September 24, 2020 Posted in Articles
Case Law Update – 5/29/20 – 9/21/20
By Laura A. Buck
City of Bartow/Commercial Risk Management v. Flores
45 Fla. L. Weekly D1298a
The issue in this case surrounds the one-time change provision of 440.13(2)(f), specifically the fourth sentence, which addresses the failure of the E/C to provide a change in physician. In this case, the E/C timely responded to the Claimant’s request for a one-time change in physician. This fact was undisputed. Despite the timely response, the Claimant argued, and the JCC agreed, that the E/C failed to timely provide an alternate physician to the Claimant. The evidence showed that the Claimant was not notified of an appointment with the alternate physician until 56 days after the one-time change request was made by the Claimant. The JCC found the E/C failed to satisfy its obligation under the statute to provide an alternate physician.
The DCA agreed with the JCC’s findings, and in the written opinion provided in depth analysis of what satisfies the E/C’s obligation under 440.13(2)(f) to provide an alternate physician, or forfeit its right of selection. It was acknowledged that prior cases have interpreted the timely response clause of 440.13(2)(f) to mean that an appointment is not needed when an alternate physician is authorized within give days, but that the appointment must be timely authorized. Ultimately, the DCA stated that the requirement for the E/C to provide an alternate physician “encompasses affirmative action” on the E/C’s part, and that per the statute, the parties are under an “implied duty to act reasonably and fairly.” The factual evidence in this case showed the provision of the one-time change physician was unreasonably delayed.
The finding of the JCC was affirmed, and the question of whether the E/C’s duty under 440.13(2)(f) is fulfilled solely by timely authorizing an alternate physician, or whether the E/C must actually provide the Claimant an appointment date with the alternate physician.
City of Jacksonville v. O’Neal
45 Fla. L. Weekly D1385b
On Motion for Rehearing filed by the Claimant, the DCA reversed and remanded for further consideration of the evidence. This claim had been previously appealed by the parties, as such, this was the second appellate review of the case. The Claimant suffered from congenital atrial tachycardia resulting in atrial fibrillation. On initial review by the JCC, the claim was deemed compensable, as the trigger of the condition was found to be work-related. On first appeal, the DCA remanded for findings regarding the underlying triggering condition and diagnosis, to make further findings. On remand, the JCC again granted compensability of the Claimant’s congenital atrial tachycardia. The DCA, in the current case, reversed and remanded, finding that under the trigger theory, it was unclear as to whether the trigger was due to a work-related or non-work-related cause. The evidence showed that the Claimant’s initial episode of atrial fibrillation was from a non-occupational cause, as it was medically induced during a cardiac procedure. Further, the evidence revealed other episodes of atrial fibrillation may have been caused from exercise that was unrelated to work. The DCA remanded for the JCC to further consider the trigger theory, in view of the “exercise-related” medical evidence.
With regard to the cross-appeal on the denial of the 2014 date of accident, the DCA found the 2014 claim could not be revisited on remand, as the prior appeal only applied to the 2002 claim. Further consideration of the 2014 claim was beyond the jurisdiction of the JCC and the DCA.
Medina v. Miami Dade County/Risk Management of Dade County
45 Fla. L. Weekly D1702a
Following surgery related to the work accident, the Employer paid the Claimant his full pay, and the Carrier did not issue any TTD/TPD benefits because of the full pay. In order to provide full pay, the Employer deducted from the Claimant’s personal sick and leave time. It was the Carrier’s understanding that the leave time would be reinstated, but this was not confirmed by the E/C. The Claimant filed a Petition for indemnity benefits, which was denied by the JCC, who found the Claimant received his full pay, and ordered his leave time be reinstated. The DCA reversed the JCC’s denial of indemnity benefits, stating that the Claimant was entitled to indemnity benefits under 440.09(1), since his full pay was funded by his personal leave time, and did not constitute payment of indemnity benefits. The payment of full pay utilizing leave time does not entitle the E/C to an offset of benefits, which would relieve them of an obligation to pay indemnity benefits. Further, the JCC has no jurisdiction to reinstate the sick/vacation time used, as it is outside the purview of the statute.
LSG Sky Chefs, Inc./Liberty Mutual v. Santaella
45 Fla. L. Weekly D1727a
The DCA affirmed the JCC’s ruling that the Claimant did not make misrepresentations as to her wages when completing DWC19 forms or in deposition. The JCC found the claimant did not misrepresent her post-injury earnings, as she told the E/C that her husband’s paychecks are issued to her, and deposited into her bank account. The JCC stated the Claimant did not provide any false information regarding this issue, and it was clear she did not earn the wages. As such, her TPD benefits should not be affected. Additionally, the JCC rejected the misrepresentation defense, as it related to the Claimant’s medical condition. The JCC stated any inconsistences between the surveillance and Claimant’s reported abilities were not intentional, and likely due to the Claimant being a poor historian.
Thompson v. Escambia County School Board/Escambia County School District
45 Fla. L. Weekly D1963a
The Claimant sustained a right knee injury. The authorized provider determined she was not a surgical candidate, and that her chondromalacia and meniscus tear were due to pre-existing conditions. The Claimant then obtained an IME, who recommended surgery, and stated the meniscus tear and aggravation of chondromalacia were due to the work accident. A PFB was filed seeking authorization of surgery. The JCC accepted the opinions of the IME as to causation, but ruled the claim for surgery was premature, as no authorized provider had recommended same. The DCA found this was error because the IME opinions are admissible, and may be used to support a specific claim for benefits.
Guerlande v. Delray Beach Fairfield Inn & Suites/Travelers
45 Fla. L. Weekly D1990b
The JCC denied indemnity benefits for a 12 day period following the accident, during which work restrictions were lifted, and no indemnity was paid. The Claimant failed to show that any work restrictions were imposed during this 12 day period, or that restrictions were medically justified. The medical evidence did not support the claimant’s argument. The DCA affirmed the decision of the JCC in denying benefits for these 12 days.