Morgan’s Tip of the Week – Another Constitutional Challenge to Fla WC
Greetings, last week the 1st DCA issued a ruling in Frankel v. Loxahatchee Club, Inc. (1D15-1289), regarding apportionment (440.15(5)(b)). Click HERE for Frankel case.
The E/C argued that they only needed to pay 55% of the claimant’s arthroscopic shoulder surgery, because the treater said 25% was due to preexisting condition and 20% was due to degenerative changes. The E/C won at the trial level and the claimant appealed.
The claimant had two arguments on appeal; the E/C failed to prove entitlement to apportionment, and if they did, apportionment is an unconstitutional violation of the Claimant’s rights to access to courts.
(Interestingly, the 1st DCA had previously ruled that apportionment may not survive a “Daubert” objection by the claimant in the Giamo case. Click HERE for Giamo case. In Frankel, the claimant did object under “Daubert”, but only on the Pretrial and not at the doctor’s deposition. Therefore the claimant waived this objection.)
In Frankel, the DCA upheld the JCC’s ruling that the E/C proved apportionment, but only 25% not 45%. As far as the constitutional challenge, they stated the claimant failed to show the ruling prevented access to courts. The DCA noted the JCC order did not require the claimant to pay any specific amount or show that the doctor would not do the surgery for 55% of the total cost. The claimant also did not provide evidence that the 45% of his condition needed to be treated in order to treat the compensable 55%, the hindrance to recovery theory. Because the claimant failed to demonstrate his right to access to courts had been violated, the DCA declined to find the provision unconstitutional as applied to him.
Without saying it directly though, the ruling implies if the claimant had shown he had to pay a certain amount for his treatment or he could not have the surgery, they may have ruled a different way. The pending case before the Fla Sct, Stohl, is a constitutional challenge based on the claimant having to pay the $10 co-pay. The claimant’s counsel in Frankel may ask the Fla Sct to look at this case as well.
As always, let me know if you have any questions.
Morgan Indek | Partner