Jeffrey P. Gale, P.A. // Trial Memo on Florida’s Workers’ Compensation “120-Day Rule”

calendar-1192688-300x230This memo was written for an upcoming workers’ compensation trial. The key issue in the case is whether Florida’s “120-Day Rule” (F.S. 440.20(4)) will preclude the Employer/Carrier from denying the compensability of a number of claimant’s injuries and medical conditions. If the answer is Yes, the Claimant should be awarded Temporary Partial Disability Benefits (F.S. 440.15(4).

 

CLAIMANT’S TRIAL MEMORANDUM PURSUANT TO RULE 60Q-6.116(7)

      COMES NOW the Claimant, by and through his undersigned counsel, and files this, Claimant’s Trial Memorandum Pursuant to Rule 60Q-6.116(7):

POSTURE OF THE CASE

  1. Final Hearing is scheduled for November 30, 2020.
  2. The only claim to be heard at the Final Hearing is TPD from March 9, 2019 to April 21, 2020.
  3. E/C’s defenses[1] are:

All TPD due or owing. The claimant has reached overall MMI, with a 0% PIR, and no restrictions, three months following the date of accident per the opinion of E/C IME Dr. Fernandez.

Based on the opinions of Dr. Fernandez and the February 5, 2019 MRI report, the claimant has suffered an intervening trauma that has broken the causal chain. Thus, the MCC of the need of any future medical treatment or loss of earning is not the July 19, 2016 industrial accident.

  1. Claimant replied to E/C’s defenses as follows (ID102):

Contrary to E/C’s unsubstantiated assertion, the claimant has not “reached overall MMI, with a 0% PIR, and no restrictions”; (2) E/C’s IME doctor limited his MMI, PIR, and restrictions opinions to a Grade I ankle sprain. He failed to express opinions on these subjects with regard to the claimant’s many other compensable injuries, as determined by Kenneth Hodor, M.D., claimant’s authorized orthopedist, and for which E/C has been providing benefits since on or about March 26, 2019. Accordingly, this is the only compensable injury for which there can possibly be a difference of opinion between E/C’s IME doctor and Dr. Hodor, thus limiting the scope of the EMA’s opinions regarding MMI, PIR, and restrictions to the Grade I ankle sprain only; (3) By virtue of the “120-Day Rule”, E/C has waived any right it may have had to contest that claimant’s injuries, as determined by Kenneth Hodor, M.D., including those revealed by the February 5, 2019 right ankle MRI, arose out of, and occurred within the course and scope of the claimant’s employment. Therefore, E/C should be estopped from defending the claim for TPD by challenging the compensability of claimant’s injuries.

Neither legally nor factually has the claimant “suffered an intervening trauma that has broken the causal chain.” In actuality, E/C’s “intervening trauma” defense is a preexisting condition defense, albeit one without a factual basis, under § 440.09(1)(b), Fla. Stat.; (2) By virtue of the “120-Day Rule”, E/C has waived any right it may have had, whether based on the theory of “intervening trauma” or of a preexisting condition, to contest that claimant’s injuries, as determined by Kenneth Hodor, M.D., claimant’s authorized orthopedist, arose out of, and occurred within the course and scope of the claimant’s employment. Therefore, E/C should be estopped from defending the claim for TPD by challenging the compensability of claimant’s injuries; (3) E/C has interjected an issue – “the MCC of the need of any future medical treatment” – which has not, heretofore, been at issue, and is not presently at issue. E/C has not denied any medical care, therefore, claimant has not had the need to file a claim for authorization of medical care. As no such claim is presently ripe for adjudication, the Pretrial Stipulation does not include any claim for same. Claimant does not consent to trying this issue at the upcoming Merit Hearing.

FACTS

  1. The Accident. Claimant stepped into a hole with his right foot. He twisted his right ankle, lost his balance and fell onto his side. E/C accepted compensability of the workplace accident.
  2. E/C authorized these medical providers as primary care physicians:

Port of Miami Medical Clinic/Irwin M. Potash, M.D.

Ortho Assoc. of South Broward/Dr. Steven Steinlauf

Kenneth R. Hodor, M.D., P.A./Kenneth R. Hodor, M.D.

  1. Dr. Potash last saw the Claimant on August 2, 2016. Dr. Steinlauf saw the Claimant once, on September 7, 2018. He noted that the Claimant had an antalgic gait on the right. He administered an injection in the right ankle and provided the Claimant with an AFO brace and an ankle support brace. Dr. Hodor was authorized and has seen the Claimant a total of seven (7) times, from January 29, 2019 to April 29, 2020. He remains authorized. From the first appointment to the last, Dr. Hodor has opined that the Claimant has functional restrictions and is not at MMI as a result of injuries sustained in the industrial accident.
  2. On the first examination, Dr. Hodor found an increase in girth on the right foot as compared with the left, a right antalgic gait, and tenderness in the right foot that was not present in the left. Right ankle x-rays performed that day revealed areas with degenerative changes. Dr. Hodor reported to the carrier that “the work related injury is the major contributing cause of the onset of the current symptoms in the right lower extremity.” His DWC-25 diagnosis is: “719.07 R Post tibial tendinitis.” He felt that a trial of anti-inflammatories was reasonable and necessary. Transdermal gel was provided. He also prescribed a course of therapy to the right ankle. He ordered an “MRI of the right ankle to rule out a partial tear of the posterior tibial tendon and/or any evidence of loose bodies.” Restrictions of minimize repetitive climbing stairs and ladder and squatting over the right ankle were imposed.
  3. E/C authorized the MRI, pharmaceuticals, and physical therapy. The MRI was performed on February 5, 2019. The findings were reported as follows:

Tear of the anterior talofibular and anterior tibiofibular ligaments.

Sprain of the posterior talofibular and posterior tibiofibular ligaments.

Sprain with partial tear of the calcaneofibular and deltoid ligaments.

Bone marrow edema pattern suggesting bone bruise of the medial malleolus and adjacent medial aspect of the talus.

Peroneus brevis and longus tendinosis.

Distal posterior tibialis tendinosis.

Instrasubstance longitudinal partial tear and focal plantar tear of central slip of the plantar fascia.

Tibiotalar joint effusion with posterior superior capsule ganglion.

Tibiotalar joint marginal osteophytes, subchondral remodeling and cartilage thinning.

  1. In Claimant’s first follow up appointment, on March 26, 2019, Dr. Hodor read the MRI report and images. He reported the MRI images as demonstrating “multiple abnormalities including the following: 1) tear of the anterior talofibular ligament with reactive edema; 2) a high signal was noted within the posterior talofibular ligament consistent with a sprain; 3) tear of the anterior tibiofibular ligament with reactive edema; 4) sprain of the posterior tibiofibular ligament; 5) sprain with partial tear of the calcaneofibular ligament; 6) sprain with partial tear of the deltoid ligament and again adjacent reactive edema and bone marrow edema in the adjacent medial malleolus and adjacent talus. There was noted to be an intact spring and bifurcate ligament.” He also interpreted the MRI images as showing: “a high signal and thickening of the peroneus brevis and longus tendons of the distal to the lateral malleolus consistent with tendinosis. There was a prominent peroneal tubercle and a high signal evident with the distal insertional posterior tibial tendon at and proximal to its insertion at the navicular/medial cuneiform, again reflecting tendinosis.” Dr. Hodor reported that Clamant continued to demonstrate an antalgic gait on the right and “fullness or swelling about the right ankle compared with the left.” The same restrictions as before were maintained. His handwritten DWC-25 diagnoses is “Varus Arthritis R ankle; tears of multiple ligaments ATFL PTFL; tearing anterior tibio-fibular, sprain of posterior tip-fib lig, partial tear unable to decipher lig.”He prescribed physical therapy for Claimant’s “R Ankle/Foot” and pharmaceuticals. He indicated that the injuries were the major contributing cause for the treatment recommendations and functional limitations and restrictions. E/C authorized the prescriptions.[2]
  2. Hodor next saw the Claimant on May 7, 2019. In his typed report of this date, he informs E/C that Claimant “does have varus ankle arthritis which certainly preceded his injury but has been aggravated by it. He is going to continue with physical therapy and I will see him again in 6-8 weeks. There has been no change in his work status.” His DWC-25 diagnosis is: “719.07 R Post tibial tendinitis.” PT and pharmaceuticals are prescribed. Dr. Hodor advises E/C that the “Injury/Illness for which treatment is sought is work related. E/C authorizes everything.
  3. In the June 18, 2019 appointment, Dr. Hodor advises the Claimant to avoid “any impact type activities” and to use his ASO brace. He again informs E/C that the reason for the medical treatment is work related. His DWC-25 diagnosis is: “R 719.07 Posterior tibial tendinitis R.”
  4. In the next appointment, on August 20, 2019, Dr. Hodor elicited tenderness and detected soft tissue fullness. He decided to write a prescription for a Vector ankle/foot orthotic brace “to see whether that may give him some additional support.” The handwritten DWC-25 diagnosis, which I am unable to decipher in full, includes at least two ligament tears. E/C authorized the brace. Claimant’s work restrictions remain the same and he is still not at MMI.
  5. On February 19, 2020, now more than one year after his first appointment with Dr. Hodor, Claimant’s examination continued to “reveal evidence of fullness posteromedially,” tenderness, and “restricted hindfoot mobility.” Dr. Hodor reminds E/C of his previous diagnosis of “tenosynovitis of the posterior tibial tendon on the right superimposed on his varus osteoarthritis of the right ankle,” and notes the ligament tearing demonstrated in the February 5, 2019 MRI. His DWC-25 diagnosis is: “R Ankle Synovitis; R Ankle Varus Ankle arthritis.” Claimant’s medications are renewed. Dr. Hodor indicates that the need for the medical treatment is work related. Claimant’s work restrictions remain the same and he is still not at MMI.
  6. Dr. Hodor last examined the Claimant on April 29, 2020. X-rays were performed. In his typed report to E/C, Dr. Hodor writes: “As noted, his prior MRI showed multiple ligament injuries.” Ongoing therapy is prescribed to his ankle and it is recommended that Claimant be fitted for a “custom device for his shoe once we have to order this and get him fitted when the pandemic allows.”
  7. Dr. Hodor was deposed on April 20, 2020. This is the first time anyone acting on E/C’s behalf asked Dr. Hodor questions about the case. In Dr. Hodor’s opinion, the February 5, 2019 MRI demonstrates that the ligaments supporting both sides of the right ankle, the medial or inner side of the ankle and the lateral or outer side of the ankle, were torn and stretched in the accident, resulting in “a disbalance of muscular tendinous forces in the ankle.” He described this as “an acute injury superimposed on pre-existing degenerative changes.” In his words, “[T]here [are] a lot of interacting pathologies going on in … this patient,” including “a muscle and bone imbalance situation” and reactive edema. He went on to say that the “torn ligaments aren’t going to resolve, they’re scarred out.” Dr. Hodor also opined that the accident has caused the underlying Varus Arthritis to progress more rapidly. Finally, Dr. Hodor explained that if conservative care, consisting of physical therapy, anti-inflammatories, and a custom orthotic fail to achieve satisfactory results, surgery in the form of “an arthrodesis of the foot and ankle or a triple arthrodesis, which is a big operation,” might be indicated. On a cross examination question from E/C’s attorney, Dr. Hodor answered that if surgery has to be performed, “It’ll be greater than 51% related to the injuries he sustained.” As of the date of the deposition, the Claimant was not at MMI and he continued to have functional restrictions.

DISCUSSION

  1. E/C owns all of the injuries and conditions diagnosed and treated by Dr. Hodor. E/C’s intervening trauma defense does not relieve it of this obligation. In North River Ins. Co. v Wuelling, 683 So. 2d 1090 (Fla. 1st DCA 1996) (en banc), the Court held that an E/C which pays compensation or intentionally provides benefits, but fails to deny compensability within the 120 days provision set forth in section 440.20(4), Florida Statutes, waives the right to contest that an injury “arose out of, and occurred within the course and scope of the claimant’s employment.” North River at 1092; see also s. 440.192(8), Fla. Stat. (2011) (“A carrier that does not deny compensability in accordance with s. 20(4) is deemed to have accepted the employee’s injuries as compensable, unless it can establish material facts relevant to the issue of compensability that could not have been discovered …”) E/C waited until August 19, 2020, to first deny the compensability of Dr. Hodor’s care.
  2. E/C wants the Court to believe that the only compensable injury which it is obligated to cover is an ankle sprain. This is the only injury Dr. Fernandez (E/C’s IME), Dr. Steinlauf[3], and Dr. Brill (EMA) attribute to the accident. In contrast, Dr. Hodor believes that the accident is the MCC of a much broader and more serious range of injuries and conditions as described above. Since Dr. Hodor has been authorized since January 29, 2019 without challenge, it is estopped by operation of law from now contesting the compensability of the injuries he diagnosed and treated. See North River at 1092; see also s. 440.192(8), Fla. Stat. (2011) (“A carrier that does not deny compensability in accordance with s.440.20(4) is deemed to have accepted the employee’s injuries as compensable….”)
  3. E/C claims that a sprained ankle is the only injury for which it authorized treatment before Dr. Hodor became Claimant’s primary care physician. Accordingly, it contends that this is the only injury for which it can ever be responsible. This position fails to recognize how the “120-Day Rule” works. Teco Energy, Inc. v. Williams, 234 So. 3d 816 (Fla. 1st DCA 2017) shows what E/C is missing:

The “120-Day Rule” is not necessarily rendered obsolete on the 121st day after the first report of accident and initial installment of benefits. The rule remains viable and is again triggered when, and if, a new condition or injury arises. Snyder, 765 So.2d at 754; Boyle v. JA Cummings, Inc., 212 So.3d 1060, 1062-63 (Fla. 1st DCA 2017) (holding JCC erred by excluding adjuster’s testimony concerning specific identity of condition accepted as compensable as it related to application of subsection 440.20(4) to preexisting condition); McIntosh v. CVS Pharmacy, 135 So.3d at 1157, 1159 (Fla. 1st DCA 2014) (“It was of no consequence that compensability [of the claimant’s PTSD] was sought long after the date of the accident; the relevant inquiry is whether the E/C denied compensability within 120 days of first providing treatment for the PTSD.”).

  1. In our case, this means that the “120-Day Rule” was again triggered, at the very latest, when E/C received Dr. Hodor’s March 26, 2019 records. In Kestel v. City of Cocoa, 840 So. 2d 1141 (Fla. 1st DCA 2003), the Court explained that the pay-and-investigate obligation of 440.20(4) also applies to uncertainty as to whether E/C is responsible for newly diagnosed injuries. Once triggered, our E/C had three options: pay, pay and investigate within 120 days, or deny. See Bynum Transp., Inc. v. Snyder,765 So.2d 752, 754 (Fla. 1st DCA 2000). E/C chose to furnish medical benefits and it continued to furnish those benefits without challenge until August 19, 2020, when it filed its Motion to Amend Pretrial Stipulation (ID76). This is at least eighteen (18) months/540 days from the new trigger date described in Teco. Since E/C failed to deny benefits within 120 days of the trigger date, everything Dr. Hodor diagnosed and has been treating since January 29, 2019 is deemed compensable. See, e.g., id.; Garner v. Clay County Dist. Sch. Bd., 798 So.2d 821 (Fla. 1st DCA 2001); Franklin v. Northwest Airlines, 778 So.2d 418 (Fla. 1st DCA 2001); Hunt v. Exxon Co. USA, 747 So.2d 966 (Fla. 1st DCA 1999).
  2. Teco and Kestel dispense with E/C’s defense that “an intervening trauma … has broken the causal chain.” E/C waited until August 19, 2020 to float this defense, more than eighteen (18) months after receiving the MRI report and Dr. Hodor’s initial diagnoses. E/C’s “intervening trauma” defense, set forth only in its Motion to Amend Pretrial Stipulation (ID76), reads as follow:

The claimant has suffered an intervening trauma that has broken the causal chain. Thus, the MCC of the need of any future medical treatment or loss of earnings is not the July 19, 2016 industrial accident.

The defense was developed from an opinion rendered by Dr. Fernandez, E/C’s IME. On June 15, 2020, Dr. Fernandez received 105 pages of medical records from E/C to review, including the MRI report and Dr. Hodor’s records. On July 22, 2020, he performed an IME  on Claimant. On August 8, 2020, he generated a report opining that Claimant sustained a Grade I ankle sprain in the industrial accident and “the findings observed on the right ankle MRI performed on February 5, 2019 are not causally related to the index industrial accident.” In deposition, on August 20, 2020, Dr. Fernandez explained how he came to the conclusion regarding the MRI findings. In his view, the findings “indicate to me a recent cause. Something recent…. [A]ll kind of point to some type of, you know, recent injuries.”

  1. E/C had every opportunity to investigate and deny compensability within 120 days of learning of the newly diagnosed conditions. E/C could have had the Claimant examined and the MRI report (or films) reviewed by an IME expert, just as it did with Fernandez more than 500 days later. It could have spoken to Dr. Hodor. Instead, it sat back and did nothing except furnish medical benefits to the Claimant for those conditions. This makes E/C’s delay in denying compensability inexcusable, putting the escape hatch provision of section 440.20(4), reproduced below, beyond its reach.[4]

“A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation as required under subsection (2) or s. 440.192(8) waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.” (Italics added.)

Once E/C blew past the 120 days, it does not matter how many doctors it later lines up to contest compensability. It is too late. Not even an EMA gets E/C off the hook. See Boyle v. JA Cummings, Inc., 212 So. 3d 1060 (2017) (if a Claimant’s injury is compensable by operation of law, E/C is estopped from relying on an expert medical advisor’s opinion that the Claimant’s condition preexisted the accident).

  1. Both on the law and its facts, Sierra v. Metropolitan Protective Services, 188 So. 3d 863 (Fla. 1st DCA 2015) is instructive to our case. It lays out the three-part analysis courts must undertake to apply the “120-Day Rule,” and it illustrates how injuries sustained from an intervening trauma become compensable by operation of law. Claimant was attacked by a knife-wielding assailant while working as a security guard. E/C accepted compensability of the accident. Within four months after the workplace event, the Claimant was involved in two non-work-related motor vehicle accidents. In the second of the two accidents, which involved the Claimant being struck by a car while riding a motor scooter, the Claimant sustained severe injuries to his right shoulder. Within a month of the scooter accident, Claimant filed a Petition for Benefits seeking psychiatric treatment. E/C authorized an appointment with a psychiatrist. Before attending the appointment, Claimant received unauthorized psychiatric treatment through Medicaid for complaints of anxiety and depression that he attributed to the workplace incident and the scooter accident. He was also deposed by E/C and revealed information about a preexisting history of psychiatric problems. Thereafter, the psychiatrist authorized by the carrier diagnosed PTSD, prescribed medication, and recommended psychotherapy. He completed a DWC-25, which indicated that the workplace event was the MCC of the PTSD. Claimant did not see this psychiatrist again for another nineteen (19) months, in an appointment which was arranged by E/C “for evaluation only.” The psychiatrist later testified that Claimant’s complaints were basically the same and that there was no change in diagnosis. A pretrial stipulation was filed a month later. Claimant asserted a claim for continued authorization of psychiatric care. E/C defended against the claim by asserting that Claimant’s two non-work-related MVAs “served to break the chain of causation between the original work accident of 4/1/12 and claimant’s current need for psychiatric treatment, per § 440.09.” In support of its defense, the E/C submitted deposition testimony from its independent medical examiner (IME) that 75% of the cause of Claimant’s need for psychiatric treatment is attributable to the second MVA resulting in the right shoulder injury and 25% is attributable to the workplace accident. At the merits hearing, Claimant argued that the E/C had waived the right to deny compensability of his PTSD by operation of subsection 440.20(4), the “120-Day Rule.” The JCC denied the claim based on E/C’s MCC defense. On appeal, the key point for the Court was whether Claimant’s psychiatric condition had become compensable by operation of law under 440.20(4).

On this point, the Court stated:

To prove entitlement to the requested psychiatric treatment, Claimant had the burden to show that the April 1, 2012, compensable workplace accident is the MCC for his PTSD. §§ 440.09, 440.093, Fla. Stat. (2011). But Claimant need not present such evidence if his PTSD is compensable by operation of law.

The Court set forth a three-part analysis Courts must undertake to determine if injuries or conditions are compensable by operation of law:

A correct analysis of the issue requires the following findings: (1) the date the E/C first provided benefits for a psychiatric injury; (2) the identity of the specific psychiatric injury for which benefits were provided; and (3) whether the E/C timely denied compensability of the psychiatric injury for which it provided benefits — i.e., within the 120-day period immediately following the initial provision of benefits for the specific psychiatric injury.

The Court explained that if Claimant’s PTSD was compensable by operation of law,      E/C’s MCC defense was waived and would fail as a matter of law:

Furthermore because the terms “break” and “no longer” indicate a change in status, a “break” in the causation chain cannot be proven here with evidence that the (allegedly) accepted compensable injury never met the MCC standard in the first instance. In other words, where the waiver of the right to deny compensability of an identified injury has occurred under subsection 440.20(4), a later finding that the compensable injury was not caused in major part by the workplace accident in the first instance, will not satisfy the necessary proof that the compensable injury “no longer” remains the major contributing cause of the need for treatment — as such a finding would be, in actuality, a belated way of saying “the compensable injury was never compensable,” which (assuming the 120-day rule results in waiver) is prohibited under section 440.20(4).

Because the JCC failed to make sufficient findings of fact and conclusions of law            concerning the application of subsection 440.20(4), the case was remanded for additional findings upon application of the correct analysis.

  1. Applying the three-part Sierra analysis in our case, it is indisputable that E/C has waived the right to deny compensability of the numerous conditions for which Dr. Hodor has been providing authorized care and treatment.

Part 1: the date E/C first provided benefits for the injuries, conditions, and aggravations being treated by Dr. Hodor? Answer: In a question of first impression, it was established in Osceola County School Board v. Arace, 884 So. 2d 1003 (Fla. 1st DCA 2004) that the phrase “initial provision of benefits” in section 440.20(4), Florida Statutes (2000) refers to the first examination or treatment by an authorized treatment provider. That date is January 29, 2019, the date Dr. Hodor first examined and began treating the Claimant. Even giving E/C the benefit of the doubt, March 26, 2019 is the very latest date it can be said that E/C initially provided benefits for the various medical conditions Dr. Hodor has treated under E/C’s authorization.

Part 2. The identity of the specific orthopedic injuries for which benefits were provided? Answer: those outlined in the February 5, 2019 MRI and addressed by Dr. Hodor.   

Part 3: whether the E/C timely denied compensability of the injuries for which benefits were provided – i.e., within the 120-day period immediately following the initial provision of benefits for the specific orthopedic injuries? Answer: E/C did not timely deny compensability of the injuries within the required time period. It was not until August 19, 2020, with the filing of its Motion to Amend Pretrial Stipulation, that E/C even suggested that it might be intending to deny compensability.

  1. The “120-Day Rule” in action.

Bynum Transport, Inc. v. Snyder, 765 So. 2d 752 (Fla. 1st DCA 2000). The Claimant was involved in a work-related motor vehicle crash on November 11, 2017. E/C paid for head, neck, and back injuries. On February 9, 1998, E/C authorized internist Dr. Grossman to begin treating the Claimant for hepatitis. On March 23, 1998, Dr. Grossman informed E/C in writing that “he could not determine whether Snyder had contracted the disease from tattoos, prior blood contact, prior hepatitis C contact, or lying with open wounds after the truck accident in mud that might have been infected.” E/C paid for some of the hepatitis treatment, but then stopped payment. Claimant responded by filing a Petition for Benefits seeking a determination of the compensability of his hepatitis C. Based on section 440.20(4), the “120-Day Rule,” the JCC found the hepatitis C compensable. Based on the following reasoning, the Order was Affirmed on appeal:

When an E/C becomes aware that a claimant has medical needs, it should either pay for them, pay and investigate under section 440.20(4), or deny compensability. If the E/C is not sure whether to provide compensation or benefits, the pay-and-investigate provision offers a limited window of time in which to explore the question of compensability without being locked into a fixed position. Dr. Grossman’s letter should have alerted the E/C to the necessity of investigating the cause of Snyder’s illness. Once it began paying benefits to Snyder relating to his hepatitis C, the E/C could not evade its obligation to investigate and decide either to continue making payments or to deny compensability, by simply ceasing to pay and remaining silent. Therefore, its failure to deny compensability within 120 days from the provision of benefits constituted its acceptance of compensability.

Boyett v. Wal-Mart, 906 So. 2d 1216 (2005). The JCC denied the compensability of the Claimant’s left-sided flank hernia. On appeal, Claimant asserted that the JCC committed reversible error by not finding the injury compensable under the “120-Day Rule.” The First DCA agreed, concluding that “the record does not contain competent, substantial evidence sufficient to support the judge’s finding that the employer and servicing agent could not, through reasonable investigation, have discovered material facts relevant to the issue of compensability within 120 days of their initial provision of benefits….” At 1217.

On March 2, 2003, while moving large toolboxes at work Claimant fell to the floor in apparent pain. When a co-worker asked if his pain was caused by moving boxes, the Claimant responded, “no, it’s that nasty old stuff I’ve had, maybe it’s coming back.” Later that day, he was taken to the emergency room by his son-in-law. There is no mention in the ER records of a workplace injury. Nine days later Claimant returned to the ER complaining of left-flank pain and wheezing. He was diagnosed with pneumonia and a clinical impression was made of a left-flank hematoma. After being released from the hospital some two weeks following the initial incident at work, Claimant ‘“asked to see [the employer’s] doctor.”’ The workers’ compensation servicing agent received the notice of injury on March 18 and authorized a physician the same day. Based solely on the history provided by Claimant, the physician attributed claimant’s abdominal injury to the lifting on March 2. The physician did not see the initial, March 2, emergency room record. On June 23, 2003, Claimant filed a Petition for Benefits seeking hernia surgery. E/C did not file a notice of denial until January 22, 2004, “more than 300 days after the initial provision of benefits.” The notice of denial was filed because the physician authorized by E/C changed his opinion at his deposition after being shown the March 2, 2003 ER record. He testified that the ER note was inconsistent with the history given him by the claimant, and with the hernia being work related.

At the merit hearing, claimant contended that his hernia condition was compensable as a matter of law because the employer and servicing agent had failed to deny compensability within 120 days after the initial provision of benefits as required by section 440.20(4), Florida Statutes (2002). The JCC rejected this argument, writing:

I acknowledge the claimant’s argument in regard to the applicability of the 120-rule; however, I specifically reject this argument and accept the employer/servicing agent’s argument that the information necessary to make a determination on causation could not have been reasonably obtained within the 120 day period.

The First DCA reversed. Given its clarity on the issues, pertinent portions of the Court’s explanation are reproduced below:

As the language of section 440.20(4) quoted above clearly states, absent a denial of compensability made within 120 days of the initial provision of benefits or payment of compensation, the employer and carrier (or servicing agent) waive the right to later do so, unless they are able to demonstrate the existence of “material facts relevant to the issue of compensability that [they] could not have discovered through reasonable investigation within the 120-period.” The judge’s order fails to identify any such “material facts,” and our review of the record reveals none. Appellees seem to take the position that, because claimant allegedly gave an inaccurate history to the physician to whom he had been sent, they had no obligation pursuant to section 440.20(4) to perform any investigation. The clear language of that section belies any such reading.

The record reflects without contradiction that the employer received a written statement from claimant’s fellow employee 11 days after the incident, reflecting that claimant had allegedly denied to her that his injury was attributable to moving toolboxes but that, rather, it was attributable to “that nasty old stuff” (i.e., the COPD) he had had. It is also clear that the employer was aware at least within weeks of the incident that claimant had taken the advice of the paramedics and gone to the emergency room. There is simply nothing in the record that would explain why the employer and servicing agent, armed with the fellow employee’s statement and the initial emergency room record (which could easily have been obtained), would not have had sufficient information to deny compensability within the 120-day period. Likewise, there is nothing to suggest what additional “material facts” could not have been discovered through reasonable investigation within that period. Because there is no competent, substantial evidence in the record to support the judge’s finding that the employer and servicing agent could not have reasonably obtained the information necessary to make a determination regarding compensability within the 120-day period, we reverse that portion of the merits order, as well as the portion of the order denying compensability for the hernia and for treatment of the COPD to the extent necessary to permit treatment of the hernia.

Mims v. Confederated Staffing, 940 So. 2d 518 (Fla. 1st DCA 2006). Claimant injured his lower back on December 31, 2003. E/C accepted compensability of the injury and authorized orthopedist Dr. Michael Scharf. Initially, Dr. Scharf diagnosed a disc herniation at the L4-5 level. On June 24, 2004, Dr. Scharf performed a laminectomy. His surgical note of the same date reported that the surgery disclosed spinal stenosis with no evidence of a disc herniation. On November 15, 2004, Dr. Scharf informed E/C’s attorney that “100% of claimant’s need for medical treatment was caused by pre-existing degenerative changes due to claimant’s personal condition, spinal stenosis.” E/C filed a formal denial of compensability within 120 days of the November doctor’s conference.

Claimant disputed the denial and the dispute was tried at a merit hearing. The JCC denied compensability, finding that the Claimant’s injury was wholly attributable to the preexisting condition. He rejected Claimant’s “120-Day Rule” waiver argument by further finding that there was nothing in the record to alert E/C of the preexisting condition prior to the November 15, 2004 conference between its attorney and Dr. Scharf. On appeal, the Court reversed the JCC’s denial of compensability of the injury to the Claimant’s back. In pertinent part, the Court wrote:

Dr. Scharf’s surgery notes of June 24, 2004, should have reasonably brought to the carrier’s attention the fact that claimant’s personal condition preexisted the industrial accident, thereby alerting it to the necessity of beginning an investigation, yet it failed to take any action within 120 days from such notice. The carrier presented no evidence that Dr. Scharf did not provide his office notes to it, that he misled it, or that his notes were lost or misplaced. The only evidence offered by the carrier as an excuse for its failure to deny within the 120-day period was that it only actually became aware as of November 15, 2004, that the industrial accident was not the major contributing cause of the injury. The statute does not, however, provide that the carrier have nothing less than actual notice, but rather that it have sufficient information to enable it to deny compensability within 120 days.

Sierra v. Metropolitan Protective Services, 188 So. 3d 863 (Fla. 1st DCA 2015). Please refer to the discussion on this case in paragraph 23 of this Trial Memo.  

  1. Claimant understands that “[a] distinction exists between the concept of compensability and a workers’ entitlement to either compensation or benefits.” See North River Ins. Co. v. Wuelling, 683 So.2d (1090) (Fla. 1st DCA 1996) (en banc); Checkers Rest. & Specialty Risk Servs., Inc. v. Wiethoff, 925 So.2d 348 (Fla. 1st DCA 2006) (en banc). Since E/C has waived the right to challenge the compensability of the medical conditions being treated by Dr. Hodor, its sole defense against the claim for TPD benefits is the following defense:

The claimant has reached overall MMI, with a 0% PIR, and no restrictions, three months following the date of accident per the opinion of E/C IME Dr. Fernandez.

  1. As E/C will not be presenting any evidence, much less anything approaching competent and substantial evidence, that the Claimant has reached MMI or does not have any restrictions from all of his compensable injuries, the Court must, as a matter of law, reject E/C’s defense.
  2. The only MMI and restrictions testimony the court will have before it as to all of Claimant’s many compensable conditions is from Dr. Hodor. Since his very first appointment with the Claimant, on January 29, 2019, to the most recent, on April 29, 2020, Dr. Hodor has been of the opinion that the Claimant has functional limitations and is not at MMI from the work related injuries. The only compensable injury for which Drs. Fernandez (E/C’s IME), Steinlauf (1x examination on September 7, 2018), and Brill (court appointed EMA) have expressed a contrary opinion is the ankle sprain. For this injury, and this injury only, these doctors are of the opinion that Claimant reached MMI approximately three months after the accident. None of them placed the Claimant at MMI or opined that he did not have restrictions with regard to any of the other compensable injuries.
  3. Rafael Fernandez, Jr., M.D. Fernandez is E/C’s IME. He examined the Claimant on July 22, 2020. On August 8, 2020, he generated a report containing his opinions. His opinions could not be any clearer:

It is my medical opinion … that Mr. Jones may have sustained a Grade I ankle sprain.

It would be my medical opinion … that Mr. Jones, under worst case scenario, would have reached maximum medical improvement approximately three months after the index industrial accident of July 19, 2016.

Based on the available medical records it would be my medical opinion that Mr. Jones would have a 0% permanent impairment as a result of the industrial accident….”

It is my medical opinion that the findings observed on the right ankle MRI performed on February 5, 2019 are not causally related to the index industrial accident.

      It is clear from this report that Dr. Fernandez’s MMI and impairment rating  opinions do not in any way relate to any of Claimant’s other compensable injuries. This is reiterated by his August 20, 2020 deposition testimony:

Direct examination by E/C’s Attorney   

Page 16-17/Lines 13-2

Q: But if you can go to your subsequent report that was issued on August 8, could you please go into more detail about what kind of injury you believe Mr. Jones sustained as a result of the June 2016 workplace accident?

A: The best that I could come up with, it appears that Mr. Jones sustained a sprained ankle, either a Grade I or a Grade 3…. It doesn’t sound like a Grade 3…. It sounded more to me, based on the records, to be a milder one…

20/16-24

Q: Doctor, what is your opinion as to when Mr. Jones reached MMI in regards to the July 19, 2016 workplace accident?

A: So again, since … the records weren’t crystal to exactly whether it was Grade I or Grade 3 of sprain, giving him the benefit of the doubt, I – I felt that three months after the date of injury would be a reasonable period of time….

Cross examination by Jeffrey P. Gale, Esquire, Claimant’s Attorney

Page 45/Lines 1-8

Q: When you saw him [Claimant] with regard to the ankle sprain, you felt that it – that he had reached maximum medical improvement, right?

A: When I saw him I thought that he was at maximum medical improvement. Yes, sir.

Q: Okay. From the ankle sprain?

A: From what I believe to his – that’s what – that’s what I believe he sustained. Yes, sir.

  1. Steven D. Steinlauf. Dr. Steinlauf was authorized by E/C and examined the Claimant one time, on September 7, 2018. His deposition was taken on October 16, 2020. Dr. Steinlauf limited his MMI and restrictions opinions to Claimant’s ankle sprain. He did not give any MMI and restrictions opinions with regard to Claimant’s other compensable injuries.

Direct examination by E/C’s Attorney

Pages 13-14/Lines 21-4

Q: … I know you haven’t been afforded the opportunity to see him more than one occasion, but do you have any opinion, based upon the one visit and the medical records that you have been able to review, whether or not Mr. Jones has ever reached maximum medical improvement?

A: Well, from the sprain, he would have reached maximum medical improvement, you know, within three months of the original accident.

  1. Jacqueline M. Brill. Based on E/C’s Motion to Appoint Expert Medical Advisor (ID79), the Court appointed Dr. Brill to serve as an EMA. The Court instructed Dr. Brill to address the following matters: (1) Whether or to what extent the industrial accident was responsible for claimant’s medical condition; (2) Permanent impairment and physical restrictions; (3) Whether claimant has reached MMI and needs further treatment as a consequence of the work injury.

Claimant agrees that there is a “disagreement in the opinions of the health care providers” on all of these points. However, because of the “120-Day Rule,” E/C and the Court are precluded from relying on the opinions of the EMA – as well as Drs. Fernandez and Steinlauf — on point 1. See Boyle v. JA Cummings, Inc., 212 So. 3d 1060, 1062-1063 (Fla. 1st DCA 2017). As to the “further treatment” in point 3, this issue is not properly before the Court and should not be decided at the upcoming merit hearing. Claimant does not consent to trying this issue at the hearing and has made his position known on this issue in his Reply to E/C’s assertion of same, for the absolute first and only time, in its Motion to Amend Pretrial Stipulation. E/C has not denied further medical treatment and no claim for same has been filed. It is not an issue framed by any facts or pleadings. Finally, as for MMI, permanent impairment, and restrictions, E/C’s proof fails. Hence, as a matter of law, the Court must rule in Claimant’s favor on these elements. As demonstrated above, Drs. Fernandez and Dr. Steinlauf failed to render any opinions on MMI, impairment rating, or restrictions on any injury other than an ankle sprain. As demonstrated below, Dr. Brill failed to render any opinions on MMI, impairment rating, or restrictions with regard to any injury other than an ankle sprain.

Dr. Brill examined the Claimant on September 29, 2020. She submitted her “EMA Report” along with a cover letter to the Court on October 13, 2020. Both documents are in evidence. Dr. Brill was also deposed on October 21, 2020. She limited her opinions regarding MMI and restrictions to the same ankle sprain addressed by Drs. Fernandez and Steinlauf, leaving Dr. Hodor as the only doctor of the four to express an opinion regarding MMI and restrictions with regard to any of Claimant’s many other more serious injuries and conditions.

The quick reveal as to the confined scope of Dr. Brill’s MMI opinions comes in her cover letter to the Court, where she writes:

[I]t is my professional opinion that the industrial accident that occurred on 07/19/2016 is not responsible for the claimant’s current medical condition and Mr. Jones has long since reached MMI with 0% permanent impairment rating with no functional limitations or restrictions as a consequence of the work injury. (Italics added by Claimant.)

It just so happens that the “current medical condition” referenced by Dr. Brill encompasses the newly diagnosed injuries and conditions Dr. Hodor has been authorized to treat since January 29, 2019. This statement is confirmed by Dr. Brill’s sworn deposition testimony:

Cross examination by Jeffrey P. Gale, Esquire

Pages 23/Lines 14-25

Q: Okay. Now, in addition to your EMA report, Dr. Brill, you sent a cover letter to Judge Sylvia Medina-Shore, correct?

A: Yes.

Q: And that’s dated October 13, 2020?

A: I’m sorry? Dated October 13, 2020, yes.

Q: And do you stand by the opinions that you set forth in that cover letter?

A: Yes, I do.

24-25/21-10

Q: And, Doctor, are the findings from that 2-5-2019 MRI also part of Mr. Jones’s current medical condition?

A: They are secondary to that underlying deformity, yes.

Q: Okay. And would you agree that Dr. Hodor, since January 29, 2019, which is the first time he saw Mr. Jones, has been treating Mr. Jones for what you referred to as his current medical condition?

A: He is conservatively attempting to manage patient’s symptoms that are due to his underlying condition, yes.

Q: … [W]hat you refer [to] as the current medical condition, right?

A: Yes.

What this shows is that Dr. Brill’s opinions regarding MMI and restrictions do not relate to the compensable conditions, which Dr. Brill describes as “claimant’s current medical condition.” This is made abundantly clear in these passages from Dr. Brill’s deposition:

Cross examination by Jeffrey P. Gale, Esquire

Pages 25-26/Lines 21-6

Q: Now, Dr. Fernandez, in talking about what he thought was related to the accident, was referencing the right ankle and he called it a grade I ankle sprain. Would you agree with that?

A: It’s impossible, honestly, to differentiate it between a grade I or a grade 2 ankle sprain without any advanced imaging being available for me to review.

Q: And would you also agree with Dr. Fernandez that none of the findings in the MRI are related to that grade 1 or grade 2 ankle sprain?

A: Yes, I would agree.

26-27/15-1

Q: Okay. So if we’re assuming that the initial notes referencing the left was in error, then – and we’ll agree for purposes of this deposition that Mr. Jones actually injured his right ankle in the accident, then you’re saying that, number one, the injury sustained in the accident was a right ankle grade 1 [or] 2 ankle sprain?

A: Yes.

Q: Okay. And then the opinion that you’ve expressed with regard to MMI is limited to that injury, the grand 1 [or] grade 2 ankle sprain, correct?

A: Yes, sir.

CONCLUSION

  1. Having failed to deny the compensability of Claimant’s various injuries and conditions within 120 days of when it was required to do so under section 440.20(4), Florida Statutes, E/C is legally estopped from asserting a major contributing cause defense to those injuries and conditions now. This leaves E/C with only one way of denying TPD benefits: show that he reached MMI or did not have restrictions from the compensable injuries prior to the claimed period. As described in detail above, E/C has failed, as a matter of law, to make such a prima facie showing. In short, E/C failed to elicit any medical testimony in support of this defense. All that the Court will see from Drs. Fernandez, Steinlauf, and Brill is that Claimant reached MMI from a sprained ankle within three months of the accident. What it will not see is even a single shred of evidence that Claimant has reached MMI or does not have restrictions from his other compensable injuries and conditions. The reason why is simple: Claimant continues to have restrictions and has not reached MMI from those serious injuries and conditions … and E/C has known it throughout the entire course of litigation on the claim at issue. This may explain why E/C failed to question Drs. Fernandez, Steinlauf, and Brill on those very points. Instead, E/C wants the Court to decide this case on MCC. It will be patently wrong for the Court to decide this case on MCC.

Respectfully submitted,

                                                                   Jeffrey P. Gale

[1] E/C raised these defenses for the first time on August 19, 2020, in its Motion to Amend Pretrial Stipulation (ID76). On September 8, the Court granted E/C’s Motion (ID95). However, E/C never followed up on the Order by filing a pleading amending the Uniform Pretrial Stipulation to include the defenses. Accordingly, Claimant objects to E/C’s use of these defenses in the November 30, 2020 Merit Hearing. In this Motion to Amend, E/C also withdrew the sole defense it had previously asserted in the Uniform Pretrial Stipulation to the claim for TPD, which is: “Claimant failed to timely return DWC-19’s (sic).” E/C timely received the duly executed DWC-19 for the claimed time period. On April 23, 2020, it was emailed to and received by E/C. On September 1, 2020, Adjuster Katy Casey-McCollough confirmed this in deposition testimony. This explains why E/C withdrew the defense.

[2] In her deposition taken on September 1, 2020, Adjuster Katy Casey-McCollough testified that the carrier received Dr. Hodor’s appointment records within a day or two of every service date.

[3] Dr. Steinlauf is not a listed witness in the Uniform Pretrial Stipulation.  Claimant objects to his testimony being accepted in evidence.

[4] E/C has not asserted this legal provision as a way of avoiding responsibility.

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