Case Law Update July 2021
Updated 7-30-21
| Jones v. State of FL/DOC Columbia Correctional Institute/Div. of Risk Management, ___So.3d ___(Fla. 1st DCA 7/28/21) Psychiatric Claims/Limit on Benefits post Physical MMI The claimant was attacked and placed in a chokehold by an inmate on 1/7/19. She attained physical MMI with a 0% PIR two weeks later. She later obtained authorized psychiatric care, was diagnosed with acute stress and PTSD and taken out of work until 11/11/19. The E/C paid six months of TTD as of her physical MMI date and then stopped paying. The JCC agreed with the E/C and denied her claim for additional indemnity, finding that F.S. s. 440.093(3) (…”Subject to the payment of permanent benefits under s. 440.15, in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee’s physical injury or injuries…), and the 2017 Utopia Healthcare v. Alvarez case precluded additional indemnity. The DCA reversed. Although they agreed the JCC incorporated the “bank not a window” initial analysis, they noted that the 2008 W.R. Roe & Sons v. Razo-Guevara case held that this provision “does not apply to a claimant not being paid impairment benefits.” The Razo-Guavara opinion included the Merriam-Webster definition of “Subject to” (“dependent on some act or condition”) and found the limitation does not apply “unless benefits are being paid.” Click here to view Opinion Jones v. Grace Healthcare, ___ So.3d___, (Fla. 1st DCA 6/30/21) Medical Benefits/Medical Marijuana The initial PFB sought authorization of a referral by the authorized doctor for an evaluation by a doctor ostensibly qualified to examine the claimant and write him a certification to access medical marijuana. The referring doctor and the claimant’s IME testified the referral was medically necessary. The E/C argued that state law precludes reimbursement for marijuana and federal law prohibits the employer from paying for it. The JCC found that although the evidence showed the evaluation was medically necessary, (1) F.S. s. 381.986(15)(f) prohibits reimbursement of marijuana under Chapter 440, (2) the statute prohibits reimbursement for such evaluations and (3) that doing so could subject the E/C to federal criminal penalties. The JCC denied a motion for rehearing arguing the claimant was not seeking payment for medical marijuana, but rather reimbursement for the evaluation by a doctor who could write the certification for the drug. The DCA affirmed the JCC, but for slightly different reasons than those stated. They found that the requested evaluation could not be medically necessary, because as a matter of law the marijuana is not reimbursable or medically necessary. The DCA rejected Jones’ effort to distinguish the service (evaluation) that will lead to marijuana treatment from the treatment itself, calling it a “false distinction.” They noted that if an evaluation is for treatment for an otherwise medically unnecessary or non-compensable treatment, then the referral cannot itself be medically necessary. In a footnote they noted this was true even where the parties stipulated to medical necessity or potentially waived it. Finally, they found Federal Law also controlled, despite other states’ and Florida’s permission for medical marijuana use. Click here to view Opinion Hannoush Jewelers, Inc/Mass. Bay Ins./Hanover Ins. Grp. V. Bly, ___So.3d___ (Fla. 1st DCA 6/30/21) TPD/Impact of Receipt of Unemployment The DCA affirmed the JCC’s grant of a one-time change without comment. As to the TPD issue, the E/C asserted the claimant’s receipt of UC benefits should be “offset” and be credited to them to result in a smaller amount of liability. The claimant argued this was an affirmative defense that the E/C waived. The JCC’s Final Order awarded TPD less UC received during that period pursuant to F.S. s. 440.15(10)(b) (stating UC benefits “shall be primary” and resulting TPD “shall be supplemental…”). At rehearing, in response to the waiver argument the E/C countered they listed “claimant has subsequent employment and earnings.” The JCC found the argument preserved, but that TPD was not an “offset.” The DCA rejected the claimant’s waiver argument, as they rejected the premise that UC benefits is an “offset.” Although parties must plead entitlement to offsets as an affirmative defense, the DCA noted that an offset is a reduction in an amount an E/C must pay, and a credit, as with the offset for Social Security benefits. However, receipt of UC benefits does not “reduce” entitlement to TPD; rather TPD is supplemental to UC. If UC exceeds the indemnity threshold, there is nothing to “offset.” The DCA noted that although prior cases (Nat’l Advertising/3M v. Wise and Ocean Manor Resort Hotel V. Garbalosa) suggested UC benefits were an offset, such language was dicta and does not alter the plain meaning of the statute. Click here to view Opinion |
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