Case Law Update May 2023
| Ortiz v. Winn-Dixie/Travelers/Sedgwick,___ So.3d___(Fla.1st DCA, 5/31/23) (Bill Rogner) Statute of Limitations The 1st DCA affirmed the JCC’s finding that the SOL had expired and that the claimant failed to present evidence that the statute had been tolled. The claimant originally injured her kidney in a compensable 2003 accident. She continued to receive authorized care thereafter. In 2015 her care was transferred to Dr. Young, who saw her on an authorized basis from 2015 through 2019. The carrier last paid for authorized treatment in March of 2019. In May of 2020, the carrier inquired with the doctor as to any recent visits. Although the claimant had seen the doctor several times in the interim, the visits were not authorized, and the notes stated only she was seen for a UT, and that she should be obtaining treatment for that under her private health insurance. The claimant presented no evidence that the visits were for the compensable kidney condition and the DCA affirmed the JCC’s finding that seeing a previously authorized doctor, without a causal connection to the compensable injury, is insufficient to toll the SOL. In dicta, the opinion discusses an interpretation of the two-years statute of limitations that is sure to elicit further discussion, as it appears to change and complicate the decades-old two-year/one-year SOL analysis. Click here to view Opinion Churchill v. DBI Services, LLC/Corvel, ___So.3d ___ (Fla. 1st DCA 5/31/2023) Attorney Fees/120 Day Rule/Discovery The claimant alleged an injury after a mixture of cleaning products erupted in her face on 11/1/20. After initially accepting the case, they paid for prescriptions and paid indemnity. The carrier sent a 120-day letter on 1/8/21, paid indemnity from 11/13/20 through 2/7/21 and filed a Notice of Denial on 2/24/21. The claimant argued the carrier failed to comply with the pay and investigate provisions in F.S. §440.192(8) and §440.20(4). The DCA determined that the carrier did not comply with the provisions, as they must send the 120-day letter to the claimant upon commencement of payment. The specific language is “. . . either at the time of making the payment or as soon thereafter as reasonably practicable.” The DCA found the 59 days in this case exceeded the required period, which appears contrary to prior precedent. Carriers should now send these letters out as soon as possible . The DCA reversed the JCC’s denial of attorney fees for benefits received by the claimant after the filing of the PFB and reversed the JCC’s denial of the claimant’s request to depose a corporate representative. The DCA noted that prior case law held that in Florida workers’ compensation cases, the Florida Rules of Civil Procedure set forth the procedure by which the deposition of a corporate representative of a party may be noticed, and it was error to rule that the Q Rules alone govern such discovery. Click here to view Opinion |