What’s Hot in Workers’ Comp, Vol. 27, No. 12, December 2023

TOP 10 DEVELOPMENTS IN FLORIDA WORKERS’ COMPENSATION IN 2023

By
Linda Wagner Farrell

1.    Death benefits under Chapter 112 (Firefighter’s cancer diagnosis).
Christy Siena v. Orange County Fire Rescue/CCMSI, No. 1D2022-0958, On appeal from an order of the OJCC, Neal P. Pitts, Decision Date: Oct. 25, 2023

The Judge of Compensation Claims ruled that death benefits under Chapter 112 (Firefighter’s cancer diagnosis) were the claimant’s sole remedy. The First District Court of Appeal disagreed and held that the workers’ compensation death benefit is in addition to the benefits provided in Chapter 112. 

2.    Allowing your manager to “pop” your back is not an injury that arose out of employment.
East Coast Waffles, Inc. d/b/a Waffle House, and Brentwood Management Services, Inc. v. Jonathan L. Haselden, No. 1D21-3745, On appeal from an order of the OJCC, William R. Holley, Decision Date: Oct. 4, 2023

A claimant, who participated in his manager “popping” his back at the end of a 17-hour shift, did not sustain an injury that arose out of his employment. The First District Court of Appeal reversed the Judge of Compensation Claims on two points. First, the claimant never plead or proved that the 17-hour shift was the cause of his injuries, which the First District Court of Appeal said would be a repetitive-type trauma with a higher burden of proof. Second, he did not meet his burden to show that the injuries from the manipulation arose from his work. He acquiesced to the manipulation; it was not performed to support his work as a grill cook; and was merely an effort to relieve pain at the end of his workday. 

3.    Florida Appellate Court does a deep dive into the meaning of heart disease.
North Collier Fire Control and Rescue District and PGCS v. John David Harlem, Decision Date: Aug. 9, 2023

After conducting a deep dive into the definition and meaning of “heart disease,” the First District Court of Appeal reversed the judge of compensation claims and held that a thoracic aortic aneurysm is not “heart disease” under the occupational causation presumption found in Section 112.18, Florida Statutes. 

4.    The burden of proof remains! Causal connection must be proven. 
Normandy Insurance Company v. Mohammed Bouayad and Value Car Rental, LLC, Case No. 1D21-1717, On appeal from an order of the OJCC, Neal P. Pitts, Decision Date: Aug. 16, 2023

The First District Court of Appeal reversed the Judge of Compensation Claims’ finding of compensability involving this claimant, who was shot by an unknown assailant while walking between his employer’s locations, did not meet his burden of proof for causal connection. However, the Appellate court certified a question to the Supreme Court for clarification:

Notwithstanding Strother v. Morrison Cafeteria, 383 So. 2d 623 (Fla. 1980), when an act of a third-party tortfeasor is the sole cause of an injury to an employee who is in the course and scope of employment, can the tortfeasor’s act satisfy the occupational causation element, as defined by Section 440.02(36), Florida statutes, necessary for compensability under the Worker’s Compensation Law?

As an update on this case, the motion for rehearing en banc was denied on October 20, 2023.

5.    Delaying a decision on compensability by opting to pay and investigate requires written notice, and the letter does not start the 120-day period.
Churchill VDBI Services, LLC and Corvel Corporation, Case No. 1D 21–3199, On appeal from Judge Clark, Decision Date: May 31, 2023

The First District Court of Appeals held that an employer/carrier’s election to delay their decision about compensability by opting to pay and investigate requires written notice and that the initial provision of benefits starts the 120-day period, not the letter sent to the claimant. But only the letter invokes the right to rely on the pay and investigate statutory mechanism. The court indicated: “…only a timely letter will suffice.”

6.    It is imperative to acknowledge all requests/referrals within the proper time frames.
James Johnson v. Palm Beach County School/York Risk Services Group, OJCC Case No.: 19-004371TAH, Judge Hedler, District Court of Appeal Case No.: 1D22-1080

The Judge of Compensation Claims ruled that a recommendation for a second opinion via referral from an authorized treating physician is subject to both Sections 440.13(3)(d) and 440.13(3)(i). Section 44.13(3)(d) provides: “A carrier who fails to respond to a written request for authorization for referral for medical treatment by the close of third business day after receipt of the request consents to the medical necessity for such treatment.” Section 440.13(3)(i) provides that a claim for specialist consultations “is not valid and reimbursable unless the services have been expressly authorized by the carrier, unless the carrier failed to respond within 10 days to a written request for authorization.” It is imperative to acknowledge all requests/referrals within the time frames above. The First District Court of Appeal affirmed without a written opinion (Per Curiam issued by First District Court of Appeal on May 3, 2023.) 

7.    Medical transportation and the ongoing challenges post-COVID with vendors not being staffed appropriately.
James Godwin v. Sarasota County Government and Johns Eastern Company, Inc., OJCC# 22-018728, JCC Grindal, St. Petersburg District, Decision Date: Mar. 30, 2023

This is an interesting case from a Judge of Compensation Claims involving medical transportation that highlights the ongoing challenges post-COVID with vendors not being staffed appropriately. The judge emphasized that there is a difference between authorizing and providing benefits. The transportation company was unreliable, but no efforts were made to find another vendor. 

With regard to advising the claimant that he could use a rideshare company and seek reimbursement, the judge pointed out that there is no statutory support for the contention that the claimant can be required by the employer/carrier to use his own funds for treatment and then seek reimbursement for the funds he expended. Therefore, the judge held that the offer of reimbursement does not satisfy the employer/carrier’s duty to provide medical transportation and granted the request for the provision of medical transportation.

8.    Per curiam opinion finds there was competent, substantial evidence to support the judge’s findings. 
Lita Lange v. Cleveland Clinic Martin Health Systems, Inc., and Cleveland Clinic Tradition Hospital/Commercial Risk Management, Inc., No. 1D22-1150, Decision Date: Feb. 22, 2023

A clinical coordinator who received a required flu vaccine was later diagnosed with Guillian-Barre Syndrome (GBS). She claimed that she timely reported this after the GBS was diagnosed and related it to the flu vaccine administered many months before. The Judge of Compensation Claims did a very thorough analysis of GBS and found that the claimant’s timing of the vaccine versus the timing of her symptoms did not correlate with the medical evidence. The judge also analyzed Daubert objections made by both parties. The judge agreed with the untimely reporting defense asserted by the employer/carrier. The claimant appealed the judges’ final order, and the First District Court of Appeal issued a per curiam opinion indicating that there was competent, substantial evidence to support the judge’s findings. 

9.    The Appellate Court finds that the employer/carrier forfeits the right of seeking a one time physician change due to an untimely response.
Jace Andrews v. McKim & Creed and Travelers Property Casualty, No. 1D21-427, Decision Date: Feb. 1, 2023 

The claimant sent a written request to the employer/carrier on June 20, 2019, exercising his right to one time change in physician. The employer/carrier failed to respond. On July 2, 2019, the claimant filed a Petition for Benefits, again requesting the one time change. Twenty-seven days later, the employer/carrier filed a response granting the change and naming Dr. Feiertag as the alternate physician with corresponding appointment information. The claimant did not attend the appointment. Subsequently, the claimant voluntarily dismissed the petition.

Then on July 28, 2020, the claimant filed a second petition, requesting authorization of his chosen alternate physician, Dr. Roush. Three days later, the employer/carrier indicated that the claimant’s request was denied and that Dr. Feiertag was the current authorized one time change physician. Before the hearing on the second petition, the claimant had an evaluation from Dr. Roush on his own.

At the hearing, the claimant argued that the employer/carrier forfeited its right of selection when it failed to respond timely to his first request on June 20, 2019. The employer/carrier argued that the claimant’s voluntary dismissal of the first petition waived or extinguished his right of selection, and that his filing of the second petition equated to a new request for a one time change to which it responded timely. 

The Judge of Compensation Claims concluded that, because the claimant did not attend the employer/carrier’s scheduled appointment, he did not acquiesce to the authorization. The judge also rejected the argument that the claimant had forfeited his right of selection. However, the judge denied the claimant’s request for authorization of Dr. Roush because the claimant had withdrawn his request for a one time change when he voluntarily dismissed the petition in its entirety, and because the second petition constituted a new request. The claimant filed a motion for rehearing, which the judge denied. This appeal followed.

The Appellate Court held that the judge erred as follows: (1) by determining that the claimant waived his right of selection when the affirmative defense of waiver was never raised by the employer/carrier until their trial memorandum; (2) in holding that the voluntarily dismissal signaled a withdrawal or abandonment of the request for a one time change when the claimant had asserted his right to a one time change in writing prior to filing the first petition; and (3) failing to adhere to the First District Court of Appeal’s holding in City of Bartwo v. Flores, 301 So. 3d 1091 (Fla. 1st District Court of Appeal 2020), which held that the employer/carrier forfeits the right of selection if it fails to timely respond. 

The order was reversed and remanded for authorization and scheduling of an appointment with Dr. Roush as the claimant’s one time change physician.

10.    Florida District Court of Appeal upholds denial of benefits to a first responder for his claims of mental injuries from work-related trauma.
Roger Williams v. Brevard County Fire Rescue/PGCS, District Court of Appeal # 22-0533

The First District Court of Appeal affirmed the final compensation order below, opining that the expert medical testimony supported the Judge of Compensation Claims’ denial of the claimant’s Fla. Stat. Sec. 112.1815(2)(a)(3) claim. It was held that the accident did not give rise to any need for treatment due to post-traumatic stress disorder, or any other compensable mental injury, regardless of the evidence standard used by the judge. However, they agreed with the claimant’s assertion that first responder claimants can seek workers’ compensation benefits for PTSD under either Sec.112.1815(2)(a)(3) or paragraph (5) or both.

 

What’s Hot in Workers’ Comp, Vol. 27, No. 12, December 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.