Case Law Update August 2022
Updated 8-19-22
| Tiburcio v. Hillsborough County Sheriff’s Office/Commercial Risk, ___ So.3d___(Fla. 1st DCA 8/17/22) Section 112.18(1)(a) Presumption/Reverse Presumption The DCA reversed the JCC’s denial of compensability of First Responder heart disease. The JCC found that the heart disease was accidental and in the line of duty, but denied under subsection 112.18(1)(b)1.a’s “reverse presumption” (where the claimant departs in material fashion from his prescribed course of treatment). The DCA noted the reverse presumption requires the material departure from prescribed treatment requires the treatment be for the same condition for which compensability is sought. While initially seeking compensability of both heart disease and hypertension, at trial his claims were solely for heart disease. The E/C had the burden to show that (1) the claimant was diagnosed with heart disease before the alleged date of accident, (2) he materially departed from the prescribed treatment for the heart disease and (3) such departure significantly aggravated the heart disease causing disability, an increase in disability or an increase in the need for medical treatment. The DCA found that the E/C failed to sustain their burden where they presented evidence only of the claimant’s failure to follow a course of treatment and medications prescribed for his hypertension, high cholesterol, obesity and other conditions. Such treatments were for conditions which may have been risk factors for heart disease, but were not in fact, treatments for the claimed condition of heart disease. Click here to view Opinion Girardin v. AN Fort Myers Imports LLC/Auto Nation/Gallagher Bassett, ___ So.3d ___ (Fla. 1st DCA 8/10/22) Medical Benefits/Attendant Care/Prescription Requirement The DCA reversed and remanded the JCC’s denial of attendant care due to claimant’s failure to provide a sufficiently specific prescription. The claimant’s authorized doctor wrote a prescription for “Home Health Eval and attendant care 12 hours a day/7 days a week.” This was attached to the PFB, to which the E/C responded the care was authorized with details to follow under separate cover. The adjuster contacted the doctor upon receipt for more detail, but the doctor declined to provide specifics. Over the next five months the E/C had agencies conduct home visits, up almost to the merit hearing. The doctor declined in depo to further specify, but the E/C failed to provide him with any of the evaluations. The E/C argued the JCC couldn’t award the requested attendant care because the prescription failed to meet the specificity required by F.S. s. 440.13(2)(b)(1) (…The employer or carrier shall not be responsible for such care until the prescription is received by the employer and carrier, which shall specify the time periods for such care, the level of care required and the type of assistance required). The DCA found based upon the 2007 Overloop case, that an E/C must monitor the claimant’s injuries and provide benefits and cannot hide behind a willful wall of ignorance. They noted the E/C withheld their home evaluations from Dr. Wolff and went to trial arguing they had offered up to 12 hours of care, but denied an obligation to provide the care until they received a specific prescription. Click here to view Opinion |