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
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

November 20, 2015 by admin

Workers’ compensation — No error in awarding psychiatric treatment and temporary total disabilities based on finding that claimant suffered compensable and disabling mental injury

40
Fla. L. Weekly D2581a
Top of Form

Workers’
compensation — No error in awarding psychiatric treatment and temporary total
disabilities based on finding that claimant suffered compensable and disabling
mental injury — Evidence — Although judge of compensation claims improperly
considered medical opinions of physician who was not treating physician,
independent medical examiner, or expert medical advisor, error was harmless —
JCC reversibly erred by ordering employer/carrier to pay providers and any
third-party payers for services provided — JCC had jurisdiction only to
conclude that care was for compensable injury and medically necessary, and
therefore not claimant’s responsibility — JCC erred in concluding that
claimant’s first psychiatric hospitalization was not compensable emergency care

BOLEY CENTERS, INC./ COMP OPTIONS,
Appellants/Cross-Appellees, v. WILLIAM VINES, Appellee/Cross-Appellant. 1st
District. Case No. 1D14-5869. Opinion filed November 16, 2015. An appeal from
an order of the Judge of Compensation Claims. Stephen L. Rosen, Judge. Date of
Accident: January 8, 2014. Counsel: Ben H. Cristal and Gian-Franco Melendez of
Cristal Hanenian, LLC, Tampa, for Appellants/Cross-Appellees. Bill McCabe,
Longwood, and John H. Thompson, IV, St. Petersburg, for
Appellee/Cross-Appellant.

(PER CURIAM.) In this workers’ compensation case, the
Employer/Carrier (E/C) raises four issues on appeal to challenge the Judge of
Compensation Claims’ (JCC’s) award of psychiatric treatment and temporary total
disability benefits. On cross-appeal, Claimant raises one issue and argues the
JCC erred by concluding the first of his two psychiatric hospitalizations was
not compensable emergency medical care. As explained below, we affirm in part,
reverse in part, and remand for entry of an order consistent with our opinion
herein.

In the first issue on appeal, the E/C correctly points out
that the JCC improperly considered the medical opinions of a physician who was
not a treating physician, independent medical examiner (IME), or expert medical
advisor. § 440.13(5)(e), Fla. Stat. (2013). See also Cespedes v.
Yellow Transp., Inc.
, 130 So. 3d 243, 250-51 (Fla. 1st DCA 2013) (holding
proof of compensable emergency care requires medical opinion admissible under
subsection 440.13(5)(e) which establishes emergency care was both medically
necessary for, and causally related to, compensable workplace injury).
Nevertheless, based on this court’s review of the appellate record as a whole,
such error is harmless — as we conclude there is no reasonable possibility
that this error contributed to the result in this case, nor is there a
reasonable possibility that a different result would be reached were this case
remanded for reconsideration of the issue of compensability without the benefit
of the emergency room physician’s opinions. See Special v. W. Boca
Med. Ctr.
, 160 So. 3d 1251, 1256 (Fla. 2014) (holding that the test for
harmless error requires beneficiary of error to establish there was no
reasonable possibility that the error contributed to verdict).

We find no merit to the E/C’s second point on appeal, which
argues the JCC used an improper legal standard to find Claimant’s mental injury
compensable, and affirm without further comment.

On the E/C’s third point on appeal, we agree the JCC
reversibly erred when he ordered the E/C to pay the providers and any third
party payers for all psychiatric bills incurred after April 2, 2014. The JCC
had no jurisdiction to award payment to the emergency care providers or
reimbursement to any third party payer for services. Instead, the JCC could
only conclude that the care was for a compensable injury and was medically
necessary — and therefore not Claimant’s responsibility. See Williams
v. Triple J Enters.
, 650 So. 2d 1114, 1116 (Fla. 1st DCA 1995) (explaining
that although JCC does not have jurisdiction over reimbursement disputes
between medical providers and carriers, JCC has jurisdiction to resolve issues
of medical necessity as between claimant and carrier).

Because we find no reversible error regarding the JCC’s
finding and conclusion that Claimant suffered a compensable and disabling
mental injury, the E/C’s fourth point on appeal, which challenges an award of
disability benefits attributable to such injury, is affirmed.

Relative to Claimant’s cross-appeal, which challenges the
JCC’s finding that Claimant’s first psychiatric hospitalization was not
compensable emergency care, we conclude that the facts that establish the
second hospitalization as emergency services, as was concluded by the JCC
(under sections 440.13(1)(f) and 395.002(10), Florida Statutes (2013)), are not
meaningfully different than the facts surrounding the first hospitalization.
Accordingly, we reverse the JCC’s conclusion that the first hospitalization was
not compensable emergency medical care.

In summary, we AFFIRM the appealed order to the extent it
finds Claimant suffered a compensable psychiatric injury, REVERSE that portion
of the order requiring the E/C to make payment to medical providers, REVERSE
the JCC’s finding that Claimant’s first hospitalization was not compensable
emergency medical care, and REMAND for entry of an order consistent with this
opinion. (WOLF, THOMAS, and KELSEY, JJ., CONCUR.)

* *
*

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Insurance — Commercial property — Coverage — Business losses — Business interruption — All-risk commercial policy providing coverage for “direct physical loss of or damage to” property or “direct physical loss or damage to” property does not insure against losses and expenses incurred by business as result of COVID-19 — Under Florida law there is no coverage because COVID-19 did not cause tangible alteration of the insured properties
  • Insurance — Commercial property — Coverage — Business income losses — Trial court’s finding that policy covering loss of business income due to the suspension of operations caused by “direct physical loss or damage to property” required some tangible alteration to insured property comported with common meaning of its terms and context of policy as a whole — Policy did not cover economic losses insured suffered when it suspended its operations due to COVID-19 pandemic — No error in dismissing with prejudice insured’s petition for declaratory relief and damages
  • Torts — Negligent security — Sovereign immunity — Agency — Limited immunity — Punitive damages — Amendment of complaint — Action brought against company which contracted with county to provide security services and its employee — Defendant company was entitled to limited sovereign immunity under 768.28(5) where county asserted a degree of control over defendant’s employees — Fact that defendant’s employee was working alone rather than side-by-side with county employees did not change level of control county had over defendant employee as evidenced by contract between county and defendant — Absolute immunity under section 768.28(9) applied to defendant employee, but did not apply to defendant company because it is a corporation — No abuse of discretion in denying plaintiff’s motion for leave to amend complaint to add count for punitive damages where record is devoid of evidence that defendant employee engaged in intentional misconduct or gross negligence
  • Insurance — Attorney’s fees — Assignee’s action against insurer to recover payment for construction work performed on insured property following hurricane damage — Court adopts magistrate’s report and recommendation concluding that Section 627.7152(10), Florida Statutes, which repeals assignee’s standing to recover attorney’s fees under section 627.428, does not apply in instant case where both issuance of policy and assignment agreement predated effective date of statute — Whether relevant date for purposes of applying statute is date policy was issued or date assignment agreement was entered into need not be resolved under circumstances — Motion to strike plaintiff’s claims for attorney’s fees is denied
  • Torts — Dog bite — Negligence — Sheriffs — Sovereign immunity — Action alleging deputy sheriff was negligent in handling K-9 that bit plaintiff while attending a public event — Trial court erred in dismissing complaint against sheriff on ground that action was barred by sovereign immunity — Although a plaintiff may not rely on section 767.04 when suing a state agency for a dog bite because it is a strict liability statute, a plaintiff may bring such a suit in common-law negligence — Complaint adequately stated a cause of action for negligence under common law principles — Court rejects argument that plaintiff placed himself in zone of risk by approaching area occupied by deputy and police dog, and that because deputy did not move in proximity to plaintiff there was no zone of risk created by conduct of deputy — Deputy created the zone of risk by patrolling the venue with his K-9 — Whether the deputy was walking around or standing still was irrelevant — Because plaintiff was in a public location he had the right to walk where he wanted, including right up to the deputy, and, unless warned by the deputy to move away, plaintiff had a reasonable expectation that the dog would not bite him — Lawsuit was not barred by sovereign immunity where, although the decision to patrol the public venue with K-9s may have been a discretionary function, the act of patrolling the venue with K-9s was operational

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 © 2022 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982