Case Law Update June 2020

DCA Cases

City of Bartow v. Flores, (Fla. 1st DCA 5/29/20) One Time Change/E/C Duty to Provide Appointment 
The E/C responded the day after receiving a 1x change request on 6/20/17 that they would authorize a new doctor. However, by 7/19/17 the E/C had not provided an appointment date, and the claimant filed a PFB alleging waiver and naming their own doctor. The claimant indicated he would not attend an appointment with the E/C’s named doctor until the PFB was resolved. 56 days after the one-time change request, the E/C notified the claimant of an appointment with their one-time change doctor, to take place on 9/11/17. The parties presented no evidence (i.e. adjuster testimony) of the delay between “authorization” and “provision.” Counsel for the E/C made certain assertions as an “office of the court” as to alleged contact made to the doctor by the law firm staff, but the JCC determined the E/C failed to fully comply with the timely provision of an appointment, considered this a waiver and found that waiver entitled the claimant to choose the one time change doctor. 

The DCA examined the litany of cases interpreting the one-time change section of the statute. They rejected the E/C position that HMS Host Corp. v. Frederic holds that once an E/C provides timely authorization, their responsibility ends. They held that upon a written request to the E/C, section 440.13(2)(f) entitles an injured worker to a one-time change of physician. The E/C controls selection if the alternate physician is authorized within five days of receipt of the request. However, the E/C forfeits the right of selection if it subsequently fails to provide the alternate physician by “unreasonable delay” in acquisition of an appointment date. They affirmed the JCC’s ruling but certified the following question to the Florida Supreme Court as a question of great public importance: 

Whether an e/c’s duty to timely furnish medical treatment under section 440.13(2), which includes a claimant’s right to a one-time change of physician during the course of such treatment pursuant to subsection (2)(f), is fulfilled solely by timely authorizing an alternate physician to treat the claimant or whether—in order to retain its right of selection after timely authorizing the alternate physician to treat the claimant—the e/c must actually provide the claimant an appointment date with the authorized alternate physician?

Judge Winokur dissented (other than with the decision to certify the question). He noted that neither the plain language of the statute, nor the prior opinions interpreting F.S. s. 440.13(2)(f), create an obligation or waiver in regard to provision of an appointment. Any such language must come from the legislature versus judicial ruling.
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City of Jacksonville/City of Jacksonville Risk Mgmt. v. O’Neal, (Fla. 1st DCA 6/8/2020) F.S. s. 112.18 Presumption/Trigger Theory Prior 4/23/20 Opinion Withdrawn Following Motion for Rehearing 
The DCA again considered this case, after a prior remand. In 2002, claimant was a 29 year old corrections officer. During off-duty non-work related sports training, he experienced light headedness, and subsequently underwent a cardiac catheterization on 6/26/02. The doctor intentionally induced arrhythmias, and the claimant alleged a WC claim as of that date. At a hearing in 2016, the JCC awarded compensability as to that injury, finding that although the atrial tachycardia was congenital, it could have been triggered by occupational stress under the presumption statute. The E/C appealed, and the DCA remanded for findings related to the underlying condition and resulting diagnoses. In this underlying Order, the JCC clarified that the diagnosis of atrial tachycardia degenerated into atrial fibrillation and job stress could have been a trigger. The DCA analyzed the E/C’s burden to overcome the presumption, which is to demonstrate the accident arose from a non-work cause or causes. The law also states that the condition may be compensable if a work-related cause triggers the ultimate diagnosed injury; or if an unknown cause triggers the injury. However, the trigger theory analysis is two-tiered and requires the E/C to overcome § 112.18(1)(a)’s presumption for both the underlying condition (the first tier) and, if applicable, the condition’s triggering event (the second tier). The DCA reversed and remanded because the medical evidence showed that Claimant’s peak exercise workouts in ’02 triggered the degeneration of his congenital heart condition into atrial fibrillation, and this evidence wasn’t evaluated as a non-occupational cause that would overcome § 112.18(1)(a)’s presumption. They stated this diagnostic/intentional stress during the test causing arrhythmia is a non-work related cause. They affirmed the denial of the August 28, 2014 workplace injury as asserted in the cross-appeal.
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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