Case Law Update December 2020

Case Law Updates

Sullivan v. NUCO2, LLC/Broadspire, (Fla. 1st DCA  12/9/2020)

120-Day Rule/Waiver/Apportionment/De-Authorization

The DCA reversed the JCC’s apportionment of IBs and medical care, but affirmed his finding of an 18% PIR and continued authorization of Dr. Steen.  Following a 2016 shoulder injury, an MRI showed a massive rotator cuff tear and significant pre-existing changes. One-time change Dr. Steen performed shoulder surgery in 2/17.  After placing the claimant at MMI in 1/18 with an 18% PIR, Dr. Steen signed an E/C letter saying apportionment was 60/40 pre-existing (he later receded from this opinion).  The E/C then de-authorized Steen based on no ongoing MCC and apportioned the IBs accordingly. EMA Dr. Torres opined the need for future medical was 70% due to the work injury. The JCC accepted Torres’ opinions, awarded IBs at a 13% PIR (70% of 18%) and awarded continued care with Steen, but only for palliative care of the aggravation of the underlying condition. He rejected claimant’s waiver arguments. Waiver under the 120-day rule requires finding (1) the date the E/C first provided benefits, (2) the specific identity of the injury for which benefits are provided and (3) whether there was timely denial of the injury within 120 days of the date of initial provision of benefits.  Although the JCC employed this analysis, the DCA found the evidence and case law did not support his conclusions. They rejected that the E/C initially only accepted an aggravation, and found the E/C were on notice of the degenerative condition at the time of the initial MRI in 2016. They found no evidence of investigation or documented knowledge of the condition until the attorney’s contact with Dr. Steen in 3/18. As nothing precluded the E/C’s discovery of material facts about the prior condition, the E/C cannot now later deny benefits.  The DCA rejected the E/C’s cross appeal on the appropriate percentage of apportionment, finding the EMA’s 12% could be rejected by the JCC because the E/C did not adequately state that as a disputed matter. Finally, they found the JCC properly ordered continued care with Dr. Steen, based upon the evidence and their ruling.    Click here to view Opinion

Palm Beach Cty. Fire Rescue/PGCS v. Wilkes, (Fla.1st DCA 12/14/20)

First Responder PTSD Claims/Timely Notice

The DCA reversed the JCC’s Order which (1) found  the claimant’s PTSD compensable and (2) awarded indemnity benefits. Effective 10/1/18, F.S. s. 112.1815(5)(a) made PTSD a compensable occupational disease under F.S. 440.151.  The statute does not require an accompanying physical injury  but must result from one of 11 specific events. The Statute states such a claim is measured from one of the qualifying events or the manifestation of the disorder, whichever is later. The statute also says the claim must be properly noticed within 52 weeks of the qualifying event. The claimant responded to a call where a boy drowned in 2015. In April/May of 2019, after diving with friends, the claimant relayed a dream in which he dreamt the drowned boy was his son. He was subsequently diagnosed with PTSD for which, according to a medical opinion the 2015 incident was the precipitating cause. Ultimately, the JCC found the PTSD manifested itself on May 30, 2019, that the claim for PTSD was timely noticed, and awarded indemnity.  The DCA reversed, rejecting  the claimant’s arguments that the manifestation was the qualifying event, as the statute specifically lists only 11 such events. Additionally, they held the first sentence of F.S. s. 112.1815(5)(d) expressly distinguishes between occurrence of the qualifying event and manifestation.  They considered the claimant’s arguments that F.S. s. 440.151 establishes the date of disability as the date of accident, and prior case law interpreting that concept in an SOL analysis. They held that the notice requirement at issue here operates as a statute of repose, which “bar[s] actions by setting a time limit within which an action must be filed as measured from a specified act, after which time the cause of action is extinguished”.  Finding the Legislature intended such claims to be filed within 52 weeks of the statutorily enumerated qualifying event, the DCA reversed, holding the 2019 Notice of the 2015 was untimely.    Click here to view Opinion

 Valle v. American Airlines/Sedgwick, (Fla.1st DCA 12/20/20)
Costs/Prevailing Party
 
The opinion provides no details of the underlying case, affirms the JCC’s denial of attorney fees for the benefit at issue, but reverses as to claimant’s entitlement to prevailing party costs and fees associated with proving that entitlement. The opinion merely states “Costs awards to prevailing parties are mandatory, and Claimant is the prevailing party because the benefit was not provided before the Employer/Carrier received the petition for benefits.” See § 440.34(3), Fla. Stat. (2011); Jennings v. Habana Health Care Ctr., 183 So. 3d 1131, 1133–34 (Fla. 1st DCA 2015).  This decision confirms that where a benefit is provided after the PFB is filed, even though fees may not be due, the claimant is entitled to prevailing party costs, if any were incurred. Maintaining a denial to costs in such a situation may create exposure for fees related to those costs.           Click here to view Opinion

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 HR LAW 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