Briefly Speaking – FL Case Law Updates (10/3/18)

Whiteside, John vs. DEDC, LLC

JCC Arthur: Lakeland District                                     Order Date: September 17, 2018

OJCC Case: 17-026675RAA                              Date of Accident: 11/11/2016

Claimant’s Counsel:   Bradley G. Smith         E/C’s Counsel:  Michael R. Beane     

JCC Order: Click Here

Summary: Apportionment – Claimant suffered an injury to his right knee, sustaining a meniscal tear of the knee and an aggravation of pre-existing asymptomatic arthritis in the knee. The authorized treating physician and IME provider agreed that the work accident resulted in a torn meniscus in the right knee and acceleration of pre-existing osteoarthritis, but disagreed as to the major contributing cause (MCC) of the claimant’s disability and need for care. An EMA was appointed to resolve the dispute. The EMA opined that the work accident accounted for 60% of Claimant’s disability and need for treatment, and 40% was attributable to the asymptomatic, pre-existing arthritis. The E/C sought to apportion 40% of future medical and indemnity benefits, from July 14, 2017, and continuing, per F.S.§ §440.15(5)(b). The JCC found that the E/C was entitled to apportion the claimant’s indemnity benefits and future medical care.

Torain, Evangeline vs. Duval County Public Schools

JCC Humphries: Jacksonville District             Order Date: September 14, 2018

OJCC Case: 16-003854RJH                              Date of Accident: 1/26/2015

Claimant’s Counsel:   Holley Nicole Akers     E/C’s Counsel:  Gregory B. Lower

JCC Order: Click Here

Summary: Medical Benefits & Medical Necessity –  Claimant suffered a compensable right shoulder injury and psychiatric injury while breaking up a fight in the course and scope of employment. Claimant sought authorization of and reimbursement for an emotional support animal per her authorized psychiatrist for treatment of  PTSD and anxiety symptoms. E/C obtained a psychiatric IME who opined that an emotional support animal was not medically necessary. E/C then sought appointment of an EMA. Claimant opposed the EMA on the basis that that medical necessity had been established by operation of law under F.S.§ 440.13(3). The JCC ruled that the objection should be heard at final hearing and allowed the matter to proceed to an EMA. The EMA opined that the emotional support animal was not medically necessary. The EMA was challenged on cross examination, but the JCC determined that the E/C waived the right to contest medical necessity per F.S.§ §440.13(3), and declined to make a determination on the EMA’s testimony. F. S. §440.13(3)(d) requires a carrier to respond, either by telephone or in writing, to a request for authorization from an authorized healthcare provider “by the close of the third business day after receipt of the request” or the carrier consents to the medical necessity for such treatment. Subparagraph (i) allows 10 days to respond to a written request for authorization of “specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, x-ray examinations, or special diagnostic laboratory tests that cost more than $1000 and other specialty service that the department identifies by rule.”

The JCC ruled that the E/C waived its challenge to a determination of medical necessity because it failed to timely respond to the request for an emotional support animal. Both the 3-day time limit and 10-day time limit had passed before a Response to the PFB was filed. E/C argued that the 3/10-day rule on medical necessity did not apply because the statute does not address emotional support animals, but the JCC found that the 1st DCA has made clear that some response by the E/C to medical requests is required within the 3/10-day time period. E/C also argued that an emotional support animal is not medical treatment per the statute, to which the JCC disagreed. The JCC found the emotional support animal to be authorized, and ruled that Claimant should be reimbursed for having obtained the recommended care under the “Parodi” doctrine (once a claimant makes a specific request for medical care, allows the carrier a reasonable time to respond to that request, and then obtains medically reasonable and necessary care, the care is authorized.) 

Martin, Daniel vs. Florida Lifts, LLC

JCC Forte: Fort Lauderdale District                 Order Date: September 20, 2018

OJCC Case: 17-023152IF                                  Date of Accident: 7/25/2017

Claimant’s Counsel:   Brian P. Vassallo         E/C’s Counsel:  J. Craig Delesie, Jr.   

JCC Order:  Click Here

Summary: Compensability & 120 Day Rule – Claimant alleged that he injured himself during the course and scope of his employment, resulting in a pop in his back. Claimant said he reported the incident to his project manager. Claimant sought treatment at the same facility in which he had been treating 6 months prior for back pain resulting from unloading a truck at work. Claimant admitted that he had suffered from back pain since he was 18 years old due to being rear-ended in a motor vehicle accident, resulting in a discectomy at L4-L5. Claimant treated and paid out of his own pocket, and made no claim against his employer because they were a small company. Claimant was referred to a spine surgeon. The E/C indicated the employer was made aware of the accident once a PFB was filed.  A 120 day pay and investigate letter was sent to Claimant on 10/27/17. The carrier authorized a spine surgeon, who opined that the industrial accident was not the major contributing cause (MCC) of the conditions at issue on 3/6/18. No notice of denial per the 120 day letter issued was generated. In a response to the PFB on 6/1/18, a denial was issued. The JCC reviewed Claimant’s medical treatment and noted that he failed to report any injury to his provider 7 days after the alleged accident occurred. Counsel for the E/C held a conference with the authorized surgeon to review records of pre-existing treatment, and the surgeon opined that the industrial accident was not the MCC of Claimant’s pain symptoms and need for treatment. Claimant obtained an IME who opined that the work accident was the MCC of Claimant’s need for treatment, as Claimant was able to work prior to the industrial incident.

            The Claimant contends the E/C is estopped from challenging the requested benefits, as any defense was waived when the E/C failed to deny the claim within 120 days of asserting the 120-day Rule. The E/C responded that estoppel does not prevent the MCC defense when the facts supporting it are subsequently discovered. The JCC found that the carrier had accepted compensability by failing to deny compensability within the 120 day pay and investigate period, noting that all relevant records for denying the claim were in the employer/carrier’s possession prior to the end of the 120 day pay and investigate period. While the JCC found that the claimant had credibility issues and likely failed to report his injury to the employer, and despite no evidence of a work injury and material misrepresentations the claimant made in securing treatment, the E/C did not raise misrepresentation as an affirmative defense in the pre-trial stipulation, so the court awarded the requested benefits. 

Paniagua, Blanca vs. Parrot Key Resort

JCC Owens: Port St. Lucie District                   Order Date: September 13, 2018

OJCC Case: 17-000734KFO                              Date of Accident: 2/25/2016

Claimant’s Counsel:   Jason Barnett              E/C’s Counsel:  Allison Hartnett        

JCC Order: Click Here

Summary: Fraud/Misrepresentation –  Claimant was injured in the course and scope of her employment. Claimant resided in Key West, Florida and her medical providers were located in Miami, Florida, so Claimant was provided transportation to her appointments. Later, Claimant drove herself to appointments. Claimant submitted mileage reimbursement forms seeking reimbursement for travel to authorized medical appointments in Miami. Review of the submitted mileage forms show that Claimant requested reimbursement for attendance at medical appointments on two dates when she did not have medical appointments. It is undisputed that Claimant did not attend medical appointments on the dates at issue. Claimant returned to work after the industrial accident and, along with a co-worker, provided false information to the employer to obtain wages when they did not work. Employer requires workers to enter a PIN when clocking in and out of a shift and a picture is taken of the person clocking in. Claimant also exchanged her PIN with another co-worker to be clocked in when running late, and Claimant also clocked in and out of work on days she did not work and was actually attending a medical appointment in Miami. Claimant and her co-worker were terminated from their employment based on time clock fraud, and Claimant’s workers’ compensation benefits were terminated upon the assertion of a misstatement defense.

Claimant’s misstatements were listed to include inaccurate mileage on two dates and the time clock fraud. The E/C asserted that Claimant knowingly “submitted false documentation” under F.S.§440.105 to obtain a benefit. The JCC reviewed the mileage form and found that one of the dates at issue was written in a different ink and in different handwriting. The entry failed to include an address and misspelled the provider’ name. Claimant’s attorney’s assistant testified that she added the inaccurate entry before submitting it. This change was made without Claimant’s permission or without contacting Claimant to confirm the appointments actually took place. The appointment at issue was actually canceled by Claimant. The second misstatement on the form was made by the claimant, who argued that she made a mistake in preparing the form. Claimant did have a scheduled appointment, but canceled same and did not attend and simply forgot she did not attend the appointment. She based her mileage form submission off of her appointment cards. The JCC found this compelling when coupled with the fact that Claimant also failed to claim mileage that she was due. The JCC found that the Claimant did not knowingly or intentionally submit the forms for the purposes of obtaining workers’ compensation benefits as outlined in F.S.§440.09(4)(a) . While Claimant’s time clock fraud was done for the purpose of obtaining wages from her employer for time she did not work, the JCC found that it was not for the purpose of securing workers’ compensation benefits. E/C’s misstatement defense was rejected, and Claimant was found to be entitled to the benefits requested, including compensability.