Case Law Update November 2019

This Update contains summaries of all relevant Appellate decisions usually for the preceding week, with comments on how a particular decision affects you. In addition, we review daily the Merit Orders posted on the DOAH website. This Update contains summaries and links to relevant JCC decisions for the past week or so. Please feel free to contact Rogers Turner (rturner@hrmcw.com) with questions or comments on any of the listed cases. This week’s case authors are Heather Bondhus and Evan Heffner.

HRMCW Cases

Crispin v. Orlando Rehab Group/Gallagher Bassett (Fla.1st DCA 11/20/2019) Post Age 70 PTD/Five year limit on Benefits
Bill Rogner/Scott Miller
The DCA affirmed the JCC’s finding that the five year limit on PTD benefits in F.S.s. 440.15(1)(b) (for claimants whose date of accident occurs on or after their 70th birthday), is a calendar period, and not a bank. Claimant’s injury occurred at age 73. The E/C accepted the claimant as PTD on 5/26/12, and ceased PTD payments exactly five years later on 5/26/17. The claimant argued that the E/C should have reclassified her benefits as TTD during her surgery and subsequent recovery from 10/22/15 to 1/4/15 , thus entitling her to an additional 10 ½ weeks of PTD after 5/26/17. The DCA affirmed the JCC’s rejection of the claimant’s theory of a “bank” of PTD benefits, and found the plain language of the statute compelled such a finding.


JCC Weiss (Ft. Myers) (Jonathan Cooley) – Granted E/C’s Motion for Summary Final Order. Claimant requested payment of medical bills, to which the Employer/Carrier responded that the bills would be paid per fee schedule when submitted on proper form. The Employer/Carrier argued that the JCC lacks jurisdiction as the treatment was authorized. The JCC held that once the Carrier accepted responsibility for payment of the bills, any further dispute is within the exclusive jurisdiction of the Agency for Health Care Administration.
Click Here to View Order


JCC Massey (Tampa)(Gregory Raub) – Denied medical and indemnity benefits. The claimant presented no medical evidence or testimony that she was entitled to any of the requested medical or indemnity benefits.
Click Here to View Order

DCA Cases

Premier Community Healthcare Group/AmTrust v. River (Fla.1st DCA 11/13/19) Major Contributing Cause 
Two of the three DCA judges affirmed the JCC’s decision per curiam. However, Judge Thomas wrote a lengthy dissent which accepted the E/C’s position the Order was not based on competent, substantial evidence. The JCC relied upon the opinions of Dr. Tolli. According to the dissent, that doctor’s failure to address claimant’s pre-existing neck condition in his DWC-25s, coupled with two other doctors’ opinions that the work accident was not the MCC, was insufficient evidence upon which to award the requested medical benefits.

Olvera v. Hernandez Construction of SW Fl/US Admin. Claims (Fla.1st DCA 11/15/2019) Expert Medical Advisor Testimony/Maximum Medical Improvement 
The DCA reversed the JCC’s denial of TPD benefits. The DCA held the JCC’s interpretation of the EMA testimony was not supported by competent, substantial evidence (CSE), and the ruling ignored the presumptively correct EMA opinion that the claimant was not at MMI because he needed surgery. The E/C authorized Dr. Leach to treat the 5/21/15 left arm fracture. Dr. Leach performed two surgeries. The record noted the claimant continued to have numbness and pain, assigned MMI on 5/31/16 with permanent restrictions, but no recommended further care. In 2018 the claimant’s IME recommended further testing, stated he was not at MMI and could require an additional surgery. EMA Dr. Klein was asked to address conflicts in medical opinions regarding MMI and whether and what additional potential treatment and testing might be required. Dr. Klein’s report recommended diagnostics and additional surgery, and stated the claimant was not at MMI. In deposition, he confirmed those opinions, noting the now completed tests confirmed the surgical recommendation. On the E/C’s cross examination, Dr. Klein stated the claimant would have been at MMI in 5/16 “if he did not have surgery”. At hearing, the claimant said he wanted surgery. The JCC found the EMA’s opinion was that the claimant remained at MMI “unless or until he had surgery”. The JCC also noted the EMA’s opinion was not clear and unequivocal, and that he gave two opinions on MMI, each dependent on whether or not the claimant had surgery. The DCA reversed, finding no CSE to support that the EMA gave two MMI opinions about the claimant’s current status. They noted the EMA’s answer to the E/C attorney’s hypothetical was unsupported by underlying facts and was based upon mere speculation. The DCA held no clear and convincing evidence to the contrary existed that the claimant was not at MMI.

Phillips v. Tyson, et al, (Fla. 1st DCA 11/20/19) Statute of Limitations/Payment of Supplemental Benefits by State 
Claimant’s injury occurred over 40 years ago. He was administratively accepted as PTD in 1986. In 1987, the State of Florida’s Division of WC began paying the claimant supplemental benefits, and his PTD benefits stopped. In 2018, the claimant filed Petitions seeking medical and indemnity benefits. The JCC agreed with the E/C that the payment of supplemental benefits by the state were not compensation paid by the employer, and thus those payments did not toll the statute of limitations. The DCA reversed the JCC’s ruling. Under the version of the statute applicable for this date of accident, the statute can be tolled by either (1) payment of compensation or (2) furnishing of remedial care by the employer. The DCA held that compensation need not be furnished “by the employer” and the claimant’s receipt of compensation, albeit from the state versus the employer, tolled the SOL.

Please note that the DCA Opinions and Merit Orders contained in this newsletter are non-final until 30 days after their rendition. Until that time, they are subject to amendment, vacation, or other action which may remove or alter some or all of the decision. Please contact any HRMCW attorney if you have a question as to the finality and applicability of an Opinion or Order. We endeavor to include any amendments or alterations to Opinions or Orders that may occur at a later date