DCA 1990) (describing the “plain and obvious”
meaning of “toll” in accordance with various contemporaneous
dictionary definitions and cases); cf. Artis v. D.C., 583 U.S. 71, 80–
81 (2018) (defining “tolling” to effect a suspension of the limitation
period’s running, a suspension that can be lifted, prompting the
period to “start[] running again when the tolling period ends,
picking up where it left off”).

8
That “toll” means “suspend,” “stop temporarily,” or “abate” in
subsection (2) can also be deduced from §440.19’s description of
tolling under subsection (5). There, if a person is

a minor, the limitations period is tolled while that person
has no guardian or other authorized representative, but
the period shall begin to run . . . in the case of a minor, if
no guardian is appointed before the minor becomes of age,
from the date the minor becomes of age.

§440.19(5), Fla. Stat. (2021) (emphases added). This subsection
works by having the tolling “suspend” the two-year limitations
period from subsection (1) and remain stopped (for years
potentially) before it “begin[s] to run” again after the stated
condition occurs—the minor becomes of age. Conversely,
subsection (5) does not toll by adding time as the E/C argues. For
example, the limitations period in subsection (5) wouldn’t be
calculated in the case of a guardian-less, fifteen-year-old claimant
by simply granting a three-year extension until the coming-of-age
date and then ending the limitations clock on the eighteenth
birthday. See § 743.07, Fla. Stat. (removing the disability of nonage
at age eighteen). Rather, subsection (1)’s two-year-limitations-
period clock is “tolled,” or suspended, by subsection (5) until the
guardian-less minor comes of age, at which time the claimant gets
two years to file a claim (until age 20). See Benton v. ICR Electric,
852 So. 2d 295, 296 (Fla. 1st DCA 2003) (holding that “[e]ven if the
petition for benefits was filed more than two years after the death
of the claimant, a minor’s claim would not be barred by the statute
of limitations . . . [because] the limitations period . . . will not begin
to run until a guardian or representative is appointed or until they
reach the age of majority”). In view of how tolling works in
subsection (5), we cannot interpret it to mean something different
in subsection (2).

Use of the dictionary definition of “toll” finds additional
support in contemporaneous, 1990’s-era Florida Supreme Court
interpretations of other statutes of limitations provisions. Just one
year before the revision to §440.19(2) took effect, the Florida
Supreme Court discussed how “extension” and “tolling” create
different effects on the running of limitations periods. In Tanner v.
Hartog, 618 So. 2d 177 (Fla. 1993), for example, the court

9
explained, albeit in dicta, that section 766.106(4), Florida Statutes,
which deals with medical malpractice actions, tolls the statute of
limitations for at least 90 days when a prospective claimant
notifies each prospective defendant of an intent to initiate
litigation. Id. at 182-83. Following the 90-day period, the new
statute of limitations deadline would be calculated based on “the
time that was remaining in the limitations period” when the 90-
day period began (unless less than 60 days remained, in which case
the deadline would be in 60 days). Id. at 183-84. The court’s
recognition of “the time that was remaining” shows that “toll” in
1994 meant to “suspend” the running of the limitations clock until
the tolling period ends.

Six years after the 1994 revisions to §440.19, the Florida
Supreme Court reiterated that the “PLAIN MEANING” of the
word “toll” in a statute-of-limitations context was “routinely and
consistently interpreted as suspending the running of the statute
of limitations time clock until the identified condition is settled.”
Hankey, 755 So. 2d at 96–97 (citing district court cases from 1991
and 1995). The Court then applied this plain meaning of “toll” to
the same medical malpractice statute discussed in Tanner:
“Because the word ‘toll’ has been consistently used by the
Legislature and interpreted by the courts to mean ‘suspend’ when
used in a statutory limitations context, we conclude that it was
intended to have the same meaning in section 766.106(4).” Id. at
97. The discussion in Hankey also makes clear that, in Florida, an
“extension” of a limitations period and a “tolling” of a limitation
period are different concepts, such that there is significance to the
Legislature’s choice between these terms in the limitations
context. The Court explained as follows:

Section 766.106(4) of the statutory scheme also provides
that if there are less than sixty days remaining to file suit
before the end date of the original two-year limitations
period at the time the claimant filed the notice of intent
to initiate litigation, then the claimant shall have sixty
days from the time when the notice of termination of
negotiations is received by him to file suit. If, however,
there were more than sixty days remaining to file suit
before the end date of the original two-year limitations
period when the claimant filed the notice, then the

10
claimant only has the time remaining in the original two-
year period to file suit. This provision provides additional
time to the limitations period separate and apart from the
ninety days of tolling, but only in the limited
circumstances set out in the statute where less than sixty
days remain to file suit at the time the claimant files the
notice of intent.

Id. (emphasis added); see also id. at 98 (agreeing that “the
‘extension’ provided for under section 766.104(2) is a genuine
extension of time to be added to the limitations period, rather than
a tolling (suspension) as provided for under section 766.106(4). . . .
Hence, this time period is to be tacked on to the end of the
limitations period and does not run simultaneously with the
separate ninety-day tolling period provided in section 766.106(4).”)
(emphases added).

We likewise conclude here that the same term “toll,” added to
§ 440.19(2) in 1994, carries the exact meaning discussed in Tanner
and Hankey. In other words, tolling operates by “interrupt[ing] the
running of the statutory limitations period, the statutory time is
not counted against the claimant during that . . . period. In
essence, the clock stops until the tolling period expires and then
begins to run again.” Hankey, 755 So. 2d at 97. The continuing
interaction of the two time-periods set forth in § 440.19(2)— “shall
toll the limitations period set forth above for 1 year”—reveals the
Legislature’s intention to fix the limitations period set forth in
subsection (1) as the base period with suspensions of its clock
triggered by qualifying tolling events.

This court’s previous decisions, on the other hand, erred by
not interpreting and applying the tolling provision in §440.19(2)
according to this plain meaning. In Orange County School Board
v. Best, 728 So. 2d 1186, 1188 (Fla. 1st DCA 1999), for instance, we
faced the issue of whether the one-year tolling period superseded
the two-year limitation period. We proceeded to conflate the
definitions of “toll” and “extend” in pronouncing that the two-year,
original statute of limitations period could not be stopped. We
decided that the limitations period could only be extended under
subsection (2) for a discrete one-year period running from the date
that benefits were provided: “A petition is timely if filed within two

11
years of the date of accident or, even thereafter, if filed within one
year of the last date the petitioner received medical treatment or
indemnity benefits.” Id. (emphasis added); see also id. at 1187 (“We
read section 440.19(1), Florida Statutes (1995), as the statute of
limitations generally applicable in workers’ compensation cases,
subject to the exceptions—which extend the limitations period in
certain circumstances—set out in the other subsections of section
440.19. . . . Subsections that follow subsection (2) can have no effect
other than to extend the two-year statute of limitations set out in
section 440.19(1), Florida Statutes (1995).” (emphasis added)). By
conflating the concepts of tolling and extending time, we concluded
that “Section 440.19(2) has no practical effect until after the two-
year period provided for in section 440.19(1) expires. As long as the
petition is timely under either section 440.19(1) or section
440.19(2), the statute of limitations is no bar.” Id. (emphases
added). Our court has repeated this interpretative error ever since.
In Philip, for example, we settled for a reference to legislative
intent and simply concluded that our construction was a “more
reasonable one.” 746 So. 2d at 1182 (reading the new term “toll” as
having “the effect of extending the limitations period”);
Medpartners/Diagnostic Clinic Med. Grp., 23 So. 3d at 204
(referring to the term “toll” as meaning “toll or extend” (emphasis
supplied)); Varitimidis, 58 So. 3d at 407–08; Sanchez, 169 So. 3d
at 1198 (treating “toll” as meaning “extend”).

Our duty, however, is to faithfully apply the plain and
ordinary meaning of the enacted text. We discharge that duty now
by interpreting the term “toll” in § 440.19(2) in accordance with its
accepted meaning to suspend or stop temporarily the limitations
period provided in subsection (1). This outcome honors the express
relationship established between the limitations period and tolling
period prescribed by subsection (2). It also brings this law into
conformity with the other limitations provisions in Florida law
that establish time-certain tolling periods, such as § 766.106(4),
discussed above (setting a ninety-day tolling period for some
medical malpractice claims), and § 624.155(3)(e) (setting a sixty-
day period for some insurance claims). Under each of these
provisions, like with § 440.19, parties must manage two important
statutory clocks that run separately: the limitations-period clock
and the tolling clock. Cf. Stimpson v. Ford Motor Co., 988 So. 2d
1119, 1121 (Fla. 5th DCA 2008) (quoting 135 Fla. Jur. 2d

12
Limitations and Laches § 87 (2008) (describing tolling of a
limitations period to be “analogous to a clock stopping and then
restarting”). And so, here, under § 440.19, after an employee
knows or should have known of a qualifying workplace injury, the
two-year limitations-period clock begins to run. But then, if an E/C
provides benefits after the injury, the limitations-period clock is
stopped while the one-year tolling clock begins running (and then
restarts after every subsequent provision of a benefit). The
limitations-period clock restarts again one year after the provision
of the last benefit. In this way, tolling in § 440.19 accords with how
tolling statutes normally work; it “suspend[s] the running of the
statute of limitations time clock until the identified condition is
settled.” Hankey, 755 So. 2d at 96.

Applying the law to the situation here, the parties agreed that
Estes received many workers’ compensation benefits for injuries
starting within two days of her workplace accident in 2021 for a
period extending through January 2023. As a result, the one-year
tolling clock promptly stopped the running of the two-year
limitations-period clock after the accident until one year after
Estes received last of these benefits—through at least January
2024. And so, when Estes filed her PFB in June 2024 (seeking a
one-time physician change and benefits for the same injuries), she
was only about six months into the running of the two-year
limitations-period clock. In other words, the date of her PFB fell
squarely within the running of the two-year limitations-period
clock, which wouldn’t have expired until January 2026 under these
facts. For this reason, we set aside the final order’s dismissal of the
petition.

In reaching this result, we respectfully acknowledge the
arguments of our dissenting colleagues on the issue of what tolling
means. They assert that we shouldn’t depart from the previous
cases and that the use of “tolling” in the 1994 revision to subsection
(2) didn’t alter the mechanics of the old extension-based regime.
They point out that our court at times even characterized the pre-
1994 extension regime as “tolling” the limitations period. And
then, citing “the well-established rule of statutory construction
that the Legislature is presumed to be cognizant of relevant
judicial decisions when enacting statutes,” they assert that
statutory construction canons require us to continue elevating our

13
incorrect interpretation of §440.19(2) over its plain and ordinary
meaning. Potter v. Potter, 317 So. 3d 255, 258 (Fla. 1st DCA 2021).

But the prior-construction canon would not apply here.
Although some of our cases referred to “tolling” under the pre-1994
limitations period regime, none of them interpreted the term itself,
or supplied a definition of “toll” for the Legislature to latch onto.
So that from our sporadic use of “tolling” in the old cases, we can
hardly ascribe an intention by the Legislature to abandon its plain
meaning and adopt an unconventional definition that our court
never adopted prior to the statutory revision. See Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 322 (2012) (explaining that the prior-construction canon
applies when the word or phrase has received “authoritative
construction” by the highest court or “uniform construction” by
inferior courts).

The dissenters’ definition of tolling also fails to account for the
Legislature’s pivot in the 1994 revision to language that crafted
limitations-period primacy in the basic two-year statute of
limitations in subsection (1). The Legislature didn’t just use the
new word “toll” in § 440.19(2) and leave the statute otherwise
intact. Rather, it abandoned a regime that previously discarded
the base two-year statute of limitations in long-term-injury/benefit
situations in favor of extending a wholly discrete series of rolling
two-year limitations periods. The revised statute went in another
direction. It called for establishing a durable two-year limitations
period to serve as the ultimate clock and basis in every case,
subject to intermittent stoppages: “Payment . . . or the furnishing
of [any benefit] . . . shall toll the limitations period set forth above
for 1 year from the date of such payment.” § 440.19(2), Fla. Stat.
(emphasis added). Under this revised § 440.19(2) regime, tolling is
always accomplished in reference to the subsection (1) limitations
period, which controls as the ultimate arbiter of time. Once the
“limitations period set forth above” has run, there is nothing left to
toll and tolling becomes unavailable. Conversely, the dissenters’
view of tolling promptly displaces “the limitations period set forth
above” two years after the workplace injury and resurrects the
legislatively replaced successive-extension model by giving a series
of rolling one-year extensions to claimants in long-term-
injury/benefit situations without regard to the limitations period

14
in subsection (1). Because the dissenters’ view abandons the
Legislature’s express intention in subsection (2) to have tolling
anchored by reference to the subsection (1) limitations period, we
must reject it.

We also aren’t convinced that the dissenters’ economic
argument proves that its interpretation is the correct one. While
we acknowledge that the Legislature’s 1994 revision stemmed
from fiscal troubles with Florida’s workers’ compensation system,
both the majority’s and dissenters’ interpretations here appear to
improve the economics of the prior system (though no record
evidence specifically addresses the economics of either approach).
The dissenters’ hypothesis and chart notwithstanding, it isn’t for
us to decide statutory interpretation questions based upon the
economics of things if the plain text of the law fails to support that
result. And so here, we must heed the Legislature’s decision to
craft a tolling provision that establishes the subsection (1)
limitations period as the master clock over the possibility that the
dissenters’ interpretation may be a less costly regime.

Finally on the tolling issue, we understand the dissenters’
stare decisis-based preference for us to stick with our previous
wrongly decided § 440.19(2) cases. But here “we have chosen to
reassess a precedent and have come to the conclusion that it is
clearly erroneous.” State v. Poole 297 So. 3d 487, 506-07 (Fla.
2020). Now, “[t]he proper question becomes whether there is a
valid reason why not to recede from that precedent.” Id. (emphasis
in original). The critical consideration here is reliance. Id. Poole
instructs that reliance interests are at their lowest in cases
“involving procedural . . . rules,” which is exactly what is at stake
with § 440.19’s statute of limitations regime. With low-stakes
reliance interests in view, we must elevate the goals of correctly
interpreting § 440.19’s limitations-period regime, which vindicates
the Legislature’s preferred parameters for this regime. We
therefore hold en banc that the tolling provision in § 440.19(2)
suspends or stops temporarily the limitations-period clock
established in subsection (1), instead of extending separate one-
year limitations periods for claimants to file claims in these cases.

B.

15
In reaching this conclusion, we likewise reject the E/C’s
alternative argument that characterizes this whole case as one big
compensability issue to which § 440.19(2)’s tolling provision
doesn’t apply. While it is true that tolling under § 440.19(2) doesn’t
apply to the issue of compensability, here, the compensability of
Estes’s original trip-and-fall injuries was settled long ago and isn’t
at issue. There has been no evidence presented—to this point at
least—that this case involves any different injury or accident to
which a separate compensability determination might apply. And
Estes needn’t re-establish the compensability of the same injuries.
See Meehan v. Orange County Data & Appraisals, 272 So. 3d 458,
461 (Fla. 1st DCA 2019) (discussing how “once a claimant has
established compensability of an injury . . . the E/C cannot
challenge the causal connection between the work accident and the
injury [but] may only question the causal connection between the
injury and the requested benefit”). We must be careful here not to
“[blur] the distinction between compensability and entitlement to
benefits.” Checkers Rest. v. Wiethoff, 925 So. 2d 348, 349–50 (Fla.
1st DCA 2006); Pinellas Cnty. Transit Auth. v. Jackson, 424 So. 3d
984, 986 (Fla. 1st DCA 2025 (specifying that “[c]ompensability
involves the work-place-related existence and cause of an injury
and not benefits-entitlement issues”).

Under the facts here, the E/C accepted compensability of
Estes’s workplace injuries immediately after the accident and then
paid for treatment and benefits for sixteen months. See
§ 440.34(3)(c), Fla. Stat. (1994) (referring to the “issue of
compensability” where “a carrier or employer denies that an
accident occurred for which compensation benefits are payable”).
In turn, the E/C conceded Estes’s injury to be “accepted as
compensable” in the pretrial stipulation in this case: it marked “X”
in “Yes” box and left the “No” box empty. It also agreed that the
following injuries or conditions are accepted as related to the
accident: “E/C/SA: Exacerbation of the Right Knee” (while the E/C
also noted, fairly enough, that it “has not accepted compensability
for those conditions deemed to be unrelated, pre-existing or
degenerative in nature and/or barred by the Statute of
Limitations”). On the average weekly wage issue the parties’
pretrial stipulation differed only as to the amount involved: Estes
claimed a base wage of $1527.30, and the E/C claimed $1112.56.
And so, the parties agreed that Estes’s PFB involved already-

16
compensable injuries, even if the parties differed about her right
to (and the amount of) specific benefits associated with these
injuries.

Of course, the JCC put to the side all the substantive issues
in this case, so we know very little about Estes’s claims. The only
issue teed up by the parties’ stipulation was the E/C’s statute of
limitations defense and how § 440.19(2)’s tolling provision applied
(both parties agreed that it applied). According to the E/C’s
stipulation:

The [E/C] established a prima facie case that the PFB is
barred by the Statute of Limitations as the date of the
accident was over two years ago on 9/30/2021; the last
medical provision provided to the Claimant was on
1/26/2023. Therefore the SOL expired on 1/26/2024. The
Claimant’s PFB was not filed until 6/13/2024.

With this stipulation the E/C conceded that the tolling provision
applied here to extend the statute of limitations to 1/26/2024, but
no further. And so, both sides agreed that the tolling provision
applied here, just for different periods based on their different
interpretations of “toll.” This is different from the dissenters’ view
of compensability that the tolling provision never applied here.

We acknowledge the dissenters’ repeated assertions that
Estes made pivotal stipulations about compensability that totally
control this case. But the record doesn’t show it. We can find no
such stipulation from Estes. Consider the PFB. Estes listed eight
claims stemming from her compensable accident and injuries. She
sought various indemnity benefits, a one-time-change of her
orthopedic physician “to evaluate and treat claimant’s work-
related injuries,” attorneys’ fees and costs, and “authorization and
determination of financial responsibility” of claimant’s knees and
right wrist (original injuries). Even if these benefit claims might
require a major contributing cause analysis to determine Estes’s
entitlement to additional benefits, they do not resurrect the long-
settled compensability issue.

We also understand that Estes’s PFB stated a ninth, single
claim for “compensability” apparently covering the already-

17
accepted knees and wrist. But the scope of this claim hasn’t been
fleshed out in the record because the JCC didn’t take evidence or
address any substantive claims. This claim was asserted against a
backdrop of the E/C accepting and providing extensive benefits for
17 months before filing a notice of denial of compensability and
unilaterally declaring that Estes “no longer needs additional
medical treatment for the work-related [2021] injury.” Of course,
an E/C cannot just reject compensability of a long-accepted
compensable injury. “Once compensability of a work accident is
established, an E/C may no longer contest that the accident is the
MCC of the injuries.” Teco Energy, Inc. v. Williams, 234 So. 3d 816,
820–21 (Fla. 1st DCA 2017). And thus, it appears that the PFB
sought to resolve the E/C’s supposed “denial” of already-accepted
injuries which wouldn’t involve making a new compensability
determination. Id. (noting under § 440.20(4) that “a carrier who
fails to deny compensability within that 120 days after the initial
provision of benefits waives the right to deny compensability”); see
also Babahmetovic v. Scan Design Fla. Inc., 176 So. 3d 1006, 1008
(Fla. 1st DCA 2015) (addressing an error that “came about by the
JCC’s conflating the existence and cause of the [work] injury—
compensability—with the existence and cause of the need for
treatment”) (emphasis in original). 3

3 Appellant’s Reply Brief outlined the dangers of accepting the

E/C’s argument and transforming ordinary MCC benefit-
entitlement issues into compensability issues in long-term injury
cases:

Were it as argued by Appellees, there would be no
reason for a carrier to provide any benefits after two years
in any case, ever; it could simply incant “compensability
denial” at, near, or after, the conclusion of two years, stop
paying benefits, and thereby close the courthouse doors
… forever. The statutory language does not strip the JCC
of authority to adjudicate claims of entitlement to
benefits that might bear some relationship to
compensability, MMI, or permanent impairment—as this
describes all benefits available under chapter 440 after
two years. Notably, the tolling provisions of section
440.19(2) will operate to extend time most frequently in
cases with permanent compensable injuries. The tolling

18
Conversely, there is no evidence at this point that Estes’s case
involves a subsequent or different injury than was already
accepted by the E/C. And so, we cannot see characterizing Estes’s
whole case as a compensability issue and dismissing it on statute
of limitations grounds. The compensability reference in one of
Estes’s claims shouldn’t have been applied to subsume Estes’s
benefit-entitlement claims, or to preclude her altogether from
receiving the benefit of § 440.19(2)’s tolling provision. This is
easiest to see with Estes’s one-time physician change claim, which
can hardly be considered a compensability issue. See
Babahmetovic, 176 So. 3d 1006 (noting that a one-time change in
physicians is awardable when a compensable injury exists
irrespective of whether a prior physician thinks that the injury is
no longer the major contributing cause of the need for future
medical care).

We likewise reject the dissenters’ imputation of an election of
remedy waiver against Estes based on the JCC’s bifurcation of the
trial. No support is cited for this proposition. And here, nothing
indicates that Estes offered a stipulation about compensability as
a condition or prerequisite for gaining a bifurcated hearing. The
bifurcation motion itself says nothing of being predicated on a
compensability determination. Nor did the JCC’s resultant order.
There is also no rule requiring a compensability issue to exist
before a JCC can bifurcate a trial. Here, ordinary efficiency
concerns seemed to motivate the decision to separate out the
statute of limitations issue for trial, which was a perfectly fine and
reasonable way to handle things. Nor did appealability of the final
order hinge upon a compensability issue. The final order was
appropriately appealed under Fla. R. App. P. 9.180(b)(1) as a final
order. It was not a non-final order appealed under (b)(1)(C)’s
“compensability” provision. All to say, Estes didn’t execute some
election of remedies waiver here.

provision cannot cannibalize itself. Nor could it strip a
JCC of jurisdiction to decide the merits of a limitations
defense (especially if predicated on a falsity).

19
Moving on, the dissenters needn’t fear that this opinion alters
what we have said in other cases about compensability and MCC
issues. We haven’t. The E/C’s acceptance of Estes’s workplace
injury did not constitute an agreement for the E/C to provide any
and all requested treatments or benefits. The E/C remains free to
assert that the accident-related injury isn’t connected with or
didn’t create the need for a specific requested benefit. See Checkers
Rest., 925 So. 2d at 349 (noting the “[o]ther issues” beyond the
injured worker’s entitlement to benefits that “remain subject to
challenge, including the extent of the compensable injury and the
causal relationship between the compensable injury and the
condition for which the worker seeks benefits”). And if the work
related injury has combined with a preexisting disease or condition
to cause or prolong disability or the need for treatment, then the
E/C must pay benefits “only to the extent that the injury arising
out of and in the course of employment is and remains more than
50 percent responsible for the injury as compared to all other
causes combined and thereafter remains the [MCC] of the
disability or need for treatment.” § 440.09(1), Fla. Stat.; Teco
Energy, 234 So. 3d at 821. Should a new compensability issue
appear, then the E/C may freely accept or deny compensability if
and when the new injury arises. Id. at 822; McIntosh v. CVS
Pharmacy, 135 So. 3d 1157, 1159 (Fla. 1st DCA 2014) (noting that
“[i]t was of no consequence that compensability [of the claimant’s
PTSD] was sought long after the date of the accident; the relevant
inquiry is whether the E/C denied compensability within 120 days
of first providing treatment for the PTSD”). Our discussion of
compensability here affects none of this.

Instead, from the limited evidence available here, we fail to
see a controlling compensability issue that forecloses the
application of § 440.19(2)’s tolling provision and requires this
entire case to be dismissed with prejudice on statute of limitations
grounds. Rather, the E/C accepted the 2021 accident, resulting in
a compensable injury with benefits provided. Estes’s 2024 PFB
sought additional benefits stemming from the same accident and
injury, which should have received the benefit of § 440.19(2)’s
tolling provision, notwithstanding that she pressed one currently
unelaborated “compensability”-related claim. That single claim
doesn’t alone control the statute of limitations question for Estes’s
other claims. If this “compensability” claim turns out to involve

20
some new injury, then the parties and the JCC can address it
under existing law.

III.

For these reasons, we will set aside the final compensation
order and remand it for further consideration consistent with this
opinion.

We acknowledge the dissenters’ dislike for “setting aside” the
final order of the JCC as opposed to “reversing” it. In this decision,
we have identified a threshold legal error in the JCC’s order—the
erroneous application of the limitations-period statute—and have
set aside the order that dismissed Estes’s petition on statute of
limitations grounds. The JCC did not touch the merits of Estes’s
petition, and we’ve disturbed nothing on the substantive front.
From here, the case will return to the administrative tribunal,
where presumably the parties and JCC will account for our
decision and proceed consistent with the JCC’s authority and
discretion under the applicable statutes and rules. Beyond setting
aside the JCC’s order for legal error, we do not presume to direct
the JCC, an administrative officer of the executive branch, how to
perform his statutory duties on remand. See Florida Fish &
Wildlife Conservation Comm’n v. Daws, 256 So. 3d 907, 917 (Fla.
1st DCA 2018) (“The judiciary violates the doctrine of separation
of powers if it directs an administrative agency to perform its
duties in a particular manner.”).

We’ve discussed before the broader issue of why we “set aside”
workers’ compensation orders instead of reversing them. We do so
in deference to separation-of-powers principles and the statutes
under which we review the orders of JCCs and similarly situated
administrative hearing officers. See Hernandez v. Fla. Dep’t of
Management Servs., 355 So. 3d 465, 473 (Fla. 1st DCA 2022)
(describing that “[i]n an administrative appeal, we have the
authority, among other things, to “set aside agency action,” to
“decide the rights, privileges, obligations, requirements, or
procedures at issue between the parties,” and to order “such
ancillary relief as the court finds necessary to redress the effects of
official action wrongfully taken or withheld”) (quoting
§ 120.68(6)(a), Fla. Stat.); Ortiz v. Winn-Dixie, Inc., 402 So. 3d 301,

21
311 n.7 (Fla. 1st DCA 2024) (explaining the rationale for setting
aside the orders of JCCs). Because the Office of the Judges of
Compensation Claims lies within the executive branch, its final
orders are matters of administrative law. See § 440.45(1)(1), Fla.
Stat. (“There is created the Office of the Judges of Compensation
Claims within the Department of Management Services.”). Under
Chapter 440, a JCC may take evidence and adjudicate these cases
consistent with statutory duties and issue orders that are effective
within the executive branch. But this authority goes only so far as
necessary to determine a claim under chapter 440. Stated
differently, a JCC, as authorized by the Legislature, can
conclusively adjudicate disputed facts involving the benefits that
turn on those facts, but cannot issue judgments the same as an
Article V court. Cf. Gordon v. Gordon, 59 So. 2d 40, 43 (Fla. 1952)
(“[W]hen a final decree or judgment of a court of competent
jurisdiction becomes absolute it puts at rest and entombs in
eternal quiescence every justiciable, as well as every actually
adjudicated, issue.”). Indeed, to enforce an order of a JCC, a
claimant must seek relief from an Article V court. See § 440.24(1),
Fla. Stat. (granting jurisdiction to circuit courts to issue a rule nisi
to enforce the terms of a final compensation order); Metro. Dade
Cnty. v. Rolle, 661 So. 2d 124, 127 (Fla. 1st DCA 1995) (“It is settled
that a judge of compensation claims has no jurisdiction even to
enforce [a] prior compensation order since the sole remedy for
enforcement is by the procedure outlined in subsection 440.24(1),
Florida Statutes.”) (citations omitted); see also Staffing Concepts
Intern., Inc. v. Paul, 704 So. 2d 691, 692 (Fla. 3d DCA 1997) (“[A]
circuit court’s inquiry in a rule nisi proceeding is confined to
whether there is a valid workers’ compensation order in effect and
whether there was a default of that order.”).

The Legislature has authorized this court to hear “appeals”
from OJCC orders. See § 440.271, Fla. Stat. With cases from
administrative tribunals, different from our authority to review
judgments and other final orders of trial courts from within our
own branch of government, our authority to review orders are a
function of statute—termed “judicial review” of administrative
action. See Art. V, § 4(b)(2), Fla. Const. There is no legislative
guidance or statutory parameters for reviewing the administrative
orders rendered under chapter 440. But our authority in this
administrative context closely resembles what occurs in our review

22
of orders under the Administrative Procedure Act (“APA”), where
the Legislature has set forth various authorized remedies. See
§ 120.68(7), (8), (10), Fla. Stat. (setting forth the court’s authority
to “affirm,” “set aside,” “remand,” and “modify” as authorized
remedies). We glean from this sister statute our authority to “set
aside” administrative action when it “has erroneously interpreted
a provision of law and a correct interpretation compels a particular
action,” or when the “agency’s exercise of discretion was . . .
[o]utside the range of discretion delegated to the agency by law” or
“[o]therwise in violation of a constitutional or statutory provision.”
§ 120.68(7)(d), (e), Fla. Stat. Based on this legislative authorization
to review the JCC’s order and in recognition of Florida’s strict
separation of powers, we set aside the order and go no further by
directing the OJCC on how to exercise their statutory duties on
remand.

SET ASIDE and REMANDED for further consideration consistent
with this opinion.

LEWIS, ROBERTS, ROWE, RAY, WINOKUR, NORDBY, LONG, and
TREADWELL, JJ., concur.

BILBREY, J., dissents with an opinion in which M.K. THOMAS, J.,
joins.

M.K. THOMAS, J., dissents with an opinion in which BILBREY, J.,
joins.

KELSEY, J., recused.

NEFF, J., did not participate.

---

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.

---

23
BILBREY, J., dissenting.

I join Judge Thomas’ opinion in full. Because the tolling
period does not apply to issues of compensability, we should not be
considering tolling under section 440.19(2), Florida Statutes.
Nonetheless, the en banc majority recedes from our precedent
interpreting that subsection. 1 Because the majority unnecessarily
recedes from our easy-to-apply precedent, installs a regime that
will be difficult if not impossible to apply in workers’ compensation
cases, and potentially eliminates the statute of limitations in many
cases, I respectfully dissent.

The issue in dispute is the application of section 440.19,
Florida Statutes, to the facts here. As the majority opinion points
out, that section was substantially amended in 1993, effective
January 1, 1994, and has not been amended since gender-neutral
language was added in 1997. See Ch. 93-415, §§ 23, 112, Laws of
Fla.; ch. 97-103, § 113, Laws of Fla. The subsections at issue read:

(1) Except to the extent provided elsewhere in this
section, all employee petitions for benefits under this
chapter shall be barred unless the employee, or the
employee’s estate if the employee is deceased, has advised
the employer of the injury or death pursuant to
s. 440.185(1) and the petition is filed within 2 years after
the date on which the employee knew or should have
known that the injury or death arose out of work
performed in the course and scope of employment.

1 While I respectfully disagree with the majority’s decision to

recede from our precedent, I do appreciate the majority opinion
acknowledging the precedent and addressing it directly. En banc
consideration “is designed to help the district courts avoid conflict,
assure harmonious decisions within the courts’ geographic
boundaries, and develop predictability of the law within their
jurisdiction. Consistency of decisions within each district is
essential to the credibility of the district courts.” Chase Fed. Sav.
& Loan Ass’n v. Schreiber, 479 So. 2d 90, 93 (Fla. 1985).

24
(2) Payment of any indemnity benefit or the
furnishing of remedial treatment, care, or attendance
pursuant to either a notice of injury or a petition for
benefits shall toll the limitations period set forth above
for 1 year from the date of such payment. This tolling
period does not apply to the issues of compensability, date
of maximum medical improvement, or permanent
impairment.

Before section 440.19 was amended, the word “toll” was not
present in the statute. Section 440.19(1)(a), Florida Statutes
(1993), provided a two-year limitation period except “a claim may
be filed within 2 years after the date of the last payment of
compensation or after the date of the last remedial treatment
furnished by the employer.” Our cases called this extension “toll”
and used that word to mean “extend,” rather than “suspend.” See,
e.g., Sol Dale Bldgs., Inc. v. Schweickert, 656 So. 2d 606, 609 (Fla.
1st DCA 1995) (“[I]t is the furnishing of the treatment, not the
billing or reporting, that tolls the statute.”); Taylor v. Metro. Dade
Cnty., 596 So. 2d 798 (Fla. 1st DCA 1992) (reversing for further
proceedings to determine whether the use of a medical device
provided “a basis for tolling the statute”); Seamco Laboratories,
Inc. v. Pearson, 424 So. 2d 898, 899 (Fla. 1st DCA 1982)
(“[T]reatment by an authorized physician within the two-year
period was sufficient to toll the running of the statute.”).

The majority holds that the amendment to section 440.19(2)
adding the word toll changed the meaning of the word from how
we had used it in previous cases. This is inconsistent with “the
well-established rule of statutory construction that the Legislature
is presumed to be cognizant of relevant judicial decisions when
enacting statutes. In fact, the Legislature will be presumed to
adopt those relevant prior judicial decisions unless the contrary is
expressed.” Potter v. Potter, 317 So. 3d 255, 258 (Fla. 1st DCA
2021). In adding the word toll, the Legislature was not altering
our application of the extension period that was previously
present. Rather, the Legislature was codifying our previous
holdings.

Following the 1993 amendment to section 440.19(2), we have
repeatedly read the tolling provision to mean extend rather than

25
suspend. See Sanchez v. Am. Airlines, 169 So. 3d 1197, 1197 (Fla.
1st DCA 2015) (“[S]ubsection (2) provides that the only events that
will extend the statute of limitations are the payment of indemnity
benefits or the furnishing of medical treatment.”); Varitimidis v.
Walgreen Co./Sedgwick Claims Mgmt. Services, Inc., 58 So. 3d
406, 407–08 (Fla. 1st DCA 2011); Medpartners/Diagnostic Clinic
Med. Grp. v. Zenith Ins. Co., 23 So. 3d 202, 204, 206 (Fla. 1st DCA
2009); Claims Mgmt., Inc. v. Philip, 746 So. 2d 1180, 1181 (Fla. 1st
DCA 1999); Orange Cnty. Sch. Bd. v. Best, 728 So. 2d 1186, 1188
(Fla. 1st DCA 1999). Although not discussed in any of those cases,
tolling in a workers’ compensation case applies many more times
than other instances of tolling. This is because there are usually
many times in a typical workers’ compensation case when
payments are made or treatment is supplied to a claimant.

We have also called an extension of time tolling in a different
context. In Syfrett v. Syfrett-Moore ex rel. Estate of Syfrett, 115
So. 3d 1127, 1131 (Fla. 1st DCA 2013), we discussed rule
1.140(a)(3), Florida Rules of Civil Procedure. That rule applies
when a defendant files certain motions directed to the complaint.
The rule extends the time for a defendant to serve a responsive
pleading until “10 days after the filing of the court’s order” denying
or postponing disposition of the motion. Id. In discussing the
impact of this rule we stated, “Thus, because Appellant had not yet
answered the complaint due to the tolling by her motion to
dismiss, Appellee had to establish that there was no answer that
Appellant could serve and no affirmative defense that she could
allege which would raise an issue of material fact.” Syfrett, 115
So. 3d at 1131 (emphasis added). We further stated, “This tolling
is important because the summary judgment standard changes
under these circumstances.” Id. (emphasis added).

The majority opinion has tolling suspend the running of the
two-year limitation period but only based on the last payment to a
claimant. With respect, even if toll is read to mean suspend, the
whole of section 440.19(2) must still be applied. “All parts of the
statute must be given effect, and the Court should avoid a reading
of the statute that renders any part meaningless. . . . Moreover, ‘all
parts of a statute must be read together in order to achieve a
consistent whole.’” Searcy, Denney, Scarola, Barnhart & Shipley,
etc. v. State, 209 So. 3d 1181, 1189 (Fla. 2017) (citation omitted).

26
“Payment of any indemnity benefit or the furnishing of remedial
treatment, care, or attendance pursuant to either a notice of injury
or a petition for benefits shall toll the limitations period set forth
above for 1 year from the date of such payment.” § 440.19(2),
Fla. Stat. (emphasis added). So each time a claimant receives an
indemnity benefit or is furnished treatment, another year should
be added from the date of such payment to the tolling timer that
the majority opinion creates. This would effectively eliminate the
statute of limitations in most workers’ compensation cases.

The provisions of section 440.19 at issue were amended in a
special session called November 1993. In adopting the substantial
amendments to chapter 440 contained in Laws of Florida 93-415,
the Legislature made numerous findings. Among the findings by
the Legislature were “that there is financial crisis in the workers’
compensation industry” and that “the magnitude of these
compelling economic problems demands immediate, dramatic, and
comprehensive legislative action.” Id. If toll means suspend, as
the majority decides, then per section 440.19(2) every “[p]ayment
of any indemnity benefit or the furnishing of remedial treatment”
suspends the limitation period for one year. In most cases the
limitations periods may be extended for a great many years. It
would be odd if in the midst of a crisis in the workers’ compensation
industry, the Legislature intended to greatly extend the statute of
limitations for claims.

To properly calculate suspension of time under the majority
opinion’s new system will require keeping track of multiple timers.
See Ortiz v. Winn-Dixie, Inc., 361 So. 3d 889, 893 (Fla. 1st DCA
2023), opinion superseded on reh’g, 402 So. 3d 301 (Fla. 1st DCA
2024). This will be burdensome for the parties and judges.
Consider a simplified application of the multiple timer system to
the facts here:

Event Date Multiple timer Previous
suspension extension
method method
Industrial 9/30/2021 Start of two-year Start of SOL.
Accident: statute of § 440.19(1)
limitations (SOL)
clock. § 440.19(1)

27
First 10/2/2021 Applying tolling
treatment: in § 440.19(2)
suspends the
limitation period
one year. Only
three days have
run on SOL two-
year clock.
10/1/2022 Suspension
period that
started 10/2/2021
ends. Two-year
SOL clock starts
running again.
Last 1/13/2023 Applying tolling
indemnity in § 440.19(2)
benefit: suspends
limitation period
one year. 107
total days have
run on SOL
clock.
§ 440.19(1).
Last provision 1/26/2023 SOL suspended
of treatment since 1/13/2023.
Another year
suspension added
by tolling under
§ 440.19(2). So
SOL currently
suspended for
one year and 352
days.
9/30/2023 Ends the two-
year
limitation
period in
§ 440.19(1).
SOL has run
but is tolled

28
meaning
extended.
1/26/2024 Ends one-year
extension
from last
provision of
treatment on
1/26/2023
provided by
§ 440.19(2).
Tolling has
expired.
First petition 6/13/2024 Timely. Time barred.
for benefits

1/12/2025 Three suspension
periods from
payment of
indemnity
benefit and
provision of
treatments end.
SOL clock
resumes running.
Will end
9/27/2026 if no
further
suspensions.

Using the multiple timer suspension method, the limitation
period for Estes is more than two and a half years longer than
using the extension method that we have used for over 25 years
per Philip, 746 So. 2d at 1181–82, and Best, 728 So. 2d at 1188.
But the calculations in the above chart are an oversimplification
since each “indemnity benefit or the furnishing of remedial
treatment, care, or attendance” would add another year of
suspension to the limitation period under the majority opinion’s
multiple clock method. The record shows that the E/C provided
payments for treatment well over 150 times for Estes. Reading toll
as suspend and applying all of section 440.19(2) would in effect

29
eliminate the application of the statute of limitations here by
providing over 150 separate one-year suspensions of the timer.

But even if only one suspension period applies, the majority
opinion’s multiple timer method will be difficult to apply. The
approach that the majority adopts was first proposed not by any
party, but by then Judge Tanenbaum in Ortiz v. Winn-Dixie, Inc.
361 So. 3d at 893–94, opinion superseded on reh’g, 402 So. 3d at
302. 2 He explained the scheme as follows:

Imagine a two-year master countdown timer starting to
run on the date of the accidental injury, as we just
described. Once the employee files a petition (like Ortiz
presumably did in 2003), that two-year timer is stopped
with respect to the claim or claims raised therein as they
await administrative disposition. Consider that
stoppage, though, as if it were a split time—stoppage only
with respect to that original PFB. The master timer
nevertheless continues counting down with respect to any
later claim arising out of the same accident. The master
timer then stops counting down each time the employer
furnishes a benefit pursuant to the original PFB. When
that happens, a separate tolling timer starts counting
down instead. If, while the tolling timer is running, the
employer furnishes another benefit (either an indemnity
payment or some care or treatment), the timer resets to
one year and starts counting down again.

By the very nature of tolling (defined above in the
margin), the limitation timer and the tolling timer run in
opposition to each other: They cannot both run at the
same time. That means as the tolling timer is running,
the limitation timer is stopped with whatever time was

2 An appellate court may “take judicial notice of their own
records.” Hillsborough Cnty. Bd. of Cnty. Comm’rs v. Pub. Emp.
Rel. Comm’n, 424 So. 2d 132, 134 (Fla. 1st DCA 1982). The
claimant in Ortiz did not argue that toll in section 440.19(2) meant
suspend or that our line of cases from Best and Philip interpreting
section 440.19(2) should be overruled.

30
remaining when the tolling timer started. When the one-
year tolling timer reaches zero and has not been reset by
the employer’s furnishing of another benefit, the master
two-year limitation timer starts counting down again
from where it left off. Until a point is reached where both
timers reach or remain at zero together (that is, time has
run out on both timers simultaneously), the one-year
timer can continue to be reset and run for as long as the
employee continues under an award of benefits.

Ortiz, 361 So. 3d at 893.

Ortiz moved for rehearing. The E/C in Ortiz, which had
prevailed in the initial opinion, also argued that rehearing should
be granted, stating in part:

The undersigned attorney, a board-certified workers’
compensation expert with thirty-three years of
experience, cannot apply what has been written by the
Court. For the first time, the Court has created the
master timer, the tolling timer, and the limitation timer,
each of which may oppose or defeat the other and that are
subject to being reset. This new paradigm, which
requires a exceedingly complex factual and legal analysis,
is inconsistent with the Legislature’s express intent that
the workers’ compensation system be “efficient and self-
executing.” Section 440.015, Fla. Stat. The law is
intended to be applied in a manner “which facilitates the
self-execution of the system and the process of insuring
(sic) a prompt and cost-effective delivery of payments.”
Id.

The court in Ortiz then withdrew its opinion and issued a new
opinion on rehearing in which the majority there did not adopt the
multiple timer system. 402 So. 3d at 302–11. A special
concurrence continued to argue for its adoption. Ortiz, 402 So. 3d
at 312 (Tanenbaum, J., specially concurring). Today the majority
opinion adopts this multiple timer system despite the criticism
from even the party that initially prevailed using that system in
Ortiz.

31
It would be much simpler for the participants in the workers’
compensation system if we continued to use the extension method
that has been in effect for over 25 years. The last date that the
E/C supplied a benefit to a claimant is easy to find, making the
limitation period in section 440.19(1) and tolling in section
440.19(2) easy to apply using our established extension method.
See Best, 728 So. 2d at 1188 (“A petition is timely if filed within
two years of the date of accident or, even thereafter, if filed within
one year of the last date the petitioner received medical treatment
or indemnity benefits.”).

Finally, a word on stare decisis. Even if the more common use
of the word toll means suspend, we should apply stare decisis to
keep the definition of toll in section 440.19(2) as meaning extend.
“[C]onsiderations of stare decisis weigh heavily in the area of
statutory construction” since the legislative branch can alter a
court’s “interpretation of its legislation.” Illinois Brick Co. v.
Illinois, 431 U.S. 720, 736 (1977) (citations omitted). The
Legislature has had decades to amend section 440.19(2) to change
our holdings in Best and Philip if it wished but has not done so.

I recognize that following the decision in State v. Poole, 297
So. 3d 487 (Fla. 2020), the doctrine of stare decisis has lost some of
its force under Florida law. “But once we have chosen to reassess
a precedent and have come to the conclusion that it is clearly
erroneous, the proper question becomes whether there is a valid
reason why not to recede from that precedent.” Id. at 507. The
Supreme Court in Poole answered its question by stating, “The
critical consideration ordinarily will be reliance. It is generally
accepted that reliance interests are ‘at their acme in cases
involving property and contract rights.’” Id. (citing Payne v.
Tennessee, 501 U.S. 808, 828 (1991)).

If toll in section 440.19(2) means suspend, and if suspension
applies each time an E/C provides “any indemnity benefit or the
furnishing of remedial treatment, care, or attendance,” then many
limitations periods will be revived in cases where an E/C thought
they had run long ago. “Once the defense of the statute of
limitations has accrued, it is protected as a property interest just
as the plaintiff’s right to commence an action is a valid and

32
protected property interest.” 3 Wiley v. Roof, 641 So. 2d 66, 68 (Fla.
1994). As a protected property right, reliance interests are at their
highest, as the Florida Supreme Court noted in Poole. 297 So. 3d
at 507. So stare decisis should apply to maintain that reliance
interest.

In conclusion, we should not be considering the tolling
provisions in section 440.19(2) because this case concerns
compensability. But even if we are going to apply tolling here, for
the above reasons we should not recede from our precedent
defining it as extend. I respectfully dissent from the majority’s
decision to do so.

M.K. THOMAS, J., dissenting.

I respectfully dissent from the majority opinion that the PFB
is not barred by the statute of limitations (SOL) set forth in section
440.19, Florida Statutes (2021). On this record, we are compelled
to affirm.

Estes stipulated below that the PFB raised an “issue of
compensability,” without limiting or qualifying language. This
unbounded stipulation disqualified her from taking advantage of
the tolling provision of section 440.19(2), Florida Statutes (2021).
Her own stipulation means she cannot argue the opposite now—
that the PFB did not raise compensability—so as to benefit from
the tolling provision of 440.19(2). But even if Estes is not bound by
her stipulation and the tolling provision is properly before us, the
majority opinion 1) misconstrues “compensability” contrary to
precedent of this Court and fails to recognize the critical
distinction between the SOL as a bar to filing PFBs versus
compensability as a substantive legal determination; and 2)
erroneously redefines “toll” in section 440.19(2), negatively
impacting the self-executing nature of the workers’ compensation
system. Contrary to the majority’s recognition that in 1994 the
Legislature “took a stricter tolling approach,” “tightened the

3 I therefore respectfully disagree with the majority opinion

that application of the statute of limitations is merely a procedural
issue not implicating reliance interests.

33
statute of limitations provision,” and “reined in a previously more
claimant-friendly regime,” its redefinition of “toll” does the
opposite. The new “toll” effectively dissolves the SOL—expanding
the PFB filing window and setting forth an over-engineered
method of calculation.

Stipulation—PFB Raises An “Issue of Compensability”

The Employer/Carrier (E/C) accepted Estes’s 2021 work
accident as compensable and provided indemnity and medical
benefits. But two years later, the E/C denied her request for
benefits related to right knee complaints. As a result, Estes filed a
PFB specifically raising the issue of “compensability of her left
knee, right knee, and right wrist injuries,” among a litany of other
claims. The E/C defended by asserting the PFB was barred by the
SOL.

Here is the relevant timeline:

9/30/2021 Date of accident; E/C accepted the accident as
compensable and provided benefits for left knee, left
wrist, and right knee injuries.

1/26/2023 Estes’s last receipt of workers’ compensation benefits.

2/08/2023 E/C filed a formal Notice of Denial asserting the work
accident was no longer the major contributing cause
(MCC) of the right knee condition and no further
benefits or treatment would be provided.

6/13/2024 Estes filed a PFB requesting indemnity and medical
benefits from the date of accident forward, specifically
raising “compensability of claimant’s left knee, right
knee and right wrist injuries”; financial responsibility
of further medical care; authorization of doctors to
treat the injuries, to include the denied right knee
injury and indemnity benefits; and other claims.

6/17/2024 E/C filed Response to PFB, raising SOL defense as a
bar to Estes’s claims.

34
10/2/2024 Estes moved to bifurcate the merits hearing, certifying
that the PFB asserted an issue of compensability.

10/2/2024 JCC issued an Order Granting Claimant’s Agreed
Motion to Bifurcate Issues for Merit Hearing, stating
that “Should the claim be determined compensable, I
find that the determination of the exact nature and the
amount of the benefits due to [Estes] will require
substantial expense and time for all parties. Florida
Rule of Appellate Procedure 9.180(b)(1)(C). . . . The
12/10/24 Final Merit Hearing will only address the
Employer/Servicing Agent’s defenses that [Estes’s]
claims are barred by the Statute of Limitations. . . .
Jurisdiction is reserved on the remaining issues
claimed in the petition for benefits filed on 6/13/24 for
a Final Merit Hearing at a later date, if required.”

10/14/2024 Uniform Pre-Trial Stipulation filed, documenting that
the compensability issue was raised. E/C denied
compensability of the right knee condition on the
grounds that the exacerbation period of pre-existing
condition had ended, the accident was no longer the
MCC of the need for treatment, and the SOL barred
all further benefits for all injuries claimed.

12/26/2024 In the “Bifurcated Final Order,” the JCC granted the
E/C’s defense that Estes’s claims were barred by the
SOL, denied her claims for attorney’s fees, and noted
“[Estes’s] 6/13/24 Petition for Benefits is hereby
dismissed with prejudice.” (Emphasis added.)

1/3/2025 Estes moved for rehearing, asserting for the first time
that the JCC should not have used against her on the
merits her stipulation that the PFB asserted an issue
of compensability in support of her request for a
bifurcated hearing. The JCC denied the motion.

1/13/2025: Estes filed her Notice of Appeal, attaching the
“Bifurcated Final Order.”

35
Estes’s choice to bifurcate her claims is a legitimate
procedural option that splits the merits hearing into two phases.
At the initial merits hearing (phase I), only the issue of
compensability is litigated, and the JCC reserves jurisdiction over
all remaining claims for specific benefits. If the JCC determines
the issue of compensability in favor of the claimant in phase I, the
reserved claims are litigated at a phase II hearing. 1

Electing a bifurcated litigation process is voluntary. It
determines compensability sooner, which dictates whether it is
then necessary to determine entitlement to specific benefits. The
split process is attractive because it can avoid costly depositions
and other discovery required to parse out entitlement to the
benefits reserved for phase II.

As a prerequisite for using the bifurcated hearing option, the
party (here Estes) must stipulate that the PFB raises an “issue of
compensability.” Additionally, a party may appeal the phase I
compensability order “provided that the order expressly finds an
injury occurred within the scope and course of employment and
that claimant is entitled to receive causally related benefits in
some amount, and provided further that the lower tribunal
certifies in the order that determination of the exact nature and
amount of benefits due to claimant will require substantial
expense and time.” Fla. R. App. P. 9.180(b)(1)(C) 2; see also

1 In 2003, the 60Q rules (Chapter 60Q-6, Florida
Administrative Code) replaced the old Florida Rules of Workers’
Compensation Procedure. This change resulted from amendment
to section 440.45, Florida Statutes, shifting rule-making authority
in workers’ compensation from the Florida Supreme Court to the
Division of Administrative Hearings (DOAH). Bifurcated hearings
are available pursuant to the case-management authority granted
to Judges of Compensation Claims (JCC) under Florida
Administrative Code Rule 60Q-6.113 and section 440.25(4)(d),
Florida Statutes.
2 Rule 9.180(b)(1)(C) permits an appeal of a phase I bifurcated

hearing order if the JCC finds an accident occurred within the
course and scope of employment, benefits are due of some nature,
and that determination of those benefits will require substantial

36
Jacksonville Sheriff’s Off./City of Jacksonville Risk Mgmt. v.
Smith, 66 So. 3d 410, 410 (Fla. 1st DCA 2011) (dismissing the
appeal of a nonfinal order rendered in phase I of a bifurcated
merits hearing for lack of jurisdiction because it did not dispose of
all matters presented to the JCC for adjudication and did not
include the certification required under rule 9.180(b)(1)(C)); Sun
Sentinel & Tribune Co. v. Petrovich, 744 So. 2d 1056, 1056 (Fla. 1st
DCA 1999); Cadco Builders, Inc. v. Roberts, 712 So. 2d 457, 458
(Fla. 1st DCA 1998); Nape v. Mark V Const., 696 So. 2d 1233,
1234–35 (Fla. 1st DCA 1997).

The JCC determined that the PFB was barred by the SOL.
Accordingly, he dismissed the PFB with prejudice, including the
claims reserved for phase II. Thus, the order was final and
appealable under rule 9.180(b)(1). If in a bifurcated process, the
phase I order determines compensability in favor of the claimant,
and the PFB remains viable with specific benefits reserved for
phase II, an E/C may appeal such an interlocutory order under rule
9.180(b)(1)(A), (B), or (C).

However, because the majority opinion redefines an “issue of
compensability” as only compensability of the accident itself, this
bifurcated hearing process will no longer be available for litigation
of SOL defenses, among others. Regardless of the subsection of rule
9.180 supporting the appeal, it remains true that it resulted from
a bifurcated process based on Estes’s stipulation that the PFB
raised an issue of compensability. Florida courts have consistently
recognized the general rule that “[a] stipulation properly entered
into and relating to a matter upon which it is appropriate to
stipulate is binding upon the parties and upon the Court.” Turner
v. Miami-Dade Cnty. Sch. Bd., 941 So. 2d 508, 509 (Fla. 1st DCA
2006) (quoting Gunn Plumbing, Inc. v. Dania Bank, 252 So. 2d 1,

expense and time. Accordingly, orders from a phase I hearing that
do not find compensability would not be appealable, nonfinal
orders under this subsection. Rather, an order denying
compensability would automatically convert the phase I order into
a final, appealable order under rule 9.180(b)(1).

37
4 (Fla. 1971)). This Court in Myrick v. Gillard Grove Service, 577
So. 2d 655, 656 (Fla. 1st DCA 1991), specifically held that when a
party stipulates to an issue like compensability, it “waive[s] the
right to make compensability an issue.” We reemphasized this rule
in Turner, 941 So. 2d 508. In Turner, accepting compensability
“relieved claimant of any obligation to establish compensability”
and “precluded the employer and servicing agent from attempting
to establish the contrary until and unless that stipulation was set
aside.” Id. at 509.

The binding effect of stipulations extends through appeal, and
parties cannot raise issues on appeal that were resolved or set by
stipulation below. See Burnsed v. State, 743 So. 2d 139, 139–40
(Fla. 2d DCA 1999) (“Where appropriately made, stipulations are
binding not only upon the parties but also upon the trial and
appellate courts.”). As we have declared, parties cannot escape
stipulations through “mere change of litigation strategy” and “it is
never a court’s function to rewrite the terms of an agreement to
make it more reasonable.” Marin v. Aaron’s Rent to Own, 53 So. 3d
1048, 1050 (Fla. 1st DCA 2010) (citing Churchville v. GACS Inc.,
973 So. 2d 1212, 1216 (Fla. 1st DCA 2008)).

Estes should be bound by her stipulation below and precluded
from application—and therefore analysis—of the tolling provision
of section 440.19(2). The binding nature of such characterizations
prevents parties from manipulating procedural rules by taking
inconsistent positions based on strategic advantage. See Sullivan
v. NUC02, LLC/Broadspire, 308 So. 3d 659, 664 (Fla. 1st DCA
2020) (stating that parties are bound by stipulations even if later
evidence would support a different position); Wren v. DMS, Inc.,
821 So. 2d 458, 458–59 (Fla. 1st DCA 2002) (holding the JCC erred
when it addressed the issue of compensability when the parties
had already resolved the question).

This principle is bolstered by the doctrine of election of
remedies, which concerns the choice between two or more co-
existent and inconsistent remedies that arise out of the same set
of facts. Once elected, the remedy bars a later inconsistent
position. Although the doctrine of election of remedies is a
substantive legal doctrine, the election occurs at a procedural
juncture if it reflects a true election between inconsistent

38
substantive remedies. See Liddle v. A.F. Dozer, Inc., 777 So. 2d
421, 421–22 (Fla. 4th DCA 2000) (involving an election of remedies
at a procedural juncture of the trial); Morales v. Zenith Ins. Co.,
152 So. 3d 557, 564 (Fla. 2014) (noting that settlement of the
workers’ compensation case is an election of remedies); see also
§ 631.929, Fla. Stat. (instructing that if workers’ compensation
accident occurred before 1994 and the employer’s insurance is
insolvent, claimant may elect to pursue benefits from the Workers’
Compensation Guaranty Association and forego seeking them
from the employer or insolvent fund); § 440.11(2), Fla. Stat. (under
the statute, when employer has no coverage, the claimant may
choose between civil personal injury action or benefits under
Chapter 440). The choice of a bifurcated hearing process in
workers’ compensation requires a stipulation that closes avenues
of relief. Estes asserted a blanket stipulation that the PFB raised
an “issue of compensability” with no limitation of any kind. The
stipulation should foreclose her ability to argue the opposite on
appeal.

Contrary to our own precedent, the majority improperly
allows Estes to escape her stipulation and raise new arguments on
appeal that were not preserved below. Preservation is
fundamental. “In order to be preserved for further review by a
higher court, an issue must be presented to the lower court and the
specific legal argument or ground to be argued on appeal or review
must be part of that presentation if it is to be considered
preserved.” Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985). We
strictly enforce the rules of preservation. See Rosier v. State, 276
So. 3d 403, 406–07 (Fla. 1st DCA 2019) (emphasizing the necessity
that parties preserve specific issues and arguments as a
prerequisite to appellate review). We consistently make it clear
that counsel must preserve any issue bearing on disposition, or it
is waived. See, e.g., Heart of Live Oak, Inc. v. State of Fla., Off. of
Fin. Regul., 196 So. 3d 1290, 1290–91 (Fla. 1st DCA 2016) (noting
it is well-established that an issue must be raised in the
appropriate administrative proceeding to be preserved for appeal).

In the order denying Estes’s motion for rehearing, the JCC
ruled that rehearing was too late for Estes to retreat from her
stipulation and assert an entirely new legal theory after not
prevailing at the merits hearing. The JCC’s ruling is reviewed only

39
for abuse of discretion. See E. Airlines v. Griffin, 654 So. 2d 1194,
1195 (Fla. 1st DCA 1995); 2K S. Beach Hotel, LLC v. Mustelier, 291
So. 3d 158, 160 (Fla. 1st DCA 2020). The JCC did not abuse his
discretion in holding Estes to her stipulations below. Estes did not
address the abuse of discretion review on appeal. Because Estes
stipulated below that the PFB raises an issue of compensability,
she should be precluded from arguing to the contrary on appeal.
Accordingly, we should affirm the JCC’s order finding the PFB is
barred by section 440.19(1).

“Issue of Compensability”

The majority does not bind Estes to her stipulation below, so
we move now to the interpretation of the tolling provision itself.
The provision specifically excludes three issues from its
application: “compensability, date of maximum medical
improvement, or permanent impairment.” § 440.19(2), Fla. Stat.
Of the three exclusions, two are relevant here: compensability and
permanent impairment. The majority concludes that the PFB does
not raise an issue of compensability, and the tolling provision
applies to the SOL analysis here because “the compensability of
Estes’s workplace injury was settled long ago and isn’t at issue.”
Quoting Checkers Restaurant v. Wiethoff, 925 So. 2d 348, 349–50
(Fla. 1st DCA 2006), the majority cautions that “[w]e must be
careful not to ‘[blur] the distinction between compensability and
entitlement to benefits.’” But the majority’s reasoning
misconstrues the distinction and confuses the concept of
compensability generally with compensability in the context of a
procedural time bar.

Initially, the tolling provision of the SOL does not apply to
issues of compensability. See § 440.19(2), Fla. Stat. The SOL is a
procedural concept establishing a window of time within which a
PFB must be filed. Compensability, by contrast, is a substantive
legal determination as to whether an injury is covered under
chapter 440, Florida Statutes. The SOL does not determine
compensability; it only sets a time limit for the filing of a PFB. If a
PFB is timely filed, the E/C may still dispute compensability, even
years after the accident (if the procedural posture allows). Because
compensability is a substantive defense, it is not extinguished by
a time limit alone once a valid claim is pending.

40
Likewise, even if an E/C provides medical or indemnity
benefits for more than two years, such payment does not
automatically establish compensability. “Causation, in workers'
compensation, is established by MCC, and MCC is a concept that
can apply at two different stages of a determination of entitlement
to benefits: work must be the MCC of a compensable injury, and
also—where (as here) there is a preexisting condition to the right
knee—the compensable injury must be the MCC of the need for
treatment.” See Babahmetovic v. Scan Design Fla. Inc., 176 So. 3d
1006, 1008 (Fla. 1st DCA 2015).

Until now, this Court declared that compensability
encompasses more than whether an accident occurred within the
course and scope of employment. We recently acknowledged in
another SOL case that the term “compensability” also includes
injuries or conditions arising post-accident. See Ortiz v. Winn-
Dixie, Inc., 402 So. 3d 301, 308 (Fla. 1st DCA 2024) (“There are few
facts we cannot overlook. First, the carrier long ago accepted
compensability of Ortiz’s kidney injury, even stipulating to that
compensability in this case.” (emphasis added)). In Ortiz, the
accident itself had long ago been accepted as compensable. The
issue later before the JCC was compensability of an ongoing
kidney condition. Id. at 302–03.

This Court has also consistently recognized a broader
definition of compensability in cases involving the “120-day rule”
of section 440.20(4), Florida Statutes. Under this provision, a
carrier may investigate an employee’s entitlement to benefits, but
must “admit or deny compensability within 120 days after the
initial provision of compensation . . . .” § 440.20(4), Fla. Stat.
(emphasis added). This Court has declared that the provision is
not limited to the initial request for benefits following an accident.
Rather, it may also be invoked when a new injury or condition later
arises and treatment is requested. See Sierra v. Metro. Protective
Servs., 188 So. 3d 863, 866–67 (Fla. 1st DCA 2015) (while accident
was accepted as compensable, the parties litigated whether later
arising PTSD was a compensable condition); McIntosh v. CVS
Pharmacy, 135 So. 3d 1157, 1159 (Fla. 1st DCA 2014) (explaining
that the 120-day pay-and-investigate period relates to
compensability of both the initial accident and to a specific

41
condition); Bynum Transp., Inc. v. Snyder, 765 So. 2d 752, 754 (Fla.
1st DCA 2000) (holding section 440.20(4) applies to any claim for
compensability of any injury made following date of accident, not
just the first claim).

The majority’s new and narrow interpretation of
compensability is dispelled by the operation and language of the
tolling provision itself. As its opening phrase instructs, section
440.19(2) only applies if benefits have been paid: “Payment of any
indemnity benefit or the furnishing of remedial treatment, care, or
attendance . . . . shall toll the limitations period set forth above for
1 year from the date of such payment.” § 440.19(2), Fla. Stat. If no
benefits have ever been paid following a work accident, the tolling
provision is never triggered. Accordingly, to define an “issue of
compensability” as limited to only that of the accident itself would
render the exclusion meaningless.

Other provisions of chapter 440 establish that compensability
is not limited to the initial determination of compensability of the
accident itself. Rather, it has a twofold application. It also applies
to injuries or conditions that may arise post-accident. The term
“compensable” is used in chapter 440 no less than forty times and
“compensability” approximately seventeen times. Many of these
provisions underscore the same principle: compensability is not
limited to the mechanism of the accident itself but must be
evaluated anew with each distinct injury or complaint. See, e.g.,
§ 440.09(1), Fla. Stat. (“The employer must pay compensation or
furnish benefits required by this chapter if the employee suffers an
accidental compensable injury or death arising out of the work
performed in the course and scope of employment. The injury, its
occupational cause, and any resulting manifestations or disability
must be established to a reasonable degree of medical certainty,
based on objective relevant medical findings, and the accidental
compensable injury must be the major contributing cause of any
resulting injuries.” (emphasis added)); § 440.13(1)(d), Fla. Stat.
(defining compensable as “a determination by a carrier or judge of
compensation claims that a condition suffered by an employee
results from an injury arising out of and in the course of
employment” (emphasis added)); § 440.02(1), Fla. Stat. (“[I]f a
preexisting disease or anomaly is accelerated or aggravated by an
accident arising out of and in the course of employment, only

42
acceleration of death or acceleration or aggravation of the
preexisting condition reasonably attributable to the accident is
compensable, with respect to any compensation otherwise payable
under this chapter.” (emphasis added)); § 440.093(2), Fla. Stat.
(“Mental or nervous injuries occurring as a manifestation of an
injury compensable under this chapter shall be demonstrated by
clear and convincing medical evidence . . . .”); § 440.20(4), Fla. Stat.
(“Additionally, the carrier shall initiate payment and continue the
provision of all benefits and compensation as if the claim had been
accepted as compensable, without prejudice and without admitting
liability.”); § 440.192, Fla. Stat. (“A carrier that does not deny
compensability in accordance with s. 440.20(4) is deemed to have
accepted the employee’s injuries as compensable, unless it can
establish material facts relevant to the issue of compensability
that could not have been discovered through reasonable
investigation within the 120-day period . . . .”). Clearly, the
Legislature intended that the term “compensability,” if not
expressly qualified in context, be multi-faceted.

The PFB not only raised compensability, but also a claim for
“Permanent Impairment or Wage Loss” and “permanent
impairment benefits,” among many other claims. Such a claim is
specifically excluded from the tolling provision of section 440.19(2).
Therefore, the issue of permanent impairment would
independently preclude application of the tolling provision to the
SOL analysis here.

The three issues of compensability, MMI, and permanent
impairment are excluded from the tolling provision because the
SOL is triggered and controlled by specific statutory events and
not by resolution of medical or legal disputes. This is where we
must distinguish between the SOL as a bar to filing claims and the
concept of compensability. The SOL is extended or suspended only
by payment of benefits or the filing of a PFB. Disputes about
compensability, MMI, or impairment rating do not stop the timer.

If an E/C denies compensability, the claimant must file a PFB
within the statutory period. The mere existence of a dispute does
not extend the filing deadline. This is logical because allowing a
denial to toll the statute would undermine the legislative intent of
finality and certainty. For example, MMI is a medical analysis and

43
assignment. A claimant cannot sit back and wait to reach MMI
before filing a PFB for MMI to be established or for impairment
benefits to be paid. The statute runs independently of that medical
milestone. The SOL is paused only by specific statutory events and
does not pause just because compensability is denied or because a
claimant has not reached MMI or received an impairment rating.
Claimants must actively protect their rights by timely filing a PFB.
See Solar Pane Insulating Glass, Inc. v. Hanssen, 727 So. 2d 961
(Fla. 1st DCA 1998).

The SOL is a time bar for filing a PFB. It is not concerned with
issues of legal dispute but the lapsing of time. The Legislature
provided a reminder that issues of compensability, MMI, and
permanent impairment (all requiring legal resolution to result in
entitlement) are excluded as tolling agents. Only payment dictates
SOL calculation (regardless of why paid). However, we must be
mindful that the excluded issues do not represent categories in
which benefits were never paid. For example, new injuries or
newly arising conditions or denials of compensability based on
MCC are all included in “issues of compensability” because both
result in scenarios of nonpayment of benefits, either initially or
later in the claim. Again, the core of SOL is payment. The SOL is
a time bar that is altered by payment, when made or suspended—
not by a legal determination of entitlement.

Here, the accident was initially accepted as compensable,
benefits provided, and the benefits were terminated. It matters
not, from a SOL-clock perspective, why the benefits stop. It
matters only that the nonpayment prompts the clock to start. The
filing of a PFB then stops it. The SOL runs independently of the
reasoning behind payment or denial. The burden remains on the
claimant to protect their rights by timely filing. Once Estes’s
benefits ceased on January 26, 2023, the time clock began to tick
again. The PFB at issue was untimely because it was filed more
than two years after the accident and more than one year after last
provision of benefits. The JCC correctly determined that the PFB
is barred by the SOL.

Ultimately, even if Estes is not bound by her stipulations
below that the PFB raised an issue of compensability, an
independent review of the PFB confirms it does raise an issue of

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compensability as contemplated by the tolling provision.
Accordingly, the tolling provision does not apply, and the PFB is
barred. This conclusion is compelled regardless of whether “toll” is
defined as suspending or extending. In other words, the language
of section 440.19(2) precludes its application in this case because
an issue of compensability was raised (and caused benefits to cease
thereby activating the SOL). The legal issue of the definition of
“toll” is irrelevant to the SOL analysis here. The tolling provision
does not apply regardless of how “toll” is interpreted, so we have
no cause to define it and must leave it for another day.

Definition of “Toll” in Section 440.19(2)

I fully join Judge Bilbrey’s thoughtful and well-reasoned
dissent. The majority has redefined the term “toll” in section
440.19(2), which we cannot do without receding from precedent.
See Sanchez v. Am. Airlines, 169 So. 3d 1197, 1198 (Fla. 1st DCA
2015); Varitimidis v. Walgreen Co./Sedgwick Claims Mgmt.
Servs., Inc., 58 So. 3d 406, 407–08 (Fla. 1st DCA 2011);
Medpartners/Diagnostic Clinic Med. Grp., P.A. v. Zenith Ins. Co.,
23 So. 3d 202, 204, 206 (Fla. 1st DCA 2009); Orange Cnty. Sch. Bd.
v. Best, 728 So. 2d 1186, 1188 (Fla. 1st DCA 1999); Claims Mgmt.,
Inc. v. Philip, 746 So. 2d 1180, 1181 (Fla. 1st DCA 1999).

The majority redefines the term “toll” to mean “suspend.” In
support, it heavily relies on the language of 440.19(5), Florida
Statutes. But this reliance is misplaced because subsection (5)
addresses application of the SOL to individuals who are mentally
incompetent or are minors. Largely, the text is cited in support of
redefining “toll” to mean “suspend” because the provision instructs
a specific stopping and starting of the clock and a bank of time, so
to speak, while the individual is without a guardian. The
subsection applies to a specific class of persons. This case does not
involve a guardian.

Construed in context, subsection (5) announces a vastly
different treatment for certain qualifying individuals only and
adds a critical distinguishing prerequisite. The subsection
provides, “If a person who is entitled to compensation under this
chapter is mentally incompetent or a minor, the limitations period
is tolled while that person has no guardian . . . .” § 440.19(5), Fla.

45
Stat. (emphasis added). For this application of the SOL time clock,
the person must meet two criteria: 1) be entitled to compensation;
and 2) be mentally incompetent or a minor. Entitlement means
there is a proven right to the specific benefit. For example, a
claimant may be eligible for benefits but has not proven
entitlement. See Guglielmo v. State of Fla.-DOC Zephyrhills
CI/Div. of Risk Mgmt., 418 So. 3d 656, 667 (Fla. 1st DCA 2025);
ESIS/ACE Am. Ins. Co. v. Kuhn, 104 So. 3d 1111, 1113 (Fla. 1st
DCA 2012). It requires that a legal determination as to entitlement
to benefits has occurred. Accordingly, this subsection is inapposite,
and no legitimate legal basis exists to apply it to the other
subsections and, more specifically, to subsection (2).

I disagree with the notion that the Florida Supreme Court in
Hankey v. Yarian, 755 So. 2d 93 (Fla. 2000), unequivocally
announced a universal definition of “toll” as “to suspend.” The
language of Hankey is intentional and repetitive in emphasizing
that its holding is based on the facts of that case and only in the
context of section 766.106, Florida Statutes, a medical malpractice
statute. Further, the opinion highlighted that its definition was
limited to “toll” as used in section 766.106(4), not a universal
application. The high court also regarded provisions of section
766.106 to provide extensions of the SOL such as paying the court
filing fee. Id. Hankey did not declare that “toll” means “suspend”
in all statutory settings. We previously recognized Hankey’s
limited application in Patrick v. Lionel Gatien, D.O., 65 So. 3d 42
(Fla. 1st DCA 2011).

The “two clock or two timer method” now adopted by the
majority is aptly named. It is a reminder that adjusters, claimants,
and attorneys will require not one but two “clocks” for every
workers’ compensation case. An actuarial degree or an “on call”
accounting firm will be required to calculate time clock status. To
this already troubling picture, add in the requirement of section
440.19(4) that the adjuster must assert the SOL defense in the first
responsive pleading to a PFB or the defense is waived. Now,
consider that the adjuster is to respond to the PFB within fourteen
days of receipt. See § 440.192(8), Fla. Stat. Consider the heavy
caseload managed by individual adjusters. Lastly, imagine an
attorney explaining the SOL to a claimant and how to protect his
or her claim. It seems unworkable. And it will be.

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For twenty-six years, this Court has correctly defined “toll”
under section 440.19(2) as an extension. While I agree with the
majority that section 440.19 is not a model of clarity, we had its
interpretation right the first time. The redefined SOL “regime” will
prove to be operationally dysfunctional and administratively
overburdensome. Perhaps there is a basis for supreme court review
of this case, and the ship can be righted. Barring that, legislative
action will be necessary to restore a workable SOL in workers’
compensation cases.

“Setting Aside” A JCC Order

A trend emerged in this Court recently of “setting aside”
workers’ compensation orders (as opposed to reversing and
remanding). It began in Ortiz:

This disposition [setting aside], upon issuance of our
mandate, renders the order of dismissal a nullity, thereby
reopening Ortiz's claim before the JCC. It has the same
meaning as “vacate.” We use this disposition, rather than
“reversed,” to reflect our separate authority to review
orders of JCCs and other administrative hearing officers.
The Office of the Judges of Compensation Claims being
in the executive branch, the orders issuing out of that
office are matters of administrative law, having effect
only within the branch of which it is a part. Unlike our
authority to review judgments and other final orders of
trial courts within our branch (which otherwise do have
legal effect outside the branch), our authority to review
orders of administrative tribunals is purely a function of
statute, our review being “judicial review” of
administrative action. See Art. V, § 4(b)(2), Fla. Const.
The Legislature in turn has separately authorized this
court to hear “appeals” from JCC orders. See § 440.271,
Fla. Stat. Even though the Administrative Procedure Act
(“APA”) does not apply in workers’ compensation
proceedings, we see no reason not to treat our dispositions
in appeals from those proceedings any differently than
the dispositions authorized by the Legislature for
“judicial review” generally in appeals from

47
administrative proceedings. See § 120.68(7), (8), Fla. Stat.
(referring to “affirm,” “set aside,” “remand,” “modify,” and
“ordering” further action as authorized remedies).

Ortiz v. Winn-Dixie, Inc., 402 So. 3d 301, 311 n.7 (Fla. 1st DCA
2024); see also, Fox v. Sarasota Cnty. Sch. Bd., 415 So. 3d 736, 738
(Fla. 1st DCA 2025); Girardin v. AN Fort Myers Imports, LLC, 403
So. 3d 255, 257 (Fla. 1st DCA 2025).

The rationale of “setting aside” JCC orders is that the Office
of the Judge of Compensation Claims (OJCC) sits in the executive
branch, and its orders are “matters of administrative law” that
have legal effect only within that branch, making judicial review a
purely statutory grant rather than an inherent appellate function.
See Art. V, § 4(b)(2), Fla. Const. Accordingly, the remedy
vocabulary of the Florida Administrative Procedure Act (APA) set
the framework for resolution of JCC orders on appeal. But this is
ill-conceived. Chapter 440 requires that appeals of workers’
compensation cases be treated differently than administrative
appeals. A workers’ compensation proceeding before a JCC is not
analogous with that of an administrative law judge (ALJ). Chapter
440 specifically dictates that the APA does not apply to workers’
compensation proceedings. See § 440.021, Fla. Stat. (exempting
workers’ compensation adjudications from chapter 120, stating “no
judge of compensation claims shall be considered an agency or a
part thereof”). Likewise, Chapter 120, Florida Statutes, provides
as follows: “[A] judge of compensation claims, in adjudicating
matters under chapter 440, is not an agency or part of an agency
for purposes of this chapter.” § 120.80(1)(b), Fla. Stat.

A technical importation of APA remedial vocabulary into the
workers’ compensation context reflects a misunderstanding of the
quasi-judicial nature of JCCs. The Legislature has been deliberate
that workers’ compensation adjudications operate under their own
self-contained procedural rules. Section 440.29(3), Florida
Statutes (2021) provides, “The practice and procedure before the
judge of compensation claims shall be governed by the rules
adopted by the Office of Judges of Compensation Claims.” See also
Sedgwick Claims Mgmt. Servs. v. Thompson, 419 So. 3d 1104, 1113
(Fla. 1st DCA 2025). Section 440.015, Florida Statutes, declares
the purpose of worker’s compensation as the “quick and efficient

48
delivery of disability and medical benefits to an injured worker.”
Section 440.25, Florida Statutes, implements that purpose
through a bespoke set of hearing procedures, notice requirements,
and evidentiary standards that have no counterpart in chapter 120
and broadly mirror civil court procedure. These are not gap-fillers
borrowed from the APA.

JCCs issue final orders. ALJs issue recommended orders
subject to substantive agency revision under section 120.57(1)(l),
Florida Statutes. The APA’s remedial vocabulary—“set aside,”
“modify,” “remand”—is calibrated to that hierarchical
relationship: it preserves the agency’s ongoing policy authority
even after a court has reviewed its action. A court that “sets aside”
rather than “reverses” an agency order implicitly acknowledges
that the agency retains the power and discretion to act again
within its sphere. JCCs have no such supervising agency. No
executive body reviews JCC orders for policy consistency before the
order is issued. JCC order determinations are final adjudications
of private rights—specifically, whether a particular worker has a
compensable claim under section 440.09, Florida Statutes.

JCCs, unlike ALJs, litigate property rights. “An injured
employee’s right to receive workers’ compensation benefits is a
property right protected by procedural due process safeguards
including notice and an opportunity to be heard.” Isaac v. Green
Iguana, Inc., 871 So. 2d 1004, 1006 (Fla. 1st DCA 2004) (citing
Rucker v. City of Ocala, 684 So. 2d 836, 840–41 (Fla. 1st DCA 1996)
(“An injured employee’s right to receive workers’ compensation
benefits qualifies as such a property interest.”)). JCCs may litigate
property rights because the Legislature created workers’
compensation as a statutory substitute for common-law tort rights
and vested exclusive jurisdiction over those statutory rights to
JCCs, with appellate review by article V courts. This structure was
declared constitutional in Martinez v. Scanlan, 582 So. 2d 1167
(Fla. 1991). 3

3 ALJs are governed by the Division of Administrative
Hearings (DOAH) and appointed by the Chief ALJ. They serve as
career executive-branch adjudicators and are disciplined by the
Chief ALJ. JCCs, on the other hand, are governed by the OJCC.
They are appointed through a merit based executive process

49
Borrowing APA remedial language imports a deference that
has no structural justification in the workers’ compensation
context. Section 440.271, Florida Statutes, grants this Court with
jurisdiction to hear “appeals” from JCC orders. Full stop. It does
not cross-reference chapter 120. It does not incorporate APA
remedial categories by reference. It does not instruct this Court to
treat JCC appeals as judicial review of executive agency action.
The rationale that the OJCC is nominally organized under the
executive branch and so the full range of appellate dispositions is
somehow unavailable or inapplicable is contrary to sections
440.021 and 120.80. Because JCC orders are reviewed by plenary
appeal pursuant to Florida Rule of Appellate Procedure 9.180, this
Court exercises full appellate authority—the same authority we
exercise over court judgments. There is no doctrinal rule requiring
“set aside” rather than “reverse.” Nothing in chapter 440 limits
this Court’s remedial authority to vacatur only. Function must
control over a label. The choice is functional, not jurisdictionally
constrained.

“Setting aside” an order means that the court nullifies,
vacates, or renders the order ineffective (as if it had never been
entered). It does not necessarily mean that the case is over but that
the order is undone and the issues may be reconsidered or reheard.
However, “set aside” requires the prior order to be treated as
though it never existed. The JCC begins anew—possibly to make
new findings or conduct a new merits hearing. Reversal does not
render the order a nullity. It declares it to be incorrect or explains
how the lower court or tribunal was wrong. Reversal most often
means a limitation to the existing record. However, vacatur may
result in no new evidence being considered or that a new hearing
is required and the record is open. A practical example spells out
the impact in workers’ compensation appeals: An employer asserts
a claimant misrepresented a prior condition, and the JCC denies

different from article V judges and ALJs. The Chief Financial
Officer (CFO) of Florida appoints JCCs. Then, they must be
retained every four years. JCCs are subject to the Code of Judicial
Conduct and disciplined by the OJCC and may be removed by the
CFO.

50
benefits under section 440.105, Florida Statutes. If this Court
reverses on the basis that the evidence was legally insufficient to
prove all elements of defense, then the defense fails as a matter of
law, the JCC proceeds as though no misrepresentation defense bar
exists, and the claim proceeds to the merits. If we were to reverse
with directions to award benefits, the JCC must award benefits,
and litigation is effectively concluded beyond calculations of
benefits due. However, if the order is set aside or vacated because
of lack of notice that the E/C asserted a misrepresentation defense,
a new hearing is required, evidence may reopen, defense can be re-
litigated properly, and the E/C can rectify notice mistakes.
Because the order on appeal is “set aside” and treated as a nullity,
the matter begins anew. The due process issues resulting are
immeasurable.

Because of the piecemeal litigation of workers’ compensation
cases, finality and clarity are critical. When a JCC’s order is set
aside and rendered a nullity, it leaves the lower tribunal docket
with no technical resolution. Is the JCC to issue a status order to
document the determination of claims raised in the outstanding
PFBs that are the focus of the nullified order? What does this do to
SOL calculations (especially now with multiple time clocks), res
judicata analysis, and whether issues are ripe for adjudication?

Workers’ compensation is a statutory creation, and
adjudication of those statutory rights does not invade core article
V judicial power. That established, there is no authority depriving
this Court, which has exclusive jurisdiction over all workers’
compensation appeals, of the remedies of reversal and remand. As
the vacatur of the order on appeal renders it a nullity, on remand
the JCC is technically at liberty to set a new hearing, take
additional evidence, and litigation begins anew. Because this
Court is not bound by APA remedial options, the majority should
reverse and remand the order and not set it aside.

---

Randall T. Porcher of Morgan and Morgan, Tallahassee; Joseph
Bilotta of Vassallo, Bilotta & Davis, West Palm Beach, for
Appellant.

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William H. Rogner of HR Law, P.A., Orlando, for Appellees.

52