Case Law Update July 2022
Updated 8-1-22
| DFS Recission Recently, the Division of Worker’s Compensation rescinded a memo, originally issued 3/31/20, which stated that a carrier’s refusal to pre-authorize and pay for medication prescribed and dispensed by a physician was inappropriate and contrary to law. The Division recission was the result of a settlement of an administrative action that alleged the Division’s memo was procedurally and substantively defective. The Division’s recission of the memo is effective to the date it was issued and states the bulletin does not apply to any pending reimbursement disputes. The Division will hold future rulemaking hearings to explore the subject more thoroughly, as many saw the original memo as procedurally and substantively defective. To discuss this matter further, please contact our office. Jean Baptiste v. Sunrise Community/FARA, ___So.3d___(Fla.1st DCA 7/20/22) Prevailing Party Costs/IME No-Show Fee The DCA denied four of the five issues claimant raised on appeal in relation to the JCC’s award of prevailing party costs to the E/C in the amount of $11,950.70. However, they reversed and remanded as to the award of one half of the no-show fee ($900.00) assessed by the E/C’s IME Dr. Rosabal. The claimant appeared for the IME with a videographer and Dr. Rosabal cancelled the IME. The E/C alleged the cancellation was due solely to the claimant’s lack of notice of the videographer, and the fee was properly ordered. However, the DCA noted that although the Florida Civil Procedure Rules require prior notice of recording, no such WC rule or statute requires this. The DCA noted that under F.S. s 440.13(5)(d)’s cancellation fee provision, the fee is appropriate where the claimant fails to appear without good cause, but not where “constructive” failure to appear is alleged. No other authority existed to award the cancellation fee. Click here to view Opinion Sandifort v. Akers Custom Homes, Inc. and Amerisure Ins., ___So.3d__(Florida 1st DCA July 13, 2022) Death Benefits/Dependency Bill Rogner The First DCA affirmed the JCC’s denial of death benefits to the mother of deceased 16-year-old son who drowned on his first day of work. The 16-year-old had a permanent learning disability, received SSI benefits and had never worked a day in his life prior to the IA. The claimant argued that she qualified for death benefits under 440.16(1)(b) as she and her other children depended upon her 16-year-old’s SSI benefits, which came to an end upon his death and that the statute does not limit dependency to her son’s wage-earning ability or his capacity to separately provide for himself. The JCC found that the claimant could not show actual dependency on her son as the statute anticipates a dependency on the deceased employee’s wage-earning capacity, not his entitlement to welfare payments. Click here to view Opinion |