Case Law Update April 2020
HR Law Cases
JCC Pitts (Orlando)(Rogers Turner) – Denied Claimant’s Motion for $2,000.00 Advance. The claimant (who has an accounting degree and speaks Creole, Spanish and English) was allegedly injured on May 22, 2019 while lifting mattresses. The E/C denied the claim due to untimely notice, and no authorized care had been provided. The claimant continued to work for the employer into early June, and has not worked at all since July 3, 2019. He had not been terminated by the employer, had not applied for unemployment compensation, had not been looking for alternative work, and had not been given any work restrictions from any physician, authorized or not. Although a proper claimant, the JCC found that no Competent Substantial Evidence had been provided to support that the claimant had suffered a substantial loss of earnings nor was there sufficient testimony to support an award of $2,000.00.
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JCC Lewis (Ft. Lauderdale)(Derrick Cox) – Awarded entitlement to taxable costs but denied entitlement to attorney’s fees for those costs. The only issue tried at the hearing was entitlement to attorney’s fees and costs. The E/C accepted compensability of the claimant’s injuries and authorized medical care. On June 7, 2019 the claimant filed a PFB seeking authorization of a follow-up appointment with the authorized treating psychologist, Dr. Jalazo. One day prior, on June 6, 2019, a good faith effort had been emailed to the claims adjuster requesting same. The adjuster faxed authorization for a follow-up appointment to the doctor’s office on June 7, 2019. On June 18, 2019 the adjuster filed a written Response to the PFB stating that Dr. Jalazo remained authorized and that the claimant may contact Dr. Jalazo’ s office directly to schedule an appointment. The claimant saw Dr. Jalazo on July 8, 2019. At the hearing, claimant’s counsel withdrew the claim for attorney’s fees but maintained entitlement of prevailing party costs and subsequently, attorney’s fees for securing such costs. Citing Jennings v. Habana Heath Care Center, the JCC determined that the claimant was entitled to prevailing party costs pursuant to 440.34(3) but denied the claimant’s claim for attorney’s fees for securing entitlement to such costs. The JCC noted that subsection specifically states a prevailing party may obtain reasonable costs “…not to include attorney fees.”
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COVID-19
The Florida Office of Insurance Regulation and the Department of Financial Services, respective, have each recently issued Informational Memoranda. The OIR Memo purports to provide “guidance” in relation to COVID-19 claims. The Memorandum, however, merely cites to the CFO Patronis’ Directive 2020-05 (providing compensability for Frontline State Employees who test positive), and then states that “First Responders, health care workers, “and others” that contract COVID-19 due to work-related exposure “would be eligible for WC benefits”, citing to F.S. s. 440.151. The memorandum does have the force of law. If you have any questions regarding COVID -19 claims, please contact our office.
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The DFS Informational Bulletin of 3/31/20 notifies carriers that DFS does not believe it is appropriate for carriers to deny authorization for reimbursement for prescription medications solely because the medication is dispensed by a treating physician who is a licensed Florida dispensing practitioner rather than a pharmacist. The Bulletin interprets F.S. s. 465.0276 and F.S. s. 440.13(12)(c) as providing authority for this conclusion. The Bulletin does not explain why F.S. s. 440.13(3)(j) fails to include a “dispensing practitioner” in the statute instead of, or along with the specific “pharmacy or pharmacist”. As this issue has not been ruled upon by the Appellate court, clients are encouraged to call our office to discuss this Bulletin.
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DCA Cases
AHCA v. Rodriguez, (Fla.1st DCA 4/17/20) Medicaid Lien Calculation/Recovery for Damages
Rodriguez was seriously injured in a car accident. Medicaid paid out $154,219.00. The PI suit was subsequently settled for $500,000.00. Medicaid asserted it was owed $126,021.00 of the settlement proceeds. The plaintiff alleged the value of the case was $6 million dollars. Competent substantial (and unrefuted) evidence supported the ALJ’s use of a pro rata formula to determine that the portion of Rodriguez’s settlement which should be allocated as past medical expense was less than the amount calculated by AHCA under section 409.910(11)(f). The DCA affirmed the ALJ’s determination that AHCA’s recovery under section 409.910(17)(b) was $12,800.00. However, they reversed the ALJ’s reduction of the $12,800.00 for an amount relating to the attorney’s fees in the underlying civil case, and remanded to DOAH to increase the amount awarded for satisfaction of AHCA’s lien to $12,800.00.
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Pannell v. Escambia County School Board Dist./Risk Mgmt. Svcs., Inc., (Fla. 1st DCA 4/15/20) Pre 2003 PTD/Five step sequential analysis
This school bus driver’s injury occurred in 1999 and resulted in neck, back, shoulder and psychiatric issues. The E/C continued to provide authorized treatment through the 4/18 Merit hearing. Claimant worked until 6/03, electing disability retirement at age 49. In 1/02, the E/C asserted the claimant exhausted 104 weeks of benefits. However, post-Westphal, in 2017, the E/C paid additional TTD through 4/03. While the claimant did not reach overall MMI until 2011, the JCC found the parties agreed the claimant would have reached statutory MMI 12/30/04, when 260 weeks of TTD expired. At hearing on her 2017 claims for TTD for those periods and PTD, the JCC awarded the TTD but denied PTD. The JCC’s denial of PTD examined the five step sequential SSD standard applicable to her date of accident, and found that under step 5 (whether claimant can perform other significant work found in significant numbers in the local economy based upon her age, education and work experience), that the significant vocational issue was her age. Under his analysis, her retirement when she was 49 would render her employable per the vocational testimony, but when she turned 50 (under SSD analysis), her status was suddenly unemployable. The DCA reversed per Houck v. Lee County Board of Commissioners, noting he erred by including in his analysis a “time” element that does not exist in the statute, and in effect injected a “policy” rationale similar to the one the JCC used in Houck as a basis for denying the PTD claim. They noted the court previously made this clear and the issue was addressed by the statute’s amendment in 2003. They further stated the JCC erred by reading into Houck a requirement that a claimant who retires prior to when the possibility of entitlement to PTD ripens must show a deterioration in her condition upon reaching MMI in order to establish entitlement to PTD benefits.
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Please note that the DCA Opinions and Merit Orders contained in this newsletter are non-final until 30 days after their rendition. Until that time, they are subject to amendment, vacation, or other action which may remove or alter some or all of the decision. Please contact any HRMCW attorney if you have a question as to the finality and applicability of an Opinion or Order. We endeavor to include any amendments or alterations to Opinions or Orders that may occur at a later date