Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

October 17, 2014 by admin

Workers’ Compensation — Improper denial of claim for reimbursement of medical expenses and other benefits

39 Fla. L. Weekly D2152a


Workers’ compensation — Judge of compensation claims erred in denying claim
for reimbursement of medical expenses, mileage, and co-payments incurred by
claimant for follow-up treatment received after accident on ground that claimant
failed to request this medical care where claimant’s supervisor was aware of
claimant’s injury, but employer failed to provide initial treatment or care and
did not notify carrier of accident in timely manner

PHILLIP A. FORTUNE, Appellant, v. GULF COAST TREE CARE INC./ FLORIDA CITRUS
BUSINESS AND INDUSTRIES, Appellees. 1st District. Case No. 1D13-5580. Opinion
filed October 13, 2014. An appeal from an order of the Judge of Compensation
Claims. Ellen H. Lorenzen, Judge. Date of Accident: May 19, 2011. Counsel: J.
Craig Delesie, Jr., of Kadyk & Delesie, P.A., Riverview, for Appellant.
Hinda Klein and Thomas G. Regnier of Conroy, Simberg, Ganon, Krevans, Abel,
Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
(PER CURIAM.) In this workers’ compensation case, Claimant argues that the
Judge of Compensation Claims (JCC) erred in denying his claim for reimbursement
of medical expenses, mileage, and co-payments incurred for treatment received
following his May 19, 2011, accident. We agree and reverse the JCC’s denial of
those reimbursements.
The relevant facts are not in dispute. Claimant suffered a dislocated
shoulder after an assault by an angry bicyclist (a dentist), who rode up and
punched Appellant as he was sitting in his vehicle preparing to enter a gated
community to deliver an estimate to a customer. Claimant received emergency
treatment the day of the accident at Brandon Regional Hospital, where his
shoulder was placed back into proper alignment, and he was advised to seek
follow-up care. Even though Claimant’s supervisor was immediately notified of
the incident, came to the scene of the incident, and followed Claimant to the
hospital, a notice of injury was not completed at that time.
Thereafter, Claimant received follow-up care at a Veterans Administration
facility beginning approximately eleven days after the incident and culminating
in an attempted surgical repair about two months later. During this relevant
time period, Claimant and the Employer maintained their working relationship.
The Carrier first received notice of the injury in September 2012, some
sixteen months after the incident. Upon receiving notice of the accident, the
Carrier denied compensability of the injuries.
Following a merits hearing, the JCC found Claimant was an employee of Gulf
Coast Tree Care, Inc., and that he was in the course and scope of his employment
at the time of the accident. The JCC required the Employer/Carrier (E/C) to
reimburse the emergency treatment provided to Claimant on the date of the
accident and also required the E/C to provide Claimant with future medical
treatment. The JCC denied, however, reimbursement for the follow-up treatment in
the time period immediately following the accident. The JCC did so because
Claimant failed to request this medical care, or any medical care, from either
the Employer or the Carrier.
When the facts are not in dispute, the application of law to those facts is
reviewed de novo. See Airey v. Wal-Mart, 24 So. 3d 1264, 1265
(Fla. 1st DCA 2009) (noting that when “[t]he pertinent facts are undisputed . .
. the issue is one purely of law, subject to de novo review”). To the extent
resolution of an issue requires statutory interpretation, review is de novo.
See Lombardi v. S. Wine & Spirits, 890 So. 2d 1128, 1129 (Fla.
1st DCA 2004) (holding statutory interpretation is subject to de novo review).
In construing a statute, courts must first look to its plain language.
See Perez v. Rooms To Go, 997 So. 2d 511, 512 (Fla. 1st DCA 2008).
“A basic tenet of statutory interpretation is that a ‘statute should be
interpreted to give effect to every clause in it, and to accord meaning and
harmony to all of its parts.’ ” Jones v. ETS of New Orleans, Inc., 793
So. 2d 912, 914-15 (Fla. 2001) (citing Acosta v. Richter, 671 So. 2d 149,
153-54 (Fla. 1996)). Here, the relevant section is 440.13(2)(c), Florida
Statutes (2010):

If the employer fails to provide initial treatment or care required
by this section after request by the injured employee, the employee may obtain
such initial treatment at the expense of the employer, if the initial treatment
or care is compensable and medically necessary and is in accordance with
established practice parameters and protocols of treatment as provided for in
this chapter. There must be a specific request for the initial treatment or
care, and the employer or carrier must be given a reasonable time period within
which to provide the initial treatment or care. However, the employee is not
entitled to recover any amount personally expended for the initial treatment or
care unless he or she has requested the employer to furnish that initial
treatment or service and the employer has failed, refused, or neglected to do so
within a reasonable time or unless the nature of the injury requires
such initial treatment, nursing, and services and the employer or his or her
superintendent or foreman, having knowledge of the injury, has neglected to
provide the initial treatment or care
.

(Emphasis added.) The underlined portion of section 440.13(2)(c) is an
exception to the general rule, detailed earlier in the subsection, and the rule
relied upon by the JCC to deny reimbursement of the claimed expenses. There was
no dispute that Claimant’s supervisor was aware of Claimant’s injury, that the
injury required treatment including surgery, that Claimant was required to miss
time from work, and that Claimant was required to limit his activities. The JCC
erred by failing to give effect to the exception, where “the employer . . .
neglected to provide the initial treatment or care.”
In adjudicating this claim, the JCC also failed to recognize that the
Employer did not notify the Carrier of the incident until September 2012, some
sixteen months after it occurred. Had the Employer notified the Carrier in a
timely fashion, as required by statute — “[w]ithin 7 days of actual knowledge
of injury or death” § 440.185(2), Fla. Stat. (2010) — then all of the
statutorily-mandated notices and information, including the statutorily-required
informational brochure (see § 440.185(4), Fla. Stat. (2010)), would have
been provided to Claimant.
When the E/C acts in accordance with its obligations under chapter 440, it
has considerable control over the provision of medical care. It is only when the
E/C fails to fulfill those obligations that it loses that control. See
Parodi v. Fla. Contracting Co., 16 So. 3d 958, 961-62 (Fla. 1st DCA 2009)
(“When an employer abandons its obligation to provide appropriate care, however,
it likewise surrenders to the injured employee the right to select a physician
and obtain treatment, provided the care is ‘compensable and medically
necessary.’ ” (quoting § 440.13(2)(c), Fla. Stat.)). Even though the E/C
certainly had the right to deny compensability of the claim, doing so was at its
peril. If the basis for the denial is rejected by the JCC, it has lost its right
to control the past medical treatment.
Because the JCC failed to apply the plain language of the statute to the
undisputed facts, the JCC erred in not awarding the requested benefits —
reimbursement for follow-up treatment, reimbursement for mileage, and
reimbursement for co-payments. Accordingly, this matter is REVERSED and REMANDED
for entry of an order consistent with this opinion. (LEWIS, C.J., THOMAS and
MARSTILLER, JJ., CONCUR.)

* * *

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Winn-Dixie, website, customers, prescription, place of public accommodation, coupons, refills, privileges, disabled, advantages, accommodations, visually-impaired, auxiliary, public accommodation, inaccessible, barrier, offerings, sighted, majority opinion, intangible, enjoyment, locator, rewards, card, district court, facilities, shopping, software, communicate, in-store – The difficulties caused by the customer’s inability to access much of the store’s website constituted a concrete and particularized injury that was not conjectural or hypothetical, and would continue if the website remained inaccessible; [2]-The statutory language in Title III of the ADA defining “public accommodation” was unambiguous and clear, and public accommodations were limited to actual, physical places, and websites were not a place of public accommodation under the statute; [3]-The store’s website did not constitute an intangible barrier to the customer’s ability to access and enjoy fully the physical grocery store; [4]-Absent congressional action that broadened the definition of “places of public accommodation” to include websites, the appellate court could not extend ADA liability to the facts presented.
  • Civil rights — Employment discrimination — Pharmacist employed by Department of Veterans Affairs brought action against Secretary, alleging that her managers at VA medical center discriminated against her based on her gender and age, retaliated against her because she engaged in protected activity, and subjected her to hostile work environment in violation of Title VII and Age Discrimination in Employment Act — Retaliation — Title VII’s federal-sector retaliation provision requires personnel actions to be made free from any discrimination — Supreme Court’s decision in pharmacist’s case, which held that federal-sector provision of ADEA did not require plaintiff to prove that age was a but-for cause of a challenged personnel action, undermined to the point of abrogation Eleventh Circuit’s prior panel precedent holding that Title VII’s federal-sector retaliation provision requires but-for causation — Standard that Supreme Court articulated for claims under ADEA’s federal-sector provision controls cases arising under Title VII’s nearly identical federal-sector provision — Retaliatory hostile work environment — An actionable federal-sector Title VII retaliatory-hostile-work-environment claim must describe conduct that rises to the level of personnel actions and must be evaluated under “might have dissuaded a reasonable worker” standard rather than the more stringent “severe or pervasive” standard
  • Insurance — Personal injury protection — Reasonable, related, and necessary medical treatment — Civil procedure — Summary judgment — Opposing affidavit — Trial court abused its discretion in granting motion to strike affidavit of independent medical examiner based on plaintiff’s claim that affidavit “baldly repudiated” affiant’s deposition testimony regarding relationship between injuries and accident and medical necessity of chiropractic treatment — Because affiant’s testimony raised genuine issue of material fact, as it clearly conflicted with testimony of treating chiropractor, order granting summary judgment in favor of assignee/medical provider reversed
  • Wrongful death — Automobile accident — Jurors — Peremptory challenge — Race neutral explanation — Genuineness — New trial — Evidence — Trial court did not abuse its discretion in granting a new trial based on its improper denial of plaintiff’s peremptory challenge of juror — Trial court failed to apply proper legal standard in denying plaintiff’s peremptory strike of juror where it failed to recognize the presumption that plaintiff was exercising her peremptory challenge in a nondiscriminatory manner and hold defendants to their burden of proving purposeful discrimination — Fact that juror was sole African American juror left on the panel is, standing alone, insufficient to override a genuine race-neutral challenge — Trial court erred in granting a new trial based on its determination that verdict finding one of the defendants 100% liable for the fatal accident was against the manifest weight of the evidence — Order shows that trial court improperly re-weighed the evidence and acted as a seventh juror in doing so — Trial court erred in permitting jury to hear evidence related to defendant’s driving history where not only was the evidence unduly prejudicial, but the citations bore no similarity to the circumstances at issue and had no relevance to defendant’s alleged negligence at the time of the accident — Trial court erred in granting defendant’s motion notwithstanding verdict which asserted that defendant should not be liable for the total amount of damages to co-defendant’s tractor-trailer — A new-trial order and order for judgment notwithstanding verdict are mutually inconsistent and may not be granted simultaneously unless granted on the express condition that the order granting the judgment notwithstanding verdict only becomes effective if the order granting new trial is reversed on appeal, which did not happen in this case
  • Workers’ compensation — Prosthetic devices — Limitation of actions — Claimant who had screws and rods inserted in her spine as a result of an injury occurring in 1990 — Judge of compensation claims erred in rejecting employer/carrier’s statute of limitations defense to claim for pain management and a replacement mechanical bed — While applicable 1989 version of workers’ compensation law contained an exemption from its statute of limitations to the right for remedial attention relating to the insertion or attachment of a prosthetic device, there is no evidence that either the prosthesis, or the surgery required to insert it, is causing the need for the requested benefits as opposed to the underlying condition that necessitated the prosthesis in the first place — Fact that claimant may have a prosthetic device is not, standing alone, sufficient to prevent statute of limitations from accruing

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982