42
Fla. L. Weekly D2663aTop of Form

Workers’
compensation — Medical benefits — Total knee replacement — Major
contributing cause — Judge of compensation claims erred in awarding
compensability of total knee replacement and related attorney’s fees and costs
after finding that employer/carrier was barred as matter of law from raising
defense that compensable accident was not major contributing cause for surgery
and after finding that, pursuant to 120-day rule, e/c waived right to deny
compensability of preexisting arthritic condition — Claimant’s preexisting
osteoarthritis was a qualifying preexisting condition under section
440.09(1)(b), which limits liability of e/c for benefits when work-related
injury combines with preexisting disease to cause need for treatment;
accordingly, major contributing cause analysis was appropriate — JCC erred in
finding that preexisting knee arthritis was not a qualifying preexisting condition
because it required no medical treatment or caused no disability or impairment
before compensable workplace injury — Waiver of right to deny compensability
under 120-day rule must be timely raised specifically plead by claimant and may
not be raised sua sponte by JCC, as happened in instant case — Based on
expert medical advisor’s opinion that preexisting osteoarthritis, and not
effects of work accident, was MCC of the need for left total knee replacement,
surgery is not compensable

TECO ENERGY, INC. and TECO SERVICES,
INC., Appellants, v. MICHAEL K. WILLIAMS, Appellee. 1st District. Case No.
1D17-0233. Opinion filed December 19, 2017. An appeal from an order of the
Judge of Compensation Claims. Ellen H. Lorenzen, Judge. Date of Accident: April
25, 2013. Counsel: Gwen G. Jacobs of Bennett, Jacobs, & Adams, P.A., Tampa,
for Appellants. Laurie Thrower Miles of Miles and Parrish, P.A., Lakeland, and
Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.

(M.K. THOMAS, J.) Teco Energy, Inc.
and Teco Services, Inc. (“E/C”), appeal a final order awarding compensability
of a total knee replacement for Michael Williams (“Claimant”) and related
attorney fees and costs. The E/C argues the Judge of Compensation Claims
(“JCC”) erred by, 1) barring, as a matter of law, its defense of major
contributing cause (“MCC”); and 2) applying, sua sponte, the “120-Day
Rule” pursuant to section 440.20(4), Florida Statutes, as a limitation of
available defenses. We agree and reverse.

Factual
& Procedural History

On April 25, 2013, Claimant, a
journeyman electrician, experienced pain in his left knee after slipping on the
step of a pick-up truck at work. The E/C accepted compensability of the left
knee injury and authorized medical care with Dr. Morse, an orthopedic surgeon.
In February of 2011, Dr. Morse treated Claimant for a non-work related injury
to the right knee, which required surgery. During that treatment, the doctor
also examined the Claimant’s left knee. Dr. Morse noted Claimant’s left knee
symptoms in 2011 included significant medial compartment pain, suggestive of
either arthritis or a preexisting tear, but the doctor saw no need for
treatment of the left knee at that time.

When Dr. Morse examined Claimant
after the April 25, 2013, workplace injury to the left knee, he reported
significant preexisting left knee arthritis as confirmed by X-rays and an MRI.
When compared to the 2011 examination, Claimant demonstrated more symptoms for
grinding and pain behind the left kneecap. However, Claimant’s symptoms were concentrated
in the medial joint line which correlated with an acute injury of a medial
meniscal tear. Dr. Morse recommended left knee surgical repair, and indicated
seventy percent of the need for surgery was related to an aggravation from
Claimant’s underlying work injury, and thirty percent was related to
preexisting left knee arthritis.

The E/C authorized the left knee
surgery. According to Dr. Morse, the surgery revealed minimal arthritis in the
medial joint line and moderate arthritis behind the kneecap. Following the
surgery, Dr. Morse placed Claimant at maximum medical improvement (“MMI”)
effective March 20, 2014, and assigned a three percent permanent impairment
rating. As of the MMI date, Claimant’s left knee was asymptomatic regarding the
medial joint line with minimal symptoms of mild achiness associated with the
arthritis.

At the next office visit, almost a
year later, Dr. Morse administered an injection to Claimant’s left knee due to
complaints of occasional aches and pain. In the medical record documenting the
visit, Dr. Morse detailed the complaints were associated with Claimant’s
arthritis and activity level. In the Uniform Medical Treatment/Status Reporting
Form (DWC-25) completed on March 12, 2015, Dr. Morse noted that a steroid
injection was performed with no other change in status.

Subsequently, Claimant advised of
pain and stiffness on the inside of the left knee, which Dr. Morse reported as
typically associated with arthritis. In an April 9, 2015 clinical note, Dr.
Morse detailed:

Currently,
he has signs and symptoms consistent with degenerative arthrosis. . . At this
period of time, we recommend that the patient proceed with conservative
management consisting of viscosupplementation and providing medial unloader
brace. The treatment will be for the degenerative arthrosis and is not intended
to treat the initial work injury. The patient will maintain his current maximal
medical improvement status and does not need any limitation at work.

In the DWC-25 form for that visit,
Dr. Morse again documented no change with regard to the prior responses to
causation questions, but commented that the complaints for which Claimant
sought treatment were not work-related and that Claimant remained at MMI with
the same impairment rating. After office visits in May and June, Dr. Morse
confirmed no change in status on the DWC-25 forms, and the carrier approved an
injection to the left knee.

By October 1, 2015, Claimant was
complaining of constant aching pain in the left knee with occasional feelings
of instability. Dr. Morse diagnosed tri-compartmental primary osteoarthritis of
the left knee and left knee medial meniscus tear, post-surgery. Dr. Morse
recommended a left total knee replacement. At deposition, he opined that
Claimant’s preexisting condition, not the workplace injury, was the MCC of the
need for the recommended surgery.

Claimant filed a Petition for
Benefits requesting authorization of the left total knee replacement. The E/C
filed a timely response denying compensability and asserting that the work
place accident was not the MCC of the need for the surgery. In the Pre-Trial
Stipulations, the E/C stipulated to the compensability of the left knee
meniscus tear only “so long as it is and remains MCC,” and denied
responsibility for the preexisting arthritis, among other defenses. Claimant
nor the E/C asserted any “affirmative claims or defenses” in the Pre-Trial
Stipulation.1

Claimant obtained an IME with Dr.
Fiore, who opined that the MCC of the need for the left total knee replacement
was the work accident even though Claimant had pre-existing degenerative
arthritis, as the continued pain was the factor necessitating surgery. Due to
the conflict in medical experts, the E/C requested, and the JCC appointed, an
expert medical advisor (“EMA”) pursuant to section 440.13(9), Florida Statutes.
The EMA, Dr. Horan, noted Claimant’s similar history of knee problems on the
right side and indicated it was “very likely that his left knee and right knee
are following the exact same progression of osteoarthritis,” but that the
recent exacerbation, which was accepted as an acute meniscal tear, “just
accelerated his [left] knee for the total knee arthroplasty [replacement].” The
EMA concluded that he would “place the majority of the causation. . . on the
pre-existing osteoarthritis.” In his deposition, Dr. Horan testified that the
viscosupplementation injection performed by Dr. Morse, as well as the
recommended use of a brace, were treatments for degenerative joint disease, not
a meniscal tear. Dr. Horan predicted Claimant would also require a right total
knee replacement in the future, due to the osteoarthritic condition.

Prior to the merits hearing,
pre-trial memoranda were filed by the parties setting out the claims and
defenses. Claimant’s memorandum did not raise the “120-Day Rule” under section
440.20(4) or attach case law concerning its application or any mention of
waiver. At the merits hearing, Claimant introduced the deposition of the claims
adjuster. The adjuster testified that the E/C authorized Dr. Morse to treat
Claimant “for his left knee injury.” When asked whether there was “any
determination made as to what specific condition was compensable,” she
responded “[w]e authorized his left knee to get treated.” She stated further
that all treatment provided by Dr. Morse had been authorized, and that all
submitted bills had been paid. The adjuster testified that Dr. Morse’s October
1, 2015, report was the first information she received indicating some
percentage of Claimant’s left knee problem was related to a preexisting
condition. She later confirmed she received the April 9, 2015, medical report
and that she subsequently authorized the viscosupplementation injection
recommended in that report.

In closing argument at the final
hearing, Claimant specifically argued that the E/C accepted his left knee
condition, including the preexisting arthritis, as a compensable workplace
injury pursuant to section 440.13(1)(b), Florida Statutes. Citing the
definition of “compensable” under this subsection, Claimant relied, in part, on
the evidence that the E/C authorized the treatment expressly recommended by Dr.
Morse to treat the degenerative arthritis, not the workplace injury of a medial
meniscal tear. Based on the E/C’s authorization for treatment of the arthritis,
Claimant asserted that the E/C had accepted compensability of the arthritis and
had the burden of showing a break in causation, which they failed to do. In the
alternative, Claimant argued the arthritis could not be considered a
contributing cause in any MCC analysis because the condition did not qualify as
a “preexisting condition” under section 440.09(1)(b), Florida Statutes.

In response, the E/C asserted that
Claimant failed to satisfy his burden regarding MCC with respect to ongoing
medical care. Further, regarding section 440.13(1)(b), a break in the causal
chain occurred when the E/C’s liability fell below fifty percent. In the final
order, the JCC unequivocally accepted the EMA’s medical opinion that Claimant’s
preexisting arthritis — not the accidental compensable injury of a meniscal
tear — was the MCC of the need for the requested left total knee replacement.
Nevertheless, the JCC ultimately concluded that, as a matter of law, the E/C
was precluded from raising MCC related defenses because: 1) Claimant’s prior
arthritic knee condition could not be considered a contributing cause, as it
did not qualify as a “preexisting condition” in accordance with case law; and
2) pursuant to “120-Day Rule” of section 440.20(4), the E/C waived the right to
deny compensability of the preexisting arthritic condition. This appeal
followed.

Legal
Analysis

To the extent an issue turns on
resolution of the facts, the standard of review is competent substantial
evidence (“CSE”); to the extent it involves an interpretation of law, the
standard is de novo. Benniefield v. City of Lakeland, 109 So. 3d
1288, 1290 (Fla. 1st DCA 2013).

Qualifying
Preexisting Conditions

Once compensability of a work
accident is established, an E/C may no longer contest that the accident is the
MCC of the injuries. However, an E/C may thereafter challenge the connection
between a claimant’s need for specific treatment or benefits and the industrial
accident. Engler v. Am. Friends of Hebrew Univ., 18 So. 3d 613, 614
(Fla. 1st DCA 2009); see also City of Pembroke Pines v. Ortagus,
50 So. 3d 31 (Fla. 1st DCA 2010) (holding E/C must pay for treatment as long as
compensable condition remains MCC of need for treatment). When a work related
injury combines with a preexisting disease or condition to cause or prolong
disability or the need for treatment, the E/C must pay benefits “only to the
extent that the injury arising out of and in the course of employment is and
remains more than 50 percent responsible for the injury as compared to all
other causes combined and thereafter remains the [MCC] of the disability or
need for treatment.” § 440.09(1), Fla. Stat. (emphasis added).

Section 440.09(1) does not enumerate
“all other causes” for MCC analysis, but subsections (a) and (b) provide some
distinct limitations — to qualify the causes must be (1) subsequent injuries,
or (2) preexisting injuries and conditions. See Cespedes v. Yellow
Transp., Inc, 130 So. 3d 243 (Fla. 1st DCA 2013). As this Court summarized
in Cespedes, “under the text of section 440.09(1)(a)-(b), MCC analysis
cannot be performed in a vacuum or, particularly, in the absence of competing
causes.” Id. Thus, MCC has no application unless there is evidence of a
competing cause qualifying under one of the designated categories. Here, no
evidence was presented regarding subsequent injury. Accordingly, as the JCC
correctly noted, the question remaining was whether evidence existed of a qualifying
“preexisting injury or condition.”2

The JCC assumed that, for purposes
of 440.09(1)(b), a preexisting condition “must have produced the need for
medical care before the accident or caused claimant to have some disability or
impairment.” The JCC further concluded Claimant’s preexisting knee arthritis,
while symptomatic as early as 2011, was not a qualifying preexisting condition,
because it required no medical treatment or caused disability or impairment before
the 2013 workplace injury.

This Court previously announced the
test to determine whether a preexisting condition qualifies for MCC analysis. See
Osceola Cty. Sch. Bd. v. Pabellon-Nieves, 152 So. 3d 733, 734 (Fla. 1st
DCA 2014) (clarifying Bysczynski v. United Parcel Servs., Inc., 53 So.
3d 328 (Fla. 1st DCA 2010)). The inquiry is whether the condition independently
required treatment either before or after the compensable
accident. Pabellon-Nieves, 152 So. 3d at 734; Certistaff, Inc. v.
Owen, 181 So. 3d 1218, 1221-22 (Fla. 1st DCA 2015) (finding that JCC erred
in focusing on whether claimant received physician-provided treatment for
shoulder “to the exclusion of other evidence that Claimant was in fact
experiencing shoulder pain before the workplace accident and the objective
medical evidence of pre-existing shoulder conditions contributing to, if not
causing his symptoms”). The test is not limited to whether a claimant was, or
recently had been, undergoing physician-provided medical treatment for the
preexisting condition before the compensable accident. “It does not matter
whether a preexisting condition is ‘age-appropriate;’ what matters is whether
there is medical evidence that it is the major contributing cause of the need
for the requested treatment.” Pabellon-Nieves, 152 So. 3d at 734.

In Pabellon-Nieves, the JCC
appropriately considered, “the nature of the preexisting condition-including
the level of treatment necessitated by the preexisting condition prior to the
date of the accident, as compared to Claimant’s current condition and need for
the treatment” after the compensable accident. 152 So. 3d at 734. Here, the JCC
expressly held that Dr. Morse’s treatment on April 9, 2015, was “necessitated solely
by Claimant’s osteoarthritis and [was] not necessary because of
Claimant’s accident.” As a result, the osteoarthritis qualifies as a
preexisting condition for purposes of an MCC analysis under paragraph 440.09(1)(b),
and per the EMA, independently required the medical treatment at issue.

For the above reasons, we find that
Claimant’s osteoarthritis qualified as a preexisting condition under section
440.09(1)(b), and its consideration in the MCC analysis appropriate.

“The
120-Day Rule”

Section 440.20(4), commonly referred
to as the “120-Day Rule,” allows a carrier the option of paying and
investigating a claim for up to 120 days. Further, a carrier who fails to deny
compensability within that 120 days after the initial provision of benefits
waives the right to deny compensability, unless material relevant facts could
not have been discovered during the 120 day period. § 440.20(4). Once aware of
the need for medical benefits for a particular condition or injury, the carrier
has three options: pay, pay and investigate within 120 days, or deny. Bynum
Transp., Inc. v. Snyder, 765 So. 2d 752 (Fla. 1st DCA 2000); see also
Kestel v. City of Cocoa, 840 So. 2d 1141, 1142 (Fla. 1st DCA 2003). A
condition or injury may be deemed compensable if the carrier begins payment for
that condition or injury and fails to investigate within the 120 days, or fails
to deny compensability within that time period. Kestel, 840 So. 2d at
1142.

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.”).

Here, the EMA’s uncontroverted
opinions established Claimant’s preexisting arthritic condition as the primary
— if not the sole — cause of the need for the left knee surgery. Accordingly,
Claimant was unable to satisfy his burden of proof regarding the MCC
requirements of section 440.09(1). Regardless, the JCC ultimately barred the
E/C from raising the MCC defense citing waiver pursuant to the “120-Day Rule.”
In the order, the JCC applied the analysis discussed in Sierra v.
Metropolitan Protective Services, 188 So. 3d 863, 867 (Fla. 1st DCA 2015),
to find: (1) the date the E/C first provided the benefits; (2) the specific
identity of the injury for which benefits were provided; and (3) whether the
E/C timely denied compensability of that injury within the 120 day period
immediately following the provision of benefits for that injury. Id. at
867. CSE supports the JCC’s subsequent findings that the E/C provided medical
treatment in April of 2015, that the treatment was necessitated solely by
the osteoarthritis (not the accident), and that the E/C failed to deny the
compensability of the osteoarthritis within the 120 days following the initial
provision of treatment for that condition. However, as Claimant never raised
the “120-Day Rule” as a “defense,” the JCC’s unilateral initiative to apply
analysis under Sierra was flawed.

In School District of
Hillsborough County v. Dickson, 67 So. 3d 1080 (Fla. 1st DCA 2011), nearly
identical issues were addressed. This Court determined that the JCC violated
the due process rights of the E/C by sua sponte raising waiver under
subsection 440.20(4); specifically, by “mischaracterizing section 440.20(4) as
‘mandatory’ and ‘not in the nature of an affirmative defense,’ the JCC
improperly denied the E/C the opportunity to establish material facts that
could be used to prove it did timely deny benefits.” Id. at 1083. A
claimant’s “defense” of waiver to an E/C’s ability to deny compensability of an
accident or specific injury/condition pursuant to the “120-Day Rule,” is an
affirmative pleading which must be timely raised and specifically plead.

Waiver and estoppel are affirmative
defenses which must be plead carefully or forever waived. McKenzie Tank
Lines, Inc. v. McCauley, 418 So. 2d 1177, 1180 (Fla. 1st DCA 1982). The
party raising affirmative defenses has the burden of pleading and proving them.
Id. at 1180. A JCC is not permitted to raise, sua sponte, waiver
under the “120-Day Rule.” Dickson, 67 So. 3d at 1083; see also
Fla. Admin. Code R. 60Q-6.113(2)(a),(h).3 We find no merit to Claimant’s
argument that waiver was tried by consent due to inferences during closing
arguments.

Claimant argues the pretrial
stipulation contained the “substance” of the waiver defense under section
440.20(4) and, as such, was properly raised. This Court recently rejected an
argument that an issue was “implicitly” raised in a pretrial stipulation. See
McFarlane v. Miami-Dade Transit Auth., 42 Fla. L. Weekly D808 (Fla. 1st
DCA April 11, 2017). But, even assuming in light of McFarlane that
Florida Administrative Code Rule 60Q-6.113(2)(h) permits an affirmative defense
to be raised “in substance,” there is no such evidence in this case. The E/C
specified in the pretrial stipulation that the preexisting arthritic condition
was denied; yet, Claimant made no reference to the condition. Instead, Claimant
plead that he was pursuing the claim “as both a specific accident and injury as
well as a repetitive and cumulative trauma to Claimant’s left knee.” The JCC noted
that Claimant subsequently abandoned any argument based on repetitive and
cumulative trauma. It was not until the trial memorandum that Claimant
suggested, for the first time, that he was relying on the compensability of the
preexisting condition itself. But, as in McFarlane, the trial memorandum
was filed very shortly before the final hearing. Moreover, in the instant case,
Claimant never expressly argued at any point that the preexisting condition was
compensable pursuant to section 440.20(4).

Conclusion

We reverse the JCC’s determination
that the E/C was barred, as a matter of law, from asserting a MCC defense
regarding the left total knee replacement. Claimant’s preexisting
osteoarthritis is a qualifying preexisting condition under section 440.09(1)(b).
As an affirmative defense, the “120-Day Rule” pursuant to section 440.20(4),
must be timely and specifically plead by a claimant and may not be raised, sua
sponte, by the JCC. Accordingly, based on the opinions of the EMA that the
preexisting osteoarthritis, and not the effects of the work accident, is the
MCC of the need for the left total knee replacement, the surgery is not
compensable. The final order on appeal is REVERSED. (B.L. THOMAS, C.J., and
WETHERELL, J., CONCUR.)

__________________

1The Uniform Pre-Trial Stipulation
form provides a specific section for the listing of “Affirmative Claims and
Defenses.”

2If the preexisting condition is due
to an industrial accident, it does not qualify under section 440.09(1)(b). See
Pearson v. Paradise Ford, 951 So. 2d 12 (Fla. 1st DCA 2007); Pizza
Hut v. Proctor, 955 So. 2d 637 (Fla. 1st DCA 2007).

3Fla. Admin. Code R. 60Q-6.113(2)(a),
states:

In pretrial stipulations and at any pretrial hearing, the
parties shall:

(a) State
the claims, defenses, and the date of filing of each petition for benefits to
be adjudicated at the final hearing. Any claims that are ripe, due, and owing,
and all available defenses not raised in the pretrial stipulation are waived
unless thereafter amended by the judge for good cause shown. . .

Fla. Admin. Code R. 60Q-6.113(2)(h)
requires, “[a]ny defense raised pursuant to Sections 440.09(4)(a) and 440.105,
F.S., and any affirmative defense, must be raised with specificity, detailing
the conduct giving rise to the defense, with leave to amend within 10 days.
Failure to plead with specificity shall result in the striking of the defense.
Any objections/responses to the affirmative defenses must be pled with
specificity.”

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