Briefly Speaking April 2024

Editor: Felicia Wymer, Partner, Pensacola

Author: Travis Coleman, Junior Partner, Tampa

Author: Libby Nelson, Associate, Orlando

Rocio Ortiz v. US Parking Limited

JCC Medina-Shore:   Miami District                                  Order date:   3/8/2024

OJCC Case:   22-027067SMS                                              Date of Accident:    7/29/2022

JCC Order: Click Here

Briefly:  Emergency Care, Self Help Provision

Summary: Handled by our very own Ryan Knight from the Miami office. The claimant injured her bilateral hands, knees, shoulders, cervical and lumbar spine. She was referred to an orthopedic doctor after relocating to New Jersey. The claimant was placed at MMI 0% on her first visit with the orthopedic doctor. About a month later, she requested a one-time change. Within 2 days of the one-time change request, the claimant presented to the ER with right knee pain and cold symptoms, being discharged the same day with no abnormalities shown on a right knee x-ray. The Claimant seeks compensability and payment of the ER bill.  With regard to the alleged self-help provision, the JCC noted that past medical treatment can be awarded at the expense of the employer only where care has been wrongfully denied and the employer or carrier has been afforded a reasonable opportunity to provide such care. It is the claimant’s burden to establish that he or she made a specific request for care and allowed the E/C a reasonable time to respond. The claimant testified that after her one-time change request, her knee pain worsened. With no authorized provider to go to, she went to the ER. The JCC examined Section 440.13(2)(f), stating that the original doctor is immediately deauthorized, but only after the E/C names the new or one-time change physician. As the E/C in this case didn’t name a new doctor until 4/14/2023, the doctor became deauthorized after the ER visit. The Self-Help provision was inapplicable here as the claimant failed to prove the E/C denied medical care. Turning to Emergency Care, although the claimant testified that her knee was red, swollen, painful, and she had issues walking, she did not testify that she felt these symptoms were life-threatening, nor did she call the paramedics nor was she transported to the ER via ambulance. This, along with the bills not being introduced as evidence, led the JCC to rule that the treatment in the ER did not constitute emergency care under section 395.002(8).


Brian Bacchus v. DNL Logistics, Inc.

JCC Newman:   Tallahassee District                                   Order date:  4/5/2024

OJCC Case:   21-017737JLN                                               Date of Accident:    4/20/2021

JCC Order: Click Here

Briefly:  Authorization of Medical Care, 120-day Pay-and-Investigate

Summary: The claimant slipped and fell onto his back. Authorization for the neck and back pain was granted, and the claimant treated at an ER and urgent care. The claimant was diagnosed with an exacerbation of preexisting condition of the thoracic and lumbar spine. The claimant later reported pain in his right hip when walking. Specifically dealing with the right hip, the claimant was eventually referred to pain management who ordered an MRI to rule out pathology in the hip. On February 26, 2022, the MRI was completed showing mild to moderate osteoarthritis. In October 2022, the claimant was referred to an orthopedic surgeon to determine the suitability of a right hip replacement. The claimant was recommended for cortisone injections in the right bursa, and PRP to help symptoms in the hip. Eventually, on June 21, 2023, the claimant failed conservative treatment and was recommended for total hip arthroplasty. This was the subject of a June 30, 2023, PFB, which the E/C denied for major contributing cause concerns. At no point did the E/C notify the claimant that the cause of the right hip injury was being investigated, and no 120-day letter was ever sent out. The JCC determined that the MCC of the cause of the claimant’s need for treatment was the claimant’s longstanding osteoarthritis and hip impingement were unrelated to the work injury. However, the JCC found it unnecessary for the claimant to prove that his work accident was the MCC of the need for surgery, as the E/C waived its right to contest compensability of the claimant’s osteoarthritis under the 120-day rule. “A condition or injury may be deemed compensable if the carrier begins payment for that condition or injury and fails to investigate within 120 days, or fails to deny compensability within that time frame.” Teco Energy, Inc. v. Williams, 234 So. 3d 816, 822 (Fla. 1st DCA 2017). The JCC found that the E/C was on notice of the claimant’s arthritis as early as February 2022 after the MRI, and at the latest in October 2022 when the condition was part of the diagnosis by the orthopedic doctor. At no point did the E/C inform the claimant they were investigating, nor did they send the 120-day letter. Accordingly, the JCC awarded the right hip replacement to the claimant.


Elizabeth Winningham v. Citrus World Inc.

JCC Arthur:   Tampa District                                             Order date:  4/24/2024

OJCC Case:   19-012993RAA                                             Date of Accident:    7/20/2018

JCC Order: Click Here

First DCA Order: Click Here

Briefly:  Compensability

Summary: The claimant injured her left knee after mis-stepping. She had surgery on her left knee, but sought treatment for her right knee, claiming that she cannot recover from surgery to her left knee due to the right knee issues. Dr. Patrick Horan was the only medical testimony on the issue for this Final Hearing. Dr. Horan repeatedly stated that the right knee condition was hindering recovery of the left knee. As the claimant’s right knee was preventing her from exercising and fully developing strength/ROM in the left knee, the doctor wished to treat the left knee. As the claimant’s right knee injury was hindering the recovery from her compensable left knee surgery, the E/C was required to provide care for the right knee, to the extent that is remains necessary for the compensable injury. The E/C appealed, and the First DCA affirmed. Right knee treatment was granted.


Karen Barned v. Walmart Inc and Sedgwick CMS/Walmart & Sam’s Club

JCC Ring: Ft. Lauderdale District                                      Order Date: 04/18/2024

OJCC Case: 22-017331MJR                                                Date of Accident: 05/04/2021

JCC Order: Click Here

Briefly: Major Contributing Cause, Pay & Investigate

Summary: Compensability of multiple body parts was at issue.  The E/C accepted compensability of lumbar and thoracic spine as temporary exacerbations of a pre-existing condition.  The E/C continued to authorized medical treatment with no limitations and failed to notify the Claimant of their investigation. The court found this to be inconsistent with acceptance of only temporary exacerbation and a waiver of their right to deny compensability. Therefore, by operation of law, these conditions were deemed compensable. The also JCC found that the claimant failed to meet her burden of proof of Major Contributing Cause for the C7-T1 disc bulge, right foot pain, myalgia, and dorsalgia and compensability of these body parts was denied.


Migdalia Iglesias Garcia v. Brickell Lodging LLC /d/b/a Homewood Suites Downtown/Brickell Area and Technology Insurance Company

JCC Havers: Miami District                                                  Order date:   04/19/2024

OJCC Case:   21-009562WJH                                                 Date of Accident:    03/14/2021

JCC Order: Click Here

Briefly:  Compensability of “Self-Help” and Major Contributing Cause

Summary: The claimant treated on her own with a neurosurgeon who recommended a L4-L5 laminectomy. Following, she was treated by an authorized orthopedist who placed her at MMI at 0% PIR as he believed the accident was not the MCC of her condition. The Claimant then returned to her own neurosurgeon who performed the recommended surgery. The JCC denied Claimant’s request for reimbursement for the surgery. The JCC found that the surgery was not compensable under “self-help” as they determined that Claimant did not request the surgery as required under “self-help.” The JCC also concluded that the work accident was not the MCC of her need for lumbar surgery. The Claimant’s IME disagreed with the authorized orthopedic as to the MCC of the surgery. However, the JCC accepted the opinion of the authorized provider over the Claimant’s IME, whose opinion was found to be based on an incomplete history provided by the Claimant regarding a prior motor vehicle accident.