October 2015 Case Law Review

October_HeaderESAD BABAHMETOVIC V. SCAN DESIGN FLORIDA, INC./ZENITH INSURANCE COMPANY

Facts: Appeal of the JCC’s Order denying Claimant a 1-time change in authorized treating provider. Claimant injured his back lifting a box at work and the E/C sent him to Fast Track Urgent Care for treatment. In the executed DWC-25 Form, Fast Track responded that the injury/illness was work-related. Claimant was then referred to a specialist, Dr. Delgado, who provided the opinion that the condition was work-related in the DWC-25 Form, but on the same day, also sent a letter to the E/C advising that the MCC of the need for treatment is a pre-existing condition. The E/C then issued a Notice of Denial asserting the MCC defense. Claimant subsequently requested for a 1-time change of physician and the E/C denied the request as it was asserted that the industrial accident is not the MCC of the need for treatment. At Final Hearing, the JCC was asked to determine whether the accident was not only the MCC of Claimant’s need for treatment, but also the injury— JCC was essentially asked to address whether Claimant can receive a 1-time change of physician when there was never a compensable injury. In denying Claimant’s request for the 1-time change of physician, JCC determined that the accident was not the MCC of the injury nor the MCC of Claimant’s need for treatment.

Holding: The Court held that the JCC erred in not recognizing the existence of a compensable injury in this case. JCC found the sprain (the workplace injury) and the pre-existing condition (degenerative disk disease) combined to produce the need for treatment; however, such facts do not preclude compensability— they merely implicate the possible availability of particular medical and indemnity benefits. It was not disputed that Claimant’s sprain arose out of the course and scope of his employment with the Employer; as a result, the JCC should not have applied a MCC analysis to determine the existence of a compensable injury because there is no evidence nor allegation that the sprain was caused by the pre-existing condition or anything other than work. The Court held that because Claimant suffered a compensable injury and received treatment as a result, he is entitled to a 1-time change in treating physician, which is an absolute right if he made a written request for such during the course of treatment. The Court distinguished this holding from its decision in Falcon Farms v. Espinoza, 79 So.3d 945 (Fla. 1st DCA 2012), where it reversed the award of a 1-time change as in Falcon Farms, there was no work-related injury at all; rather, only a finding that the injured worker presented no persuasive evidence that an injury arose out of their employment.

In a Concurring Opinion, Judge Benton agreed with the Court’s decision on the grounds that the Notice of Denial contesting the compensability of the injury was issued too late as the E/C did not issue a 120 day pay and investigate letter to Claimant upon receiving the claim. Per Judge Benton, the E/C accepted the injury as compensable without reservation and the E/C is thusly prohibited from later contesting the compensability of the accident.

Take Away: (1)In order to deny a request for a 1-time change of physician, there must be a basis to support the assertion that there was not a compensable injury/accident occurring within the course and scope of Claimant’s employment; and,

(2) In order to permit for the assertion of a denial of the compensability of an accident/injury after the initial investigation, it is imperative for a 120 day pay and investigate letter to be issued upon the receipt of a claim where grounds for denial are not clearly evident.

ROSA ESTELA RUBIO V. GYMBOREE CORPORATION AND GALLAGHER BASSETT SERVICES, INC.

Facts: Claimant’s Petition for Writ of Certiorari was filed seeking to quash the JCC’s Order appointing an Expert Medical Advisor to resolve a dispute in medical opinions, where the Motion for Appointment of the EMA was made only 8 days before the scheduled Final Hearing. Claimant challenges the appointment of the EMA for being untimely and in violation of the 210-day statutory deadline for a Final Hearing to be conducted.

Holding: The Court denied the Petition for Writ of Certiorari on its merits. There is no case interpreting the EMA provisions in Chapter 440, nor any statutory text preventing a JCC from appointing an EMA merely because a request is not made timely. Under the plain terms of F.S. 440.13(9)(c) and 440.25(4)(d), the JCC must appoint an EMA if a disagreement in medical opinions exist. Claimant failed to demonstrate that the JCC departed from the essential requirements of law by appointing an EMA in this case. The Court also rejected Claimant’s argument that the JCC’s appointment of an EMA violates the 210-day deadline for holding a Final Hearing as set by F.S. 440.25(4)(d) as the Order extending the hearing beyond the 210-day deadline was not timely challenged by Claimant nor is the statutory deadline for holding a Final Hearing inflexible or inviolable— the JCC may grant a continuance for good cause shown.

Take Away: While not recommended to wait until the very last minute to request for the appointment of an EMA, if there is a material dispute in medical opinions from authorized treating providers, the JCC must appoint an EMA to resolve the controversy if requested by a party.

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