Case Law Update – 9/22/20 – 1/6/21

Hernandez v. J. Sterling Quality Roofing, Inc./Sterling Roofing/Summit 45 Fla. L. Weekly D2396a

10/21/20

In a prior Final Order that is on concurrently on appeal, the JCC awarded and denied some attendant care benefits. The Claimant then filed a new Petition seeking the attendant care benefit that were denied. The JCC dismissed that Petition stating that he lacked jurisdiction, given the benefits requested were the same benefits addressed in the prior Final Order. The Claimant filed a writ for certiorari or a writ of quo warranto or mandamus, which the DCA denied. The Claimant also asked that the writs be treated as an appeal, and the DCA agreed to address same, and the Order dismissing the Petition is an appealable nonfinal order. The Claimant argued that because a new prescription was obtained for the attendant care benefits that were denied, a new dispute was created that is separate from the prior Final Order and case on appeal. The DCA disagreed, and stated that the JCC was correct in dismissing the Petition.

Sanchez v. YRC, Inc./Sedgwick 45 Fla. L. Weekly D2440a

10/28/20

The Claimant sustained a lumbar injury in 2004, which was deemed compensable, and medical care with Dr. Cohen was authorized. In 2016, the parties stipulated as to the compensable body parts and treatment, which included the “lumbar spine.” In the subsequent years, medical care for the lumbar spine was limited, but then Dr. Cohen recommended a lumbar MRI. Following the MRI, which noted degenerative disc disease, among other findings, Dr. Cohen referred the Claimant to pain management, and recommended an epidural injection. The E/C denied these benefits, noting in the Pre-Trial Stipulation that the initial lumbar strain was no longer accepted. Additionally, the E/C alleged the diagnosis of degenerative disc disease, per the lumbar MRI, was an intervening event that broke the chain of causation. Of note, at the Final Hearing, neither party submitted any expert medical testimony. The only evidence was the medical records of Dr. Cohen. The JCC denied the claims for medical care finding that the Claimant did not prove entitlement to same because he did not satisfy his burden of showing that the wok accident was the major contributing cause of the need for treatment.

On appeal, the DCA reversed the decision of the JCC stating that, as outlined in Meehan v. Orange County Data & Appraisals, once compensability is established, the E/C cannot challenge the causal connection between the work accident and injury, but may only question the causal connection between the injury and the requested benefit. Therefore, it was the E/C’s burden to demonstrate a break in causation, and in this case, the E/C failed to do so. The DCA specifically noted that the lumbar MRI diagnosis of degenerative disc disease was not a break in causation, as the E/C attempted to argue.

Noland v. City of Deerfield Beach/Johns Eastern Co.  45 Fla. L. Weekly D2501c

11/6/20

The Claimant injured his left knee in 1997, and received treatment through 2001 through workers’ compensation. In 2018, he was recommended for bilateral knee replacements, due to osteoarthritis. He utilized his private health insurance to pay for the surgery, and was told by the surgeon’s office that they did not accept workers’ compensation. At the time of the surgery, the Claimant filed a Petition for Benefits seeking ongoing treatment for the left knee. In the Pre-Trial Stipulation, the parties stipulated that the left knee was the compensable body part. In the same Pre-Trial Stipulation, the E/C asserted major contributing cause of the need for treatment is no longer the work accident. At trial, the E/C established that the Claimant had a long standing history of left knee problems, prior to 1997, and that from 2001 to 2018, he was working full duty, running regularly, and performing normal activities. The JCC denied the Claimant’s Petition.

The Claimant appealed arguing that per the Pre-Trial Stipulation, the E/C accepted the left knee condition as compensable, and that condition included any pre-existing condition. The DCA rejected this argument, stating that the E/C timely asserted the major contributing cause defense in the original and amended pre-trial stipulations, and in their trial memorandum. The issue was reserved for Final Hearing, and the E/C prevailed with competent, substantial evidence. This case was distinguished from case law raised by the Claimant, and the DCA confirmed the E/C expressly asserted its major contributing cause defense as it relates to the need for treatment or a benefit requested, and this was within their rights, per case law.

Praxair, Inc./Broadspire v. Celentano 45 Fla. L. Weekly D2565a

11/16/20

At issue on appeal was the JCC’s denial of the Claimant’s request for payment of attorney’s fees related to a Petition for Benefits seeking payment of PTD benefits. The E/C timely accepted the Claimant as PTD, and argued no attorney’s fees are due or owing on the issue. Nevertheless, the Claimant filed a Verified Petition seeking a fee for securing PTD benefits. The Verified Petition was denied by the JCC, and this appeal initiated.

The Claimant argued that prior to the filing of the PTD Petition, the Claimant’s Attorney successfully defeated the E/C’s misrepresentation defense, which was raised in relation to a Petition for Benefits seeking TTD/TPD, impairment benefits, and authorization of a surgery. The Claimant argued that any future benefits received would be as a result of her attorney defeating the misrepresentation defense, as such, a fee is owed on the PTD benefits. The DCA stated that fee entitlement and the amount owed are tied to the work performed and the benefits secured by that work. The PTD benefits were separate and apart from the work performed in defeating the misrepresentation defense, and the JCC’s denial of fees was appropriate.

Sullivan v. NUCO2, LLC/Broadspire 45 Fla. L. Weekly D2759a

12/9/29

The claimant sustained a compensable right shoulder injury in August 2016. The MRI performed shortly after the accident showed pre-existing changes, as well as a rotator cuff tear. Surgery was recommended, authorized, and subsequently performed in February 2017. In early 2018, the Claimant was placed at MMI with an 18% impairment rating from the authorized doctor, Dr. Steen. Shortly thereafter, Dr. Steen opined that the Claimant’s pre-existing condition was the major contributing cause of future medical care and work restrictions, and agreed to an apportionment of 60%/40% (pre-existing/work accident). The Claimant filed a Petition seeking full payment of impairment benefits, since the E/C reduced them due to the apportionment, and also continued medical care. The E/C denied the requests on the basis of major contributing cause. The Claimant then raised wavier under the 120-day rule. The JCC ruled in favor of the Employer/Carrier.

The DCA reversed the JCC’s decision, stating that the E/C raised the right to context compensability of the pre-existing condition by operation of the 12-day rule provision, as outlined in prior case law, specifically Teco Energy, Inc. v. Williams. The DCA found that the E/C was put on notice of the pre-existing conditions by virtue of the initial diagnostic study, and that no investigation was taken until March 2018, well outside of the 120 days. Further, there was no evidence to support that the E/C limited medical authorization to treatment of an aggravation only of the right shoulder. As a result, the E/C cannot deny compensability of the pre-existing condition, and apportionment cannot apply.

Lastly, the DCA addressed the JCC’s finding that the 18% impairment rating was correct, despite the EMA providing a 12% rating. The JCC stated that the impairment rating was not at issue for the EMA, so the opinion did not carry the presumption of correctness. Of note, both the Claimant and the E/C noted the 18% rating in the Pre-Trial stipulation, which the JCC and DCA noted resulted in a joint stipulation of the parties.

Palm Beach Fire Rescue/PGCS v. Wilkes 45 Fla. L. Weekly D2788a

12/14/20

The Claimant, a first responder, filed a Petition for benefits seeking indemnity benefits pursuant to Section 112/1815(5), which allows first responders to receive indemnity benefits related to a diagnosis of PTSD, without an accompanying physical injury. The Claimant alleged that the qualifying incident, allowing him to file under the statute, occurred in 2015. The parties agreed that the qualifying incident is included in the list of “qualifying events” in the statute. The Claimant was not diagnosed with PTSD until May 2019, and filed for benefits in August 2019. When the claim was filed, the E/C argued that the Claimant reported the claim late, and failed to provide proper notice. The JCC found that because the Claimant filed for benefits within 52

weeks of the manifestation of the PTSD, or diagnosis of the condition, his filing was timely. The E/C appealed this decision.

Upon review of the case, the DCA addressed the time frame for notice of injury, as outlined in section 112/1815(5)(d), which states that it is the same as measured in 440.151(6), and is measured from one of the qualifying events, or the manifestation of the disorder, whichever is later. The statute then states that “a claim under this subsection must be properly noticed within 52 weeks after the qualifying event.” The DCA found that the JCC misinterpreted the statute on timely filing, stating that based on the plain language of the statute, it is not the manifestation date that matters, but the date of the qualifying event. As such, in this case, because the qualifying event occurred in 2015, and the Claimant did not file for benefits until August 2019, he was outside of the 52 weeks, as indicated by the statute. The JCC’s Order was reversed.

Valle v. American Airlines

46 FLW D44

12/30/20

Court determined that claimant, as the prevailing party, was entitled to cost reimbursements plus any associated attorney’s fee and costs incurred in establishing that entitlement. Cost awards to the prevailing party are mandatory.

Cristin v. Everglades Correctional Institution

46 FLW D67

12/31/20

This case involved conflicting medical testimony as to the cause of the claimant's injuries following an incident on the job. The question for review was whether the JCC had jurisdiction to determine if the testimony of one of the doctors that created the medical dispute warranting the appointment of an Expert Medical Advisor was subject to a Daubert objection. JCC determined that he did not have jurisdiction to make that determination. Court determined however that once a party raised a Daubert  objection to the testimony of one of the physicians, the JCC had the responsibility to perform the necessary analysis, make relevant supporting findings of fact and issue a ruling as to whether medical testimony should be stricken. The court determined that it was not their responsibility but rather the responsibility of the JCC to make that determination on admissibility of evidence. The court determined that such refusal to consider the Daubert objection was not harmless. Concurring and dissenting opinions.