Case Law Update November 2020
Noland v. City of Deerfield Beach/Johns Eastern, __So.3d___ (Fla. 1st DCA 11/6/2020)
MCC/Stipulations/Waiver The DCA affirmed the JCC’s finding that the E/C preserved their MCC defense to providing orthopedic care following claimant’s 2018, private health insurance funded knee replacement. After the original 1997 timely noticed workplace left knee injury, the claimant obtained two left knee surgeries under his private insurance, and had no further treatment after 2001. He returned to his firefighter position, ran 2.5 miles a day and played competitive softball. Nearing retirement in 2018, he underwent bilateral knee replacements, again under his private insurance. Notably, counsel for the claimant wrote the private insurer that the E/C had provided no treatment for either knee, at the same time they filed a PFB seeking ongoing treatment for the left knee. The JCC rejected the claimant’s argument that because the E/C Pre-Trial Stipulation stated the “left knee” was the specific body part at issue, and because they stated they authorized a doctor to treat the left knee, they were bound by this, and had waived MCC defenses as to the left knee “condition”. The JCC found the E/C maintained MCC defenses as to pre-existing conditions in the Pre-Trial and all stages of the litigation. Further the JCC found there was no evidence that any left knee care had been provided, finding the E/C had timely asserted a denial within the 120 days. (The claimant abandoned the 120 argument on appeal). The DCA rejected claimant’s argument that Meehan v. Orange County Data and Appraisals (2019) controlled, noting that in that case, the E/C entered into a broad, negotiated stipulation, with no causation defense listed. Here, the mere listing of “left knee” as the body part related to the “accident” was insufficient to act as an acceptance of the left knee “condition”. Rather, they found the case more analogous to the properly asserted MCC defense in Teco Energy Inc. v. Williams (2017). . The court also noted contrary to the claimant’s assertion, Jackson v. Merit Electric (2010) was inapplicable, as there the E/C stipulated to compensability and agreed to and provided treatment. They rejected the claimant’s “superficial” comparison of this Pre-Trial Stipulation listing specific defenses to the requested benefit, noting that context matters in determining the scope of any stipulation. Click here to view Opinion
Praxair Inc./Broadspire Svcs, Inc. v. Celentano, ___So.3d___(Fla. 1st DCA 11/16/2020)
Attorney Fees/Reasonably Predictable Flow of Benefits
A 2017 Merit Order denied the E/C’s misrepresentation defense, and awarded lumbar surgery, indemnity benefits and attorney fees and costs. Claimant did not undergo the awarded surgery. Five months after the Order, the claimant filed a new PFB seeking PTD benefits, which the E/C timely accepted. The claimant’s 2019 Amended Verified Fee Petition sought attorney fees and costs for all benefits, including PTD. The JCC issued a non-final Order denying fees and costs on PTD, and in a Final Order noted that the prior merit hearing where the E/C asserted misrepresentation dealt with the claimant who was not at MMI, and that permanent limitations and restrictions would not be ripe until MMI. The claimant argued the PTD benefits flowed from her attorney’s efforts to defeat the fraud defense at the prior Merit Hearing, citing to the 2011 Carillo case. The DCA disagreed, noting that PTD was not reasonably predictable following the Merit Hearing. They found the claimant’s PTD benefits were not the result of the attorney’s efforts in defeating the fraud defense. Click Here to View Order
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 HR LAW 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