Case Law Update May 2021
Updated 6-4-21
Zurich v. Samson, ___ So.3d___ (Fla. 2d DCA 5/28/21) Rule Nisi/Limits of Court Ordered Sanctions The claimant sought an orthopedic eval on 6/27/19. Despite the carrier responding to the PFB on 7/23/19 that they would set the eval up, the JCC subsequently entered a Final Order requiring Zurich to authorize and provide the orthopedic treatment on 8/22/19. The opinion states the claimant was “turned away” at two separate appointments, and on 10/28/19, the claimant filed a Rule Nisi in Circuit Court, asking that Zurich be found in civil contempt and that the court impose a compensatory disgorgement of profits of $3.75 million, a fine of $37,000 (one percent of the profits), or a stop-work order. At the November 5 hearing on Samson’s petition, Zurich asserted that it had already coordinated Samson’s treatment by scheduling an appointment on December 2. The circuit judge rejected the claimant’s proposed monetary penalties, but instead ruled that “the parties may be restored to their respective positions with a fine of $15,000” to be paid to Samson. The opinion analyzes the circuit courts’ role in enforcing JCC orders and concludes that although the court had jurisdiction and authority to award a monetary remedy, the amount of the award was not supported by the evidence. They reversed and remanded for further findings as to a “proper award.” Click here to view Opinion Mills v. FDLE/Div. of Risk Mgmt., ___So.3d___ (Fla. 1st DCA 5/3/21) First Responders/Time within which to bring a claim The Per Curiam Affirmance states only: See § 112.18(1)(b), Fla. Stat. (2018) (providing for an occupational causation presumption for any condition or impairment of health caused by heart disease or hypertension suffered by a law enforcement officer as defined in section 943.10, Florida Statutes); § 943.10(1), Fla. Stat. (2018) (defining “law enforcement officer” as a person employed full-time by a political subdivision of the state, who is “vested with authority to bear arms and make arrests,” and who is primarily responsible for “the prevention and detection of crime or the enforcement of the penal, criminal, traffic or highway laws of the state”). Click here to view Opinion Final Order Click here to view Order The JCC denied claimant’s Motion for Rehearing, stating: This cause is before me on the claimant’s motion seeking clarification or rehearing filed July 15, 2020 and the employer/carrier’s response and objection thereto filed July 20, 2020. Claimant’s argument is premised upon his interpretation of the language contained in Florida Statute §112.18(4). That language reads: “A law enforcement officer, correctional officer, or correctional probation officer is not entitled to the presumption provided in this section unless a claim for benefits is made prior to or within 180 days after leaving the employment of the employing agency.” Claimant equates a “claim for benefits” with a date of accident. I do not. While perhaps not clear in my Final Compensation Order, the unambiguous language of Florida Statute §112.18 (1) (a) when read in conjunction with the equally unambiguous language of Florida Statute §943.10 mandates the claimant must be an employee on the date his alleged cause of action occurs. Lonnie Mills was not an employee on that date, a fact not in dispute. As the parties have pointed out, there is no case law that interprets §112.18(4) in circumstances such as these but in my reading, the plain and unambiguous language of that statute permits the claimant to bring a claim or petition for benefits within 180 days of leaving his employment. It does not alter or amend the very clear language of §112.18(1)(a) and §943.10 requiring the claimant to be employed on the date his heart disease caused disability. Claimant’s motion for clarification or rehearing is denied. Deca Mfg. Co./Southern Owners Ins. v. Beckett, ___ So.3d___ (Fla. 1st DCA 4/8/21) Statute of Limitations/Medical Devices The JCC denied the E/C’s SOL defense under the 1989 version of the law which applied to claimant’s date of accident. The claimant ultimately had screws and rods inserted surgically in her cervical spine. The applicable version of the statute contained an exception to the SOL (since removed) which stated: “However, no statute of limitations shall apply to the right for remedial attention relating to the insertion or attachment of a prosthetic device to any part of the body.” Although the DCA found the JCC properly found the screws and rods were a prosthetic device, the DCA reversed as there was insufficient evidence to show the requested benefits (pain management and a replacement mechanical bed) related specifically to the prosthetics. The DCA also found the JCC’s ruling could not be affirmed on other possible grounds (payments made in error potentially tolling the SOL) as that issue was not cross-appealed, or that the applicable version of the statute did not provide for tolling with “continued use” of the prosthetic. A concurring opinion would have affirmed for different reasons. That opinion noted the claimant did not sufficiently plead or prove her reliance upon the prosthetic exemption to the SOL, which led to insufficient evidence at trial. The opinion cites to the 2018 Ring Power v. Murphy case, which found sufficient evidence for the JCC to determine similar spinal pins and screws had ceased to serve a purpose, and thus could not toll the SOL. 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