Case Law Update September 2021

Case Law Updates

Updated 9-30-21

Harman v. Merchant Transport/CCMSI,  (Fla. 1st DCA 9/15/21)
One-Time Change/Reasonable Distance/Right to Choose

The DCA affirmed the JCC’s decision to provide an alternate physician to claimant and to preserve the E/C’s right of selection under Fla. Stat. 440.13(2)(f). The claimant requested a one-time change in allergists from Dr. Koutsonikolis to Dr. Tuer. The E/C attempted to schedule an appointment with Dr. Tuer before learning the office no longer accepted “worker’s compensation” and subsequently scheduled an appointment with Dr. Mark, who practiced 46 miles away from the claimant. The claimant declined to attend the appointment because the distance was unreasonable, despite the E/C providing transportation to the claimant. At the final hearing, the JCC agreed with the claimant that the distance was unreasonable and allowed the E/C to authorize a different allergist closer to the claimant. On appeal of the JCC’s decision to allow the E/C to choose the new allergist, the Court found that the claimant failed to preserve their argument that E/C failed to timely authorize an alternate physician by not raising it at the final hearing and that the argument itself failed on the merits.  The Court found that the claimant never offered any evidence of an allergist closer to the claimant’s home who accepted workers’ compensation or provided the name of an alternate allergist that the E/C could have authorized, nor did they argue that the E/C’s authorization of Dr. Mark was untimely. As such, the Court affirmed the JCC’s award of an alternate physician of the E/C’s choosing.    Click here to view Opinion
Holcombe v. City of Naples/Johns Eastern,  (Fla. 1st DCA 9/15/21)
First Responder Presumption/Evidence of Hypertension

The DCA affirmed  the JCC’s denial of  compensability of hypertension evidenced in a pre-employment physical examination of the claimant. The claimant was hired as a law enforcement officer and self-reported a history of high blood pressure as part of a pre-employment physical examination. This hypertension was caused by a prior liver transplant and anti-rejection drugs. While the claimant’s secondary hypertension had resolved at the time of his employment, he was diagnosed with primary hypertension several years into his service. The claimant’s PFB asserted entitlement to benefits due to the presumption that his hypertension was occupationally caused. Both parties obtained IMEs to determine whether the claimant’s preexisting secondary hypertension and his newly diagnosed primary hypertension were the same condition for the purposes of compensability. On appeal, the Court found that the Legislature intended to use the broad terms of “tuberculosis, heart disease, or hypertension” without any restricting language in subsections F.S. s 112.18(1) and F.S. s. 943.(6), and therefore evidence of secondary hypertension may preclude the claimant’s use of the presumption in section 112.18 for essential hypertension. As such, the Court found that “hypertension is hypertension” and affirmed the order denying compensability.   Click here to view Opinion

ABM Industries, Inc./ACE/ESIS v. Valencia, ___So.3d___ (Fla. 1st DCA 9/28/21)
Expert Medical Advisors/Contingent Defenses/JCC Duty to Appoint EMA
The claimant requested a one-time change, albeit via a fax directly to the adjuster, despite a direction that all communications be sent through defense counsel. The E/C authorized Dr. Rosabal, although it was 13 days after the original fax. In the interim, the claimant saw Dr. Lazzarin, who recommended surgery and PT.  The E/C’s first argument was that Lazzarin was not authorized as they timely authorized Rosabal. The E/C’s contingent argument was that if Lazzarin were authorized, there was a conflict requiring an EMA.  The E/C made this contingent argument at every stage of the litigation. The JCC rejected the E/C’s argument that the authorization of Rosabal was timely, but then did not initially address the EMA issue. After the E/C’s Motion for Rehearing, she issued an amended Order stating there was no dispute when the request for EMA was made or at Final Hearing (as Lazzarin’s authorization came only in the Order) and thus an EMA dispute did not exist prior to or during the Merit hearing. The DCA deemed this both a flaw of logic and law. They found the E/C preserved this argument at every stage and held the JCC was required to address the EMA request in light of the conflicts. The DCA reversed the award of indemnity and medical benefits and remanded for appointment of an EMA.  Click here to view Opinion