Wednesday, August 19, 2015


Suarez v. Steward Enterprises/Travelers, (Fla. 1st DCA 5/12/15)
Applicability of Witness Fee Cap to EMAs
Expert medical Advisors (EMAs) are being seen with increasing frequency in the workers’ compensation arena. The legislature has limited the fees the EMA can charge for their evaluation and also has limited how much expert witnesses can charge for depositions. However, some EMAs seek to charge beyond those amount for a deposition. Here, the DCA granted the claimant’s Petition for Certiorari and quashed the JCC’s Order denying the claimant’s request to limit the EMA’s deposition fee to $200 per hour. The EMA demanded a deposition fee of $750 per hour and required a deposit of $750 prior to providing testimony. The JCC declined to determine the fee, concluding that giving a deposition is not a service contemplated by either the statute or the rule governing EMAs. Further, the JCC concluded that because "the EMA is not a mere health care provider, but an expert," the fee limitation in section 440.13(10) did not apply. On appeal, the court that the irreparable harm element of certiorari was met in this situation because if the claimant foregoes the deposition because of the impermissible cost, the claimant will be without means to either contest the EMA’s report below, or demonstrate harmful error on appeal. Turning to the question of whether the JCC departed from the essential requirements of law, the court noted that a JCC has jurisdiction to resolve issues regarding discovery, along with disputes regarding statutorily-regulated litigation charges pertaining thereto. The court further noted that section 440.13(10), provides that "[a]ny health care provider who gives a deposition shall be allowed a witness fee. The amount charged by the witness may not exceed $200 per hour." When read as a whole, the statutory limits apply to EMAs as they are health care providers as defined in Chapter 440. This decision furthers the overall intent of Chapter 440 that an efficient and self-executing system be created which is not an economic or administrative burden. Saddling either parties with exorbitant fees for depositions not only creates an economic burden, but it also would create a chilling effect on the ability of claimants with limited means to pay for the right of taking the EMA deposition.
Broadspire/Crawford & Tampa and Stone Container Corp. v. Jones, (Fla. 1st DCA 5/8/2015)
Effective Date of Causation Standard
Claimant sustained injuries in a workplace explosion in 1981 and received authorized medical care for orthopedic injuries and psychological care for PTSD since that time. In October of 2013, the claimant sought payment of attendant care to his wife, which the E/C denied.

The first issue was whether the JCC’s decision to apply the causation standard in effect at the time of Mr. Jones’s 1981 workplace injury, rather than the standard in section 440.09, Florida Statutes (2013), was error. It was not. The JCC rejected the E/C’s argument that a selected portion of current version of section 440.09, relating to the "burden of proof" for causation, applies as a procedural change. Not all changes in the burden of proof are retroactive. See, e.g., S. Bakeries v. Cooper, 659 So. 2d 339, 340 (Fla. 1st DCA 1995) (holding statutory amendment restricting admissible medical evidence has no retroactive application because it depends on statutory processes relating to expert medical advisors, authorized treating providers, and independent medical examiners which altered parties’ substantive rights). The substantive rights of the parties are fixed at the time of the accident and injury. Here, court concluded that the amendment to section 440.09 in 1994 affected Mr. Jones’s substantive rights by changing an element of his claim with the additional requirement that he prove that his compensable injury is the "major contributing cause" of any other resulting injury; thus, under the current standard, if applied to his 1981 accident, Mr. Jones would be potentially precluded from establishing causation for what was previously a compensable condition under the law in effect at the time of his workplace injury. The JCC, therefore, properly declined to apply the current version of section 440.09 as to the causation of Mr. Jones’s injuries.

Babahmetovic v. Scan Design Florida Inc. / Zenith Insurance, (Fla. 1st DCA 5/1/2015)
(Mike Winer's case)
120 day Rule/One Time Change in Physician
The DCA reversed the JCC’s denial of a one time change based upon the E/C’s 120 day defense. The claimant lifted a heavy box at work on October 9, 2013 and injured his low back. The E/C sent him to Fast Track Urgent Care who indicated that the "injury/illness for which treatment is sought" was "work-related." Fast Track next referred Claimant to Dr. Delgado, who first saw Claimant on November 15, 2013. Dr. Delgado concluded Claimant had both a resolving lumbar muscle sprain and, as a condition preexisting the date of the work accident, degenerative disk disease. Dr. Delgado checked the same "work-related" boxes on his DWC-25. However, later the same day, the doctor sent a letter to the E/C indicating the cause "regarding the lumbar spine" was 60% the preexisting condition, and only 40% the "workplace injury." Twelve days later, the E/C issued a denial of compensability asserting the accident was not the MCC of the need for treatment. The claimant then requested a one time change which the E/C denied.

On appeal, the court held that while there must first be a compensable accident and injury before an employee is entitled to any benefit allowed in Chapter 440, the JCC erred in not recognizing the existence of a compensable injury in this case. Causation, in workers' compensation, is established by MCC, and MCC is a concept that can potentially apply at two different stages of a determination of entitlement to benefits. First, the work performed must be the MCC of a compensable injury. Second, where there is a preexisting condition, the compensable injury must be the MCC of the need for treatment. Only the first of these MCC analyses factors into a determination of compensability of the original injury. Here, the JCC's conflated the existence and cause of the injury — compensability — with the existence and cause of the need for treatment. On the facts in this case, it was not disputed that the sprain otherwise met the requirements of compensability (it occurred by accident, it resulted in injury (the sprain), it arose out of and in the course and the scope of employment). Given these facts, the JCC should not have applied an MCC analysis to determine the existence of a compensable injury, because there is no evidence (nor allegation) that the sprain was caused by degenerative disk disease or anything other than work. Because the claimant suffered a compensable injury and received treatment therefor, he is entitled to a one-time change in treating physician as "an absolute right" because he made a written request for such during the course of treatment.

The E/C also denied compensability in reliance on the 120-day rule, but did not provide written notice to Claimant of its intention to rely on that rule as § 440.20(4), Fla. Stat. (2013) requires. ("Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days.") An employer/carrier must "elect" to rely on the rule, as both the rule itself and case law indicate. See §440.192(8), Fla. Stat. (2013) ("A carrier that does not deny compensability in accordance with s. 440.20(4) is deemed to have accepted the employee's injuries as compensable. . . ."); Bynum Transp. v. Snyder, 765 So. 2d 752, 754 (Fla. 1st DCA 2000) ("When an E/C becomes aware that a claimant had medical needs, it should either pay for them, pay and investigate under section 440.20(4), or deny compensability."). The court held that an E/C who pays yet does not provide written notice "[u]pon commencement of payment" cannot avail itself of the 120-day rule to deny compensability, because it has elected to "pay" rather than to "pay and investigate."

This decision makes perfect sense. To hold otherwise would result in treating this notice requirement as optional, so that E/Cs are in the same exact position if they provide notice as if they fail to do so. This renders the requirement of "notice to the employee" as a meaningless surplusage, sending a message to carriers across the state that they have no obligation at all to "provide notice to the employee that it have elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days the letter." If possible, every word and provision of a statute should be given effect, and none should be treated as mere surplusage. See State v. Goode, 830 So.2d 817 (Fla. 2002)(A basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.")

Furthermore, there is precedent for the court imposing a similar penalty in similar situations in cases where the E/C fails in its duties to notify the claimant. The penalty of the E/C being precluded from raising a 120 day denial for failure to send an information letter to the claimant is akin to the penalty imposed on an E/C for failing send the claimant the notice provisions of section 440.185, Fla. Stat. See Southern Bell v. MacDonald, 671 So.2d 207 (Fla. 1st DCA 1996)(holding that the statute of limitations did not bar claim for benefits where E/C failed to advise claimant of her rights under section 440.185(2)(e), Florida Statutes (1985)). Thus, the holding of the court is a mere extension of sound legal principles to which the court has long adhered. **The E/C filed a Motion for Rehearing and Rehearing en banc which remains pending as of the time of this article.

Cuenca v. Nova Southeastern Univ./York Risk, (Fla. 1st DCA 4/9/14)
Attorney Fees/Medical Only Fees
It is the complaint of many a claimant attorney that when he enters the courtroom dealing with a fee issue, there are two opponents: counsel for the E/C and the JCC himself. Many JCCs have made it their mission to ignore the stipulations of the parties and go beyond to investigate the propriety of agreed fees rather than allowing the parties to resolve the fee issues through an agreement and put an end to the dispute. Such was the scenario in this case where the JCC refused to enter an order approving a stipulated $1500 medical only fee. The claimant filed a PFB on 12/5/13 against Nova and PMA seeking medical benefits. The E/SA never sought to dismiss this PFB. A second PFB filed on 2/14/14 named York and PMA as carrier and sought the same benefits. The parties later attended mediation and agreed to settle the claim for a lump sum and the E/SA separately agreed to pay an additional $1500 medical only fee and $275 in costs. JCC Lazarra approved the fee on the settlement, but denied the side fee and costs. The JCC conducted his own review of the DOAH docket and to his review, the stipulation showed "presumably" that the failure to respond to the first PFB was because of the wrong SA being listed, and thus, despite the stipulation of the parties to the contrary, the JCC concluded that the second response was timely.

The claimant sought rehearing and listed the specifics to support entitlement to the medical only fee. That too was denied. The DCA reversed the JCC finding the record did not support the his presumptions and held that entitlement to the fee and costs existed. Additionally, the court noted that for the JCC to properly take judicial notice of the records on the docket, he "should provide advance notice of the intention to do so and a reasonable opportunity to object." Where else but in the bizarre world of workers’ compensation does a judge refuse to accept the stipulations of the parties that a fee is owed and conduct his own investigation into the matter and to make matters worse, fail to even advise the parties that he is going to do so?

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