TOP 10 DEVELOPMENTS IN FLORIDA WORKERS’ COMPENSATION IN 2021
1. Prior final compensation order did not predict that permanent total disability benefits would flow from the award as the claimant intended, but did not, undergo a surgery to alleviate the work-related injury.
PraXair, Inc. and Broadspire Services, Inc. v. Celentano, First District Court of Appeals, No. 1D20-927, Decision date Nov. 16, 2020
The claimant argued that the PTD benefits flowed from her attorney successfully defeating a prior misrepresentation defense to temporary disability benefits. The First District Court of Appeals agreed with the judge and found that the prior Final Compensation Order did not predict that PTD benefits would flow from the award and, therefore, there was no entitlement to penalties, interest, fees or costs.
2. No competent or substantial evidence to support that employer/carrier only accepted the aggravation; thus, they waived the ability to deny compensability. Hence, the apportionment defense also fails, and full permanent impairment benefits are owed.
Joe Sullivan v. NuC02, LLC/Broadspire, First District Court of Appeals, No. 1D19-3275, Decision date Dec. 9, 2020
The First District Court of Appeals reversed the judge’s finding that the employer/carrier had only accepted an aggravation, which meant that they had waived the ability to deny compensability and assert an apportionment defense. The court further held that the employer/carrier acquiesced to 18% PIR by listing same on the Pre-Trial Stipulation. Also, the employer/carrier’s unilateral de-authorization of the treating provider, due to opinion that no further care was related, did not bar the judge from awarding continued care when the causation defense failed.
3. The court finds that the judge erred by not ruling based on the notice that should have been provided within 52 weeks of the qualifying event versus when the symptoms manifested.
Palm Beach County Fire Rescue and Preferred Governmental Claims Solutions v. Andrew Wilkes, First District Court of Appeals, No. 20-1615, Decision date Dec. 14, 2020
The Judge of Compensation Claims held that a first responder’s PTSD (due to a drowning event) was compensable when analyzed from the date of its manifestation versus the date of the event. On appeal, the First District Court of Appeals held that the judge erred by not ruling based on the notice that should have been provided within 52 weeks of the qualifying event, rather than when the symptoms manifested. The case was reversed and denied due to untimely notice.
4. Cancellation of the workers’ compensation insurance policy was not valid because a condition precedent had not been met. Promissory estoppel applied because the employer relied on the certificate of insurance.
Scott v. Jones Construction Co. v. Central Florida Siding Pros, NorGuard Ins. Co., Southeast Personnel Leasing, Inc. Lion Insurance Co., Packard Claims, Nobles American Services, LLC, First District Court of Appeals, No. 1D20–689, Decision date Mar. 16, 2021
The First District Court of Appeals rejected the arguments contending that the workers’ compensation insurance policy cancellation was not valid because a condition precedent had not been met and that promissory estoppel applied because Jones, the general contractor, had relied on the certificate of insurance produced by Central Florida Siding Pros.
5. Applying the 1989 version of the workers’ compensation statute of limitations law for the right to remedial care relating to insertion or attachment of a prosthetic device.
DECA Manufacturing and Southern Owners Ins./Auto-owners v. Faye O. Beckett, First District Court of Appeals, No. 19-3441, Decision date Apr. 8, 2021
The First District Court of Appeals held that, although continued use of a prosthetic would toll the current version of the statute of limitations, it does not toll the 1989 version given its inapplicability to remedial treatment “relating to” the prosthesis. Here the claimant had screws and rods in her cervical spine but requested pain management and a mechanical bed. The First District Court of Appeals pointed out that the fact that she may have a prosthetic device is not, standing alone, sufficient to prevent the statute of limitation from accruing. The claimant failed to prove that either request had anything to do with the screws and rod in her spine. They also agreed with the lower court judge that mistaken payments do not toll the statute of limitations.
6. Medical marijuana still illegal and not reimbursable under Florida’s workers’ compensation statute.
Patrick Shawn Jones v. Grace Healthcare, First District Court of Appeals, No. 19-1684, Decision date Jun. 30, 2021
The First District Court of Appeals noted that under Florida law, marijuana is not reimbursable under the workers’ compensation statute. Moreover, federal law—which they pointed out they are “oath-bound” to follow—characterizes marijuana as having no accepted medical use and makes all possession and use of it illegal throughout the United States. They went on to say that a referral to a physician authorized to prescribe medical marijuana, including even just an evaluation of whether the employee is a good candidate for marijuana treatment, could not be, under any circumstances, “medically necessary” as defined and used in section 440.13, Florida Statutes.
7. Since unemployment compensation is primary, therefore, it is not technically an “offset” to temporary partial disability benefits.
N. Hannoush Jewelers, Inc. and Massachusetts Bay Ins. c/o Hanover Ins. Group v. Patrick Bly, First District Court of Appeals, No. 20-2439, Decision date Jun. 30, 2021
The First District Court of Appeals only wrote to address the effect of the claimant’s receipt of unemployment compensation benefits on the amount of temporary partial disability benefits awarded. The employer/carrier then asserted that the claimant’s unemployment compensation benefits had to be offset and asked the judge to credit same against any TPD due. The claimant replied that any offset argument would be an affirmative defense and was not pled in the pre-trial stipulation; therefore, the employer/carrier had waived that defense. The court held that unemployment compensation is primary and, therefore, not technically an “offset” to TPD benefits.
8. Because claimant’s mental injury manifested itself within six months of reaching physical maximum medical improvement and she was not receiving impairment benefits for the physical injury after reaching that point, the statutory cap in Section 440.093(3) does not apply.
Le’tavia Jones v. State of Florida, Department of Corrections/Division of Risk Management, First District Court of Appeals, No. 20-1741, Decision date Jul. 29, 2021
At issue in this case was whether the claimant was entitled to more than six months of temporary benefits while treating for psychiatric injury. The First District Court of Appeals reversed the judge who denied indemnity past six calendar months from the date of physical maximum medical improvement. They held that the six-month limit did not apply in this case because the claimant had not received any impairment benefits. Pointing to W.G. Roe & Sons v. Razo-Guevara, 999 So.2d 708 (Fla. 1st DCA 2008), which held the statutory cap in section 440.093(3) does not apply to a claimant not being paid impairment benefits.
9. Judge erred in not considering employer/carrier’s request for expert medical adviser once claimant’s one-time change choice of physician was decreed an authorized treating provider, thereby creating a conflict with the prior physician.
ABM Industries, Inc. and ACE/ESIS v. Maritza Valencia, First District Court of Appeals, No. 1D20-2027, Decision date Sep. 29, 2021
The Judge of Compensation Claims erred in not considering the employer/carrier’s request for an expert medical adviser (EMA) once the claimant’s one-time change choice of physician was rendered an authorized treating provider, thereby creating a conflict with the prior physician. The judge’s order was reversed with regard to the portion awarding indemnity and medical benefits and remanded for the appointment of an EMA and further proceedings.
10. In other news…
For those wondering what the impact of COVID-19 was on Florida workers’ compensation, from March 2020 to July 2021, there were 46,505 claims and $114 million in benefits paid.
Good news for 2022…
NCCI has proposed a 4.9% workers’ compensation premium decreased, which if approved would have an effective date of January 1, 2022. NCCI also proposed establishing a workers’ compensation insurance catastrophe fund that would provide for an assessment on employers’ premiums. The assessment would generate revenue to cover workers’ compensation costs in the event of a catastrophic event (like another pandemic). Overall, Florida’s workers’ compensation is performing well as a result of better risk management practices and safer workplaces.
What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2021 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.