13-002940 Florists Mutual Insurance Company vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed DOAH Final Order on Monday, September 30, 2013.

Summary: Late delivery of Petition by U.S. Postal Service did not prevent Petitioner from asserting its rights in some extraordinary way, so as to warrant application of equitable tolling.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORISTS MUTUAL INSURANCE

COMPANY ,

Petitioner ,

vs. Case No. 13 - 2940

DEPARTMENT OF FINANCIAL

SERVICES, DIVISION OF WORKERSÓ

COMPENSATION ,

Respondent .

/

FINAL ORDER

On September 3, 2013, a he aring was held pursuant to

sections 120.57(1) and 120.574, Florida Statutes (2013), via

video teleconference with sites in Orlando and Tallahassee,

Florida, before Administrative Law Judge F. Scott Boyd of the

Di vision of Administrative Hearings.

APPEARANCES

For Petitioner: Matthew Joy, Esquire

Hurley, Rogner, Miller, Cox,

Waranch and Wescott, P.A.

Suite 500

1560 Orange Avenue

Winter Park, Florida 32789

For Respondent: Mari H. McCully, Esquire

Department of Financial Services

Division of WorkersÓ Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

STATEMENT OF THE ISSUE

The issue to be determined is whether the doctrine of

equitable tolling should excuse the late fil ing of a Petition

for Administrative Hearing filed with Respondent by Petitioner

Flo rists Mutual Insurance Company.

PRELIMINARY STATEMENT

Petitioner Florists Mutual Insurance Company (Florists) and

Kendall Regional Medical Center (Kendall) had a dispute ov er

reimbursement of inpatient hospital services provided by Kendall.

Respondent Department of Financial Services (Department) issued a

Reimbursement Dispute Determination in the matter, which was

received by Florists on April 8, 2013. Petitioner mailed a

Petition for Administrative Hearing on April 25, 2013, which was

not received by the Department until May 1, 2013.

Respondent issued a Notice of Intent to Dismiss Petition for

Administrat ive Hearing on the basis that the Petition was not

received by the D epartment within the 21 - day time period.

Petitioner then timely filed for an administrative hearing on the

issue of whether the doctrine of equitable tolling should excuse

its earlier late filing. On August 6, 2013, the case was

referred to the Division of Administrative Hearings for

assignment of an administrative law judge.

On August 16, 2013, with agreement of the Department,

Petitioner filed a Motion for Summary Final Hearing. The Motion

was granted on August 19, 2013, and the case was scheduled for

hearing on September 3, 2013. Respondent submitted a written

agreement to summary proceeding as required by

section 120.5 74(1)(b) on September 4, 2013.

At hearing, the parties stipulated to the introduction of

two composite exhibits: P - 1, consisting of t he original

Reimbursement Dispute Determination, the initial Petition for

Hearing in that matter (Initial Petition), the Postal Service

receipts for delivery of the Initial Petition, and a related

Postal Service tracking document; and P - 2, consisting of

Pe titionerÓs Response to the DepartmentÓs Intent to Dismiss

Petition for Administrative Hearing (Second Petition), Postal

Service receipts for delivery of that Response, and a related

Postal Service tracking document. The parties also stipulated at

hearing to the facts relating to mailing as they were set f orth

in the Second Petition.

These stipulations of the parties are reflected in the

Findings of Fact set out below. Respondent recorded the

proceeding with a recording device, but the recording was not

tr anscribed or filed. Both parties submitted Proposed Final

Orders, which have been considered in the preparation of this

Order.

FINDINGS OF FACT

1. Respondent , the Department, is the state agency charged

with resolvin g disputes over reimbursement for co sts of medical

services provided to injured workers under workersÓ compensation

law.

2. Petitioner Florists was in a reimbursement dispute with

Ken dall. The Department issued a D etermination that Florists

should reimburse Kendall the sum of $100,894.54.

3. Florists received notice of the Reimbursement Dispute

Determination on April 8, 2013, via United States Postal Service

certified mail.

4. The Reimbursement Dispute Determination included a

Notice of Rights advising Florists that a request for an

admin istrative hearing on the Determination had to be received by

the Department within 21 days of FloristsÓ receipt of the

Determination. It noted in bold print that failure to file a

petition within that time period constituted waiver of the right

to a heari ng.

5. FloristsÓ Initial Petition was sent via certified mail

from the Tallahassee office of PetitionerÓs counsel located at

1701 Hermitage Boulevard, Suite 103, Tallahasse e, Florida , on or

about Thursday, April 25, 2013. The filing deadline was the

foll owing Monday.

6. The Initial Petition was appropriately addressed to

Ð Julie Jones, CP, FRP, DFS Agency Clerk, Department of Financial

Services, 612 Larson Building, 200 East Gaines Street,

Tallahassee, Florida. Ñ

7. The Initial Petition was received by th e Department o n

Wednesday, May 1, 2013, at 10: 11 a.m.

8. The Department determined that the Initial Petition was

untimely , as it was received on the twenty - third day after

Florists received notice, making it two days late.

9. Petitioner is a workersÓ com pensation insurance carrier

whose substantial interests are affected by RespondentÓs

Reimbursement Dispute Determination tha t it must reimburse health

care provider Kendall $100,894.54. That determination will

become final if Petitioner is determined to h ave waived its right

to a hearing.

10. The distance between the Tallahassee office of

PetitionerÓs counsel and the office of the Department is

approxim ately four miles.

11. From review of the United States Postal Service

tracking information, it appears that after the Initial Petition

was mailed, it was processed in Louisville, Kentucky, before it

returned to Tallahassee, Florida, for delivery, indicating a

journey of some 1,050 mil es over the course of six days.

12. Late delivery of the Petition by the United States

Postal Service did not prevent Flor ists from asserting its

rights.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569, 12 0.57, and 120.574,

Florida Statutes. 1/

14. Pursuant to section 440.13(7), Florida Statutes, t he

Department is granted authority to resolve reimbursement

disputes when petitioned to do so by a health care provider

which disagrees with a workers' compensati on insurance carrierÓs

disallowance or adjustment of reimbursement for medical services

rendered to its insured. The Department's determination in such

a dispute constitutes intended agency action.

15. RespondentÓs Reimbursement Dispute Determination

req uires Petitioner to reimburse health care provider Kendall

$100,894.54. Petitioner is entitled to a hearing on whether its

untimely filing should be excused. P hillip v. Univ. of Fl a . ,

680 So. 2d 508, 509 (Fla. 1st DCA 1996). Petitioner has

standing in t his proceeding.

16. The parties have invoked the summary procedure set

forth in section 120.574, which provides that if all parties

agree in writing, a hearing may be conducted with expedited

timeframes, limitations on available motions, and with final

or der authority vested in the administrative law judge.

17. RespondentÓs Reimbursement Dispute Determination

clearly advised Petitioner of the DepartmentÓs determination.

In an extensive Notice of Rights, it also advised Petitioner

that any request for hea ring had to be received by the

Department within 21 days of PetitionerÓs receipt of the

determination. This offered a clear point of entry, which has

not been disputed by Petitioner.

18. Florida Administrative Code R ule 28 - 106.111, entitled

Point of Entr y into Proceedings and Mediation, provides in

relevant part:

(2) Unless otherwise provided by law,

persons seeking a hearing on an agency

decision which does or may determine their

substantial interests shall file a petition

for hearing with the agency wi thin 21 days

of receipt of written notice of the

decision.

* * *

(4) Any person who receives written notice

of an agency decision and who fails to file

a written request for a hearing within 21

days waives the right to request a hearing

on such matters. This provision does not

eliminate the availability of equitable

tolling as a defense.

19. Pursuant to Florida Administrative Code Rule 28 -

106.104(1), a petition is filed when it is "received by the

office of the Agency Clerk during normal business hour s.Ñ

Riverwood Nursing Ctr., LLC v. Ag. for Health Care Admin , 58

So. 3d 907, 912 (Fla. 1st DCA 2011). It was stipulated that the

Initial Petition was received on May 1, 2013, at 10.11 a.m. This

was two days beyond the deadline.

20. At hearing, Petition er first argued that pursuant to

Florida Administrative Code R ule 28 - 206.103, entitled Computation

of Time, five days should be added to the 21 - day time limit

beca use notice of the DepartmentÓs d etermination was sent by

regular U.S. mail. Petitioner did n ot pursue this in its

Proposed Order, and the argument is rejected. Rule 28 - 206.103

itself specifically provides that these additional days shall

not be added when the period of time begins pursuant to a type

of notice described in rule 28 - 106.111, relati ng to an initial

point of entry. See Watson v. Brevard Cnty . Clerk , 937 So. 2d

1264, 1266 (Fla. 5th DCA 2006).

21 . Section 120.569(2)(c) provides that a petition for

administrative hearing shall be dismissed if the petition has

been untimely filed, but expressly notes that this does not

eliminate the availability of equitable tolling as a defense.

See also Fla. Admin. Code R . 28 - 106.111(4); Pro Tech Monitoring,

Inc. v. Dep't of Corr. , 72 So. 3d 277, 281 (Fla. 1st DCA 2011).

22. The doctrine of equitab le tolling is applied in the

interest of justice to permit an administrative hearing that

otherwise would be barred by untimely filing. Ð The doctrine

serves to ameliorate harsh results that sometimes flow from a

strict, literalistic construction and appli cation of

administrative time limits contained in statutes and rules.Ñ

Machules v. DepÓt of Admin. , 523 So. 2d 1132, 1134 (Fla. 1988)

( quoting Machules v. DepÓt of Admin., 502 So. 2d 437, 446

(Zehmer, dissenting) ) .

23. However, the doctrine is applied sp aringly. It is not

applicable to excuse the Ðtoo ordinary occurrence of a party's

attorney failing to meet a filing deadline.Ñ Env tl . Resource

Assoc. v. Dep't of Gen. Servs. , 624 So. 2d 330, 331 (Fla. 1st

DCA 1993)(equitable tol ling not applied to excuse late filing of

petition sent by certified mail one day prior to deadline). As

the Florida Supreme Court described in Machules , supra ,

Ð[g]enerally, the tolling doctrine has been applied when the

plaintiff has been misled or lulled into inaction, has in s ome

extraordinary way been prevented from asserting his rights, or

has timely asserted his rights mistakenly in the wrong forum.Ñ

24. Here, Petitioner asserts that the action of the United

States Postal Service , in routing its Petition to Louisville,

Kent ucky, and taking six days to deliver a letter that would

usually be delivered in only one or two days, was

ÐextraordinaryÑ so as to justify application of the doctrine.

In Cann v. Department of Children & Family Serv ices , 813 So. 2d

237, 239 (Fla. 2d DCA 2002) , the court held that a letter sent

the day before the filing deadline but delivered a day late did

not warrant equitable tolling, stating that, Ðtwo days for the

postal delivery of a letter is not Òextraordinary.ÓÑ The court

did go on to note at pag e 239 in footnote three:

In Appel v. DepÓt of State , 734 So. 2d 1180

(Fla. 2d DCA 1999), this court noted that

equitable considerations would apply to

extend a similar administrative time limit

when Appel mailed his request five days

before the time limit expired, but the post

office took nine days to deliver the letter

250 miles. Our decision in Appel , however,

rested primarily on a determination that

Appel's request was, in fact, timely because

Appel had the benefit of the five - day

mailing rule. In this case, the five - day

mailing rule does not apply. See: Fla.

Admin. Code R. 28 - 106.103.

It is not entirely clear whether the purpose of this footnote

was to suggest that the Second District is no longer committed

to the dicta in the Appel decision that e quitable tolling would

have applied there, or if its purpose was merely to draw

contrast between an ÐundeservingÑ two - day delay and a more

ÐdeservingÑ nine - day one.

25. PetitionerÓs assertion that Appel is Ðsquarely on all

foursÑ with the instant case is not correct, not only because

the Ðequitable considerationsÑ in that case were said not to be

controlling, but because of the cryptic footnote in Cann .

RespondentÓs assertion at hearing that Cann overruled Appel is

similarly overstated. It is true that t he basis for the ruling

there -- that the Ðfive - day mailing ruleÑ applied -- is no

longer good law due to changes in the statute and administrative

rules, but these changes did not affect the discussion of

equitable tolling.

26. Every person familiar with postal delivery knows that

delays in mail delivery can, and often do, occur. The ÐusualÑ

delivery time is not guaranteed. That the Petition was not

delivered on Friday or the following Monday is not necessarily

Ðextraordinary,Ñ even when new tracking se rvices can reveal the

reason for that delay -- information that previously would have

remained a mystery. In any event, the application of equitable

tolling in this case cannot be reduced to a determination of

whether the six - day delivery time here is clo ser to the two - day

delivery time in Cann or the nine - day delivery time in Appel .

There is no bright line or mechanical rule to determine when

equitable tolling is warranted; the particular circumstances of

each case must be considered. Cf . Holland v. Flo rida , 130 S.

Ct. 2549, 2563 (2010) .

27. Federal court decisions, from which the Florida

Supreme Court in Machules crafted its standard for application of

equitable tolling to administrative proceedings in Florida,

emphasize that a petitioner must exercise due diligence in

preserving his legal rights. Baldwin C nty . Welcome Ctr. v.

Brown , 466 U.S. 147, 151 (1984)(one who fails to act diligently

cannot invoke equitable principles to excuse lack of diligence).

28. Under the facts of this case, the six - day de livery

time, even if deemed Ðextraordinary,Ñ in no way prevented

Petitioner from asserting his rights. A diligent Petitioner

might easily have ascertained that the Petition had not yet been

received - Î through these same new tracking services or a simple

phone call to Respondent Î - in time to dispatch a courier from

its Tallahassee office across the four miles to meet the pending

deadline. Cf . Vantage Healthcare Corp. v. Ag. for Health Care

Admin , 687 So. 2d 306, 307 (Fla. 1st DCA 1997)(concluding

equitab le tolling not available because no quasi - judicial

proceeding was involved, but noting that equity would not

justify application of the doctrine where a party chose to use

overnight courier at the last minute but made no effort to

confirm that the letters were actually delivered, and they were

delivered one day late). Having chosen to utilize mail service,

a Petitioner is not thereafter relieved of the responsibility to

act with due diligence to assert his rights. "Equitable tolling

is appropriate when a movant untimely files because of

extraordinary circumstances that are both beyond his control and

unavoidable even with diligence." Sandvik v. United States , 177

F.3d 1 269, 1271 (11th Cir. 1999).

29. This is not to conclude that mailing delay could never

warrant equitable tolling, but only that it does not do so here,

where PetitionerÓs counsel had an office minutes away from the

clerkÓs office of a State agency, and ready access to

information indicating whether the petition had actually been

delivered a s expected. While this conclusion may seem contrary

to the important goal of ameliorating harsh results where there

is no prejudice to the other party, there is an equally

important competing value: the filing deadlines of procedural

rules must be routin ely enforced if they are not to become

blurred and unreliable.

30. The doctrine of equitable tolling does not apply to

excuse the late filing of the Initial Petition for

Administrati ve Hearing filed by Petitioner.

31. In the absence of equitable tolling, Petitioner waived

its right to a hearing pursuant to r ule 28 - 106.111(4).

32. Respondent did not issue an order that will itself

mature into final agency action, but instead chose to issue a

Notice of Intent to Dismiss the Petition at some later date,

aft er chapter 120 proceedings or waiver thereof. 2/

CONCLUSION

In view of the foregoing findings of fact and conclusions of

law, it is hereby

ORDERED that:

The Petition of Florists Mutual Insurance Company

challenging RespondentÓs Notice of Intent to Dism iss Petition

for Administrative Hearing is DISMISSED.

DONE AND ORDERED this 30th day of September , 2013 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

T he DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of September , 2013 .

ENDNOTES

1/ All citations are to the Florida Statutes (2013) unles s

another version is indicated.

2/ However denominated, an agencyÓs adverse determination of a

party's substantial interests is ineffective until after

proceedings under s ection 120.57 have been conducted or waived.

Capeletti Bros. v. State , 362 So. 2d 346, 348 (Fla. 1st DCA

1978).

COPIES FURNISHED :

Mari H. McCully, Esquire

Department of Financial Services

Division of WorkersÓ Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

Mat thew Joy, Esquire

Hurley, Rogner, Miller, Cox,

Waranch and Wescott, P.A.

1560 Orange Ave nue , Suite 500

Winter Park, Florida 32789

Julie Jones, CP, FRP, Agency Clerk

Division of Legal Services

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

P. K. Jameson, General Counsel

Department of Financial Services

The Capitol, Plaza Level 11

Tallahassee, Florida 32399 - 0307

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

en titled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Administrative Appeal with the

agency cl erk of the Division of Administrative Hearings and a

second copy, accompanied by filing fees prescribed by law, with

the District Court of Appeal, First District, or with the

District Court of Appeal in the appellate district where the

party resides. The Notice of Administrative Appeal must be

filed within 30 days of rendition of the order to be reviewed.