42
Fla. L. Weekly D808aop of Form
Fla. L. Weekly D808aop of Form
Workers’
compensation — Medical benefits — Judge of compensation claims erred in
denial of claim for continued medical care with previously authorized medical
provider on basis that claimant acquiesced to the authorization of another
provider as one-time change of physicians — JCC improperly considered E/C’s
acquiescence defense where that defense was not raised in pretrial stipulation
and was not mentioned by E/C until trial memorandum was filed less than a week
before final hearing
compensation — Medical benefits — Judge of compensation claims erred in
denial of claim for continued medical care with previously authorized medical
provider on basis that claimant acquiesced to the authorization of another
provider as one-time change of physicians — JCC improperly considered E/C’s
acquiescence defense where that defense was not raised in pretrial stipulation
and was not mentioned by E/C until trial memorandum was filed less than a week
before final hearing
DIANNE
McFARLANE, Appellant, v. MIAMI-DADE TRANSIT AUTHORITY AND MIAMI-DADE COUNTY
RISK MANAGEMENT, Appellees. 1st District. Case No. 1D16-2080. Opinion filed
April 11, 2017. An appeal from an order of Judge of Compensation Claims.
Gerardo Castiello, Judge. Date of Accident: August 6, 2009. Counsel: Bill
McCabe, Longwood, and Bradley D. Asnis of Asnis, Srebnick & Kaufman, LLC,
Sunrise, for Appellant. Abigail Price-Williams, County Attorney, and Lynda S.
Slade, Miami, for Appellees.
McFARLANE, Appellant, v. MIAMI-DADE TRANSIT AUTHORITY AND MIAMI-DADE COUNTY
RISK MANAGEMENT, Appellees. 1st District. Case No. 1D16-2080. Opinion filed
April 11, 2017. An appeal from an order of Judge of Compensation Claims.
Gerardo Castiello, Judge. Date of Accident: August 6, 2009. Counsel: Bill
McCabe, Longwood, and Bradley D. Asnis of Asnis, Srebnick & Kaufman, LLC,
Sunrise, for Appellant. Abigail Price-Williams, County Attorney, and Lynda S.
Slade, Miami, for Appellees.
(PER
CURIAM.) In this workers’ compensation case, Claimant appeals the Judge of
Compensation Claims’ (JCC’s) denial of her claim for continued medical care
with Dr. Hodor, a previously authorized medical provider. The JCC based his
decision on a finding that Claimant acquiesced to the authorization of another
provider as her one-time change of physician from Dr. Hodor. Because we find
that the JCC improperly considered the E/C’s acquiescence defense, we reverse.
CURIAM.) In this workers’ compensation case, Claimant appeals the Judge of
Compensation Claims’ (JCC’s) denial of her claim for continued medical care
with Dr. Hodor, a previously authorized medical provider. The JCC based his
decision on a finding that Claimant acquiesced to the authorization of another
provider as her one-time change of physician from Dr. Hodor. Because we find
that the JCC improperly considered the E/C’s acquiescence defense, we reverse.
Following
her workplace accident on August 6, 2009, Claimant received authorized medical
treatment from Dr. Hodor for a right wrist injury and from Dr. Baylis for a
right shoulder injury. In 2011, Claimant requested a one-time change of
physician from Dr. Baylis in accordance with paragraph 440.13(2)(f). Paragraph
440.13(2)(f) provides that upon the grant of a one-time change, the originally
authorized physician shall become deauthorized upon written notification by the
E/C. In a timely response, the E/C authorized a change from Dr. Baylis to Dr.
Feanny. After receiving treatment from Dr. Feanny for both the right wrist and
right shoulder injuries, Claimant filed a petition for benefits (PFB) in 2015,
which sought authorization of continued care with Dr. Hodor. Although the
claims adjuster had testified only months earlier that Dr. Feanny was the
one-time change from Dr. Baylis, that Dr. Baylis was no longer authorized, and
that Dr. Hodor remained authorized, the E/C sent a deauthorization letter to
Dr. Hodor shortly after the PFB was filed.
her workplace accident on August 6, 2009, Claimant received authorized medical
treatment from Dr. Hodor for a right wrist injury and from Dr. Baylis for a
right shoulder injury. In 2011, Claimant requested a one-time change of
physician from Dr. Baylis in accordance with paragraph 440.13(2)(f). Paragraph
440.13(2)(f) provides that upon the grant of a one-time change, the originally
authorized physician shall become deauthorized upon written notification by the
E/C. In a timely response, the E/C authorized a change from Dr. Baylis to Dr.
Feanny. After receiving treatment from Dr. Feanny for both the right wrist and
right shoulder injuries, Claimant filed a petition for benefits (PFB) in 2015,
which sought authorization of continued care with Dr. Hodor. Although the
claims adjuster had testified only months earlier that Dr. Feanny was the
one-time change from Dr. Baylis, that Dr. Baylis was no longer authorized, and
that Dr. Hodor remained authorized, the E/C sent a deauthorization letter to
Dr. Hodor shortly after the PFB was filed.
Florida
Administrative Code Rule 60Q-6.113(2)(a) states, in pertinent part, that “all
available defenses not raised in the pretrial stipulation are waived unless
thereafter amended by the judge for good cause shown” and that “[a]bsent an
agreement of the parties, in no event shall an amendment or supplement be used
to raise a new claim or defense that could, or should have been raised when the
initial pretrial stipulation was filed, unless permitted by the judge for good
cause shown.” In the pretrial stipulation, the E/C asserted a defense that
Claimant had previously requested a one-time from Dr. Hodor, who is no
longer authorized, and that the authorized physician is Dr. Feanny, who has
been treating Claimant since the one-time change. Significantly, the word
“acquiescence” does not appear at all in the pretrial stipulation and was not
mentioned by the E/C until their trial memorandum was filed less than a week
before the final hearing. The E/C have not established good cause for this
omission. We are unpersuaded by the E/C’s argument that the absence of the word
“acquiescence” in the pretrial stipulation is irrelevant because this defense
was somehow implicit in the words that were used.
Administrative Code Rule 60Q-6.113(2)(a) states, in pertinent part, that “all
available defenses not raised in the pretrial stipulation are waived unless
thereafter amended by the judge for good cause shown” and that “[a]bsent an
agreement of the parties, in no event shall an amendment or supplement be used
to raise a new claim or defense that could, or should have been raised when the
initial pretrial stipulation was filed, unless permitted by the judge for good
cause shown.” In the pretrial stipulation, the E/C asserted a defense that
Claimant had previously requested a one-time from Dr. Hodor, who is no
longer authorized, and that the authorized physician is Dr. Feanny, who has
been treating Claimant since the one-time change. Significantly, the word
“acquiescence” does not appear at all in the pretrial stipulation and was not
mentioned by the E/C until their trial memorandum was filed less than a week
before the final hearing. The E/C have not established good cause for this
omission. We are unpersuaded by the E/C’s argument that the absence of the word
“acquiescence” in the pretrial stipulation is irrelevant because this defense
was somehow implicit in the words that were used.
We
also find no merit in the E/C’s argument that they were not required to raise
acquiescence as a defense because it is not an affirmative defense. It appears
self-evident that acquiescence is an affirmative defense under these
circumstances; but even if we were to assume otherwise, the pretrial rule
applies to all defenses.
also find no merit in the E/C’s argument that they were not required to raise
acquiescence as a defense because it is not an affirmative defense. It appears
self-evident that acquiescence is an affirmative defense under these
circumstances; but even if we were to assume otherwise, the pretrial rule
applies to all defenses.
In
short, by failing to comply with the applicable pretrial rule, the E/C here waived
any defense based on acquiescence. We therefore REVERSE and REMAND for entry of
an order granting the claimed benefits in accordance with this opinion.
(ROBERTS, C.J., WOLF and B.L. THOMAS, JJ., CONCUR.)
short, by failing to comply with the applicable pretrial rule, the E/C here waived
any defense based on acquiescence. We therefore REVERSE and REMAND for entry of
an order granting the claimed benefits in accordance with this opinion.
(ROBERTS, C.J., WOLF and B.L. THOMAS, JJ., CONCUR.)
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