Kelley Kronenberg - In the Know – Workers’ Compensation - February 2022

IN THE

FEBRUARY 2022

NOW

WORKERS’ COMPENSATION EDITION IN THIS ISSUE: • • • •

Physician Deauthorization Preexisting Condition Retroactive Indemnity Misrepresentation

EDITOR’S LETTER

WELCOME Joshua T. Higgins, Esq. Editor, and Business Unit Leader/Partner

We make a living by what we get, but we make a life by what we give.

–Winston Churchill

In 2019, pre-COVID, there were 63,537

to more companies having workers come back

workers’ compensation cases filed in Florida.

to the office, as well as due to the availability of

In 2020, there were 75,380 cases filed. In

vaccines.

2021, there were 61,982 cases filed. While statistics always have many interpretations

While it may be too early to tell what type of

and takeaways, what these numbers suggest is

effect COVID had on the workers’ compensation

that in 2020, the tremendous increase in cases

industry from a claims and financial perspective,

was directly attributable to COVID, despite

and whether this effect will be short-lived or

many people working from home at some

long-lived, what the statistics do tend to show

point in time during the year, as a large portion

is that from a workers’ compensation claim

of the cases filed were COVID claims. In 2021,

standpoint, claims are trending back towards

the number of cases filed was back to a normal

pre-COVID levels.

pre-COVID figure, which could be attributable

TABLE OF

CONTENTS PHYSICIAN DEAUTHORIZATION Mudd v. Trees, LLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-6 OJCC Case No. 21-008524RLY (FL.Off.Judge.Comp.Cl. January 3, 2022)

PREEXISTING CONDITION Blanco v. City of Miami Beach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6-8 OJCC Case No. 21-015908JIJ (FL.Off.Judge.Comp.Cl. January 12, 2022)

RETROACTIVE INDEMNITY Benson v. Brenntag Mid-South, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8-9 OJCC Case No. 17-014003MAM, 2018 WL 6931452 (FL.Off.Judge Comp.Cl. December 28, 2018)

MISREPRESENTATION Village Apartments v. Hernandez . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 856 So.2d 1140 (Fla. 1st DCA 2003)

COMPLIMENTARY CEU CREDITS FOR YOUR BUSINESS! . . . . . . . . . . . . . 11 CONTRIBUTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-13 HELPING YOU STAY AHEAD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-15 AWARDS AND ACCOLADES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17 FIRM OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19

4 | IN THE

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Mudd v. Trees, LLC OJCC Case No. 21-008524RLY (FL.Off.Judge.Comp.Cl. January 3, 2022)

KK TAKEAWAY: The deauthorization of an authorized treating physician does not eliminate, discount, or negate any treatment, referrals, or recommendations that existed while the physician was authorized.

BACKGROUND: On January 3, 2022, JCC Young issued a Final Compensation Order on the Claimant’s request for authorization of cognitive behavioral therapy, multi-disciplinary pain management, acupuncture, and an evaluation with a urologist, pursuant to the recommendation of authorized physician Dr. Christopher Reyher. The Employer/Carrier defended against these claims asserting that Dr. Reyher was no longer the authorized physician of the claimant, as he requested a one-time change of physician, and had been authorized to treat with Dr. Alsabbagh pursuant to same. Thus, the Claimant was not entitled to the benefits requested as they were from a de-authorized physician and the de-authorization of the original physician results in only one (1) authorized physician.

JCC Young agreed with the Employer/ Carrier’s assertion that the Claimant can only have one (1) authorized treating physician per specialist at a time. However, he found that the de-authorization of an authorized treating physician does not “eliminate, discount, or negate any treatment, referrals, or recommendations” that were made while IN THE

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the physician was authorized. Thus, Dr. Reyher’s opinions were still admissible, valid, and supported by competent substantial evidence.

had accepted compensability of a temporary

Based upon same, JCC Young ultimately found that the Claimant’s request for multidisciplinary pain management and evaluation by a urologist were medically necessary and the Major Contributing Cause (MCC) of the need for same was the work accident. The requests were granted for the Claimant.

automobile accidents that predated the

exacerbation of a preexisting and personal lumbar condition, and that the MCC of the Claimant’s lumbar disc herniations were compensable January 1, 2021 work accident.

It further contended that the requested procedure was not medically necessary or causally related to the work accident, and that the MCC of the need for the procedure is the Claimant’s preexisting lumbar condition.

In response, the Claimant asserted that the

Employer/Carrier

failed

to

deny

compensability within 120 days of the first

Blanco v. City of Miami Beach OJCC Case No. 21-015908JIJ (FL.Off.Judge.Comp.Cl. January 12, 2022)

KK TAKEAWAY: An Employer/Carrier does not waive its right to contest Major Contributing Cause (MCC), and need not demonstrate a break in the causal connection chain pursuant to the 120-day rule, when it (1) never accepted compensability or provided benefits for a preexisting personal condition, and (2) there is no evidence that shows the Employer/ Carrier was placed on actual or constructive notice of the preexisting personal condition.

provision of benefits, waived the right to contest MCC, and failed to establish a break in the chain of causation.

JCC Jacobs began an analysis of the 120-day issue, which required the following findings: “(1) the date the E/C first provided benefits for an injury; (2) the identity of the specific injury for which benefits were provided; and (3) whether the E/C timely denied compensability of the injury for which it provided benefits i.e., within the 120–day period immediately following the initial provision of benefits for the specific injury.”

In his analysis, JCC Jacobs found that the Employer/Carrier accepted compensability of

a

temporary

exacerbation

to

the

BACKGROUND:

preexisting chronic lumbar condition and

On January 12, 2022, JCC Jacobs issued a Final Compensation Order on the Claimant’s request for authorization of BVN ablation (a basivertebral nerve root ablation of L5 and S1) recommended by the authorized treating orthopedic spinal surgeon, Dr. Jonathan Hyde. The Employer/Carrier asserted that it

first provided benefits to the Claimant on

6 | IN THE

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January 1, 2021 for same. The Employer/ Carrier never accepted compensability or provided benefits for anything other than a temporary exacerbation of a preexisting lumbar spine condition.

Additionally, the

Claimant failed to establish when the Carrier

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received medical records to place the

Compensation Claims cannot find that

carrier on actual or constructive notice to

indemnity would be due or owing during this

initiate an investigation into compensability

retroactive period.

of the Claimant’s conditions related to the accidents that predated the January 1, 2021

BACKGROUND:

work accident. Based upon the Employer/

Judge of Compensation Claims Massey

Carrier’s acceptance of compensability of

found that a Claimant had reached MMI.

the temporary exacerbation only, and the

He noted that even if he had not found

Claimant’s failure to establish any evidence

that the Claimant had reached MMI, the

that the Employer/Carrier was obligated to

uncontroverted medical evidence was that

investigate and deny an unrelated condition,

the Claimant had continuously been released

the Employer/Carrier did not have any

to work full-duty with no restrictions. JCC

burden to demonstrate a break in the casual

Massey acknowledged that it is possible

connection chain. For these reasons, JCC

for an IME or other physician to assign

Jacobs

work restrictions retroactively, but that the

rejected

the

Claimant’s

waiver

Claimant IME in this case only testified as to

argument.

JCC Jacobs ultimately found that the Claimant sustained

a

exacerbation

compensable of

a

temporary

preexisting

lumbar

spine condition and Claimant’s preexisting condition, not the compensable injury, is the major contributing cause of the need for the basivertebral nerve ablation. He therefore denied the Claimant’s request for same.

the Claimant’s condition as of the date of the IME. He did not provide an opinion (nor was he asked) as to whether these restrictions would apply retroactively.

As such, JCC

Massey found that he could only interpret the opinions of the Claimant IME to have application prospectively (from the date of the IME forward), as opposed to retroactively (prior to the IME). In making this finding, JCC Massey relied on longstanding binding case law authority from the First District Court of Appeal; specifically, the case of Massey Services., Inc. v. Knox, 131 So.3d 797 (Fla. 1st

Benson v. Brenntag Mid-South, Inc. OJCC Case No. 17-014003MAM, 2018 WL 6931452 (FL.Off.Judge Comp.Cl. December 28, 2018)

KK TAKEAWAY: If a physician does not render an opinion about a claimant’s work status retroactive to the first office visit or IME, a Judge of 8 | IN THE

NOW

DCA 2013).

IN THE

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Village Apartments v. Hernandez 856 So.2d 1140 (Fla. 1st DCA 2003)

KK TAKEAWAY: When a claimant gives inaccurate information pertaining to his accident or medical history, or current injuries, these responses are made by the claimant in support of his claim for benefits.

BACKGROUND: At Final Hearing, a JCC did not find that the Claimant committed misrepresentation because there did not exist a written misrepresentation by the Claimant. The First District Court of Appeal reversed this ruling, based upon a finding that the JCC clearly misconstrued the requirements necessary to invoke the sanctions provided by section 440.09(4), which is the Florida Statute used to assert fraud or misrepresentation.

The First District Court of Appeal went on to say that “Under most circumstances, accurate medical histories, evidence of prior accidents, and statements regarding the 10 | IN THE

NOW

extent of current injuries are relevant and material to a workers’ compensation claim.

These statements are relevant and material whether made to health care providers, or during testimony given at depositions or the merits hearing. In a workers’ compensation case, a claimant’s responses to inquiries regarding his prior accidents, current injuries, or medical history are made in support of his claim for benefits.”

In this particular case, the Claimant testified three times during two depositions that he had no prior automobile accidents, which was false, as the Claimant had been involved in at least three prior accidents, with the most recent being only eight months prior to the first deposition. The First District Court of Appeal indicated that “motor vehicle accidents tend to be memorable.” As the Claimant had made false oral statements, the First District Court of Appeal found that the JCC misapplied the law by focusing only on written statements, and reversed the JCC’s Final Compensation Order.

COMPLIMENTARY CEU CREDITS FOR YOUR BUSINESS! Our Workers’ Compensation attorneys are happy to present seminars to bring you and your teams up to speed. We cover many topics to assist you on claims handling and to keep you up-to-date on developments of the law.

Please see our new and improved WC course list and let our firm know if your company is interested.

• This is Workers’ Comp - This is Workers’ Comp on Drugs (1HR) • Major Contributing Cause in Florida Workers’ Compensation (1HR) • FL Workers’ Compensation 101 (1HR) • FL Workers’ Compensation 101 (2HRS) • Catastrophic Claim Handling: Investigation, Management, Litigation & Settlement (1HR) • Proving and Disproving Compensability - From Definitions to Defenses (2HRS) • Burdens of Proof for Compensability in Workers Compensation Claims (1HR) • Establishing Compensability and the Exceptions Thereto (1HR) • FL Workers’ Compensation Deadlines & Timeframes (1HR) • Adjusting Depositions - Mastering the Art of Testifying (1HR) • Return to Work Policies Make Cents (1HR) • Accident Investigations (1HR) • 4 HR Law & Ethics Update (4HRS) • “Arising Out Of” & “Course and Scope - What, How, Why are JCC’s Analyzing Them Now (1HR) • Top Ten Workers’ Compensation Cases of 2020 (1HR) • Covid 19 - Workers’ Compensation Legal Issues and Strategies (1HR) • Covid 19 - A One Year Retrospective (1HR) • The Challenges of the One Time Change Statute (1HR) • Issues w/ Florida Claims Admin Statute (1HR)

CLICK TO REGISTER Register to select a course and coordinate a date and time for one of our WC Courses!

If you have questions or would like more information, please reach out to marketing@kelleykronenberg.com IN THE

NOW | 11

MEET THE

CONTRIBUTORS Associated General Contractors (AGC), for which he was instrumental in having the Fort Lauderdale

Joshua T. Higgins, Esq.

office of Kelley Kronenberg designated as the host

Editor and Business Unit Leader/Partner

for the meetings in South Florida, and he is the legal

Email Joshua T. Higgins

advisor to the Safety Alliance for Excellence (SAFE) since its inception. He assists his clients daily in all aspects of claims handling, both prior to and after litigation has begun, and has handled complex matters through trial on numerous occasions, with

Joshua Higgins is a Business Unit Leader and Partner at Kelley Kronenberg where he focuses his practice on Workers’ Compensation defense.

He has previous experience handling employment law matters, OSHA, Police Professional Litigation, Correctional Healthcare, and Civil Rights claims.

a high percentage of success.

Joshua is a popular and frequent writer and presenter on various workers’ compensation issues, both in Florida and on a national level. For his success and reputation, he has been named a Florida Super Lawyers Rising star for 2020 and 2021 (bestowed

The team that Joshua leads comprises of nine (9)

on less than 2.5% of attorneys in Florida), was

people (attorneys, paralegals, and legal assistants),

named a 2020 and 2021 Top Lawyer in workers’

which collectively have over 90 years’ experience

compensation by Fort Lauderdale Illustrated (one

handling workers’ compensation matters in Florida.

of only two defense attorneys on the list), and was

Joshua handles workers’ compensation claims for a

named a 2022 Best Lawyers in America: Ones to

wide array of industries, for a clientele that ranges

Watch by U.S. News & World Report. Joshua is

from multi-billion companies to small employers.

also rated AV Preeminent by Martindale-Hubbell,

One of the primary industries Joshua handles

based upon peer reviews, which indicates that he

workers’ compensation claims for is the construction

has achieved the highest professional and ethical

industry. He represents general contractors and

standards and is the highest rating a lawyer can

subcontractors of all sizes, and is enmeshed in the

receive.

construction industry of South Florida. He is an

Prior to joining the firm, Joshua worked as an

active member of the Construction Association of

Assistant State Attorney at the State Attorney’s

South Florida (CASF), where he has been on the

Office, 17th Judicial Circuit, in both the felony trial

Young Leaders Committee for several years (and

unit and county court division. While there, Joshua

the firm is the legal advisor to), he is involved in the

tried more than 30 bench trials and 22 jury trials,

12 | IN THE

NOW

with his last trial featured on local Fox news.

Coast to Coast Legal Aid of South Florida doing

During law school at Nova Southeastern University,

foreclosure defense for indigent elderly citizens.

Joshua served for two years as the Chairperson of

Prior to entering law school, Joshua obtained his

Administration for the Moot Court Honor Society,

undergraduate degree magna cum laude from the

a Staff Member for the Inter-American Center for

State University of New York at Buffalo, where he

Human Rights, and the Secretary for the National

was selected for induction into the Phi Beta Kappa

Security and Law Society. He received a perfect

Society, received English Departmental Honors, and

score from the Chief Justice in the first round of the

was listed in Who’s Who Among American College

ABA National Appellate Advocacy Competition, and

Students. Additionally, Joshua was chosen as a

placed in the top 8 out of more than 125 students

Renaissance Scholar, an award bestowed on less

in the Feinrider Moot Court Competition. Further,

than 4% of graduates that year (only 82 students

Joshua was one of 40 law students selected

out of a class size of more than 2500), for those

nationwide as a summer fellow for the Florida

exhibiting scholarly excellence in at least two widely

Bar Foundation, which resulted in him working at

disparate areas of study.

Prior to joining the firm, he gained experience in

Brandon T. Haas, Esq. Associate Attorney Email Brandon Haas

Insurance Defense Litigation while working as a Law Clerk for a boutique Fort Lauderdale firm.

Brandon received his Bachelor of Science degree from the University of Central Florida and went on to earn his Juris Doctor degree, summa cum laude, from Nova Southeastern University Shepard

Brandon Haas is an Attorney at Kelley Kronenberg

Broad College of Law where he regularly made the

where he assists in handling matters related to

Dean’s List and was both a Junior Associate and

Workers’ Compensation.

Executive Editor for Nova Law Review. While in

Brandon Haas is an Attorney in the firm’s Fort

law school, he was a Legal Intern for the Broward

Lauderdale office where he assists in handling

County Environmental and Consumer Protection

matters related to Workers’ Compensation.

Division and served as a Teaching Assistant.

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HELPING YOU

STAY AHEAD

BLOGS

Hiring Choices Made Out of Desperation May Lead to Debacles Amy Siegel Oran. It is hard to pinpoint exactly why it is so difficult to find good employees these days; […]

Movies Speak to Me in Legalese By: Amy Siegel Oran. We all have our favorite movies, a top-five list of films you’ve seen so many times you […]

CLICK TO READ MORE

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Business Workplace Health & Safety Checklist: What Should Employers Expect with New Delta Variant Cases Rising?

By: Meg Bentley. As the number of COVID-19 cases declined last spring, Illinois businesses reopened their doors […]

20 Years of Wisdom in 5 Bullets: Tips for Law Graduates By: Amy Siegel Oran. On this day, 20 years ago, I was worrying about law school finals and the upcoming […]

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Mental Health in the Workplace – Post Pandemic Panic By: Amy Siegel Oran Florida workers’ compensation law does not cover purely psychological trauma; the emotional condition must be brought […]

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14 | IN THE

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6 Key Points to Defend, Manage, and Settle Catastrophic Claims

By Amy Siegel Oran I recently had the pleasure of presenting on the topic of defending, managing, […]

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WEBINARS COVID-19 in 2021 Kelley Kronenberg Partners Adam Kemper and Joshua Higgins present COVID-19 in 2021 with Principal Partner/ Chief Financial Officer, Heath Eskalyo as the moderator. The webinar, COVID-19 in 2021, provides updates on the latest applicable workplace guidelines and for practice.

CLICK TO WATCH

PUBLICATIONS Don’t Be A Discovery Dinosaur HR Florida Newswire

Telecommuting Employees and the Potential for Workers’ Compensation Claims

Amy Siegel Oran

HR Florida Newswire

CLICK TO READ MORE

Indira Marin CLICK TO READ MORE

Guest column: Florida’s minimum wage increase raises workers’ compensation cost

What The Telecommuting Trend Could Mean for Florida Workers’ Comp Claims

Tampa Bay Business Journal

Insurance Journal

Amy Siegel Oran

Indira Marin

CLICK TO READ MORE

CLICK TO READ MORE

Yes, employees required to get vaccinated for COVID-19 can file a workers’ compensation claim for vaccine adverse effects

Does Workers’ Comp Cover an Employee’s Reaction to a COVID-19 Vaccine?

Verify

SHRM

Joshua Higgins

Joshua Higgins

CLICK TO READ MORE

CLICK TO READ MORE

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AWARDS AND

ACCOLADES FIRM AWARDS Kelley Kronenberg has been the recipient of numerous awards and honors both firm-wide and for a number of our practices, including individual accolades. Below is a select list of recognition and awards:

2021

Best Midsize Law Firms To Work For

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Largest Law Firms”

Ranked amongst the “Best Law Firms”

Ranked amongst the “Largest Law Firms”

Named as a “Business of the Year” and “Top 100 Private Companies”

Best Multi-Practice Business Law Firm – USA

2021 “Diversity Team” winner

Ranked amongst the “Largest Law Firms”

16 | IN THE

Fastest-Growing Private Companies in America

NOW

WC ATTORNEY AWARDS

Martindale Hubbell AV Preeminent Rating

Best Lawyers in America: Ones to Watch

Karen M. Gilmartin, Raymond L. Grant, Joshua T. Higgins, Steven L. Scharf, Amy Siegel Oran

Joshua T. Higgins Amy Siegel Oran

Florida Super Lawyers “Rising Stars”

South Florida Legal Guide “Top Lawyers”

Joshua T. Higgins

Amy Siegel Oran Karen Gilmartin

Illinois Super Lawyers “Rising Stars” Julianna Walo Executive Women of the Palm Beaches Foundation Women in Leadership Amy Siegel Oran

Fort Lauderdale Illustrated “Top Lawyer” Joshua T. Higgins

WOMEN IN THE LAW Best Lawyers “Women in the Law”

Girl Scouts of Southeast Florida, Emerald Award, “Risk Taker” Amy Siegel Oran

Amy Siegel Oran IN THE

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A Firm Built on Relationships KELLEY KRONENBERG IS A MULTI-PRACTICE BUSINESS LAW FIRM.

with over

400

Employees

more than

175 Attorneys

the convenience of

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Founded in 1980, the firm is one of the fastest-growing law firms in Florida and amongst the largest in the U.S. The firm serves all types and sizes of public and private companies, including small businesses and individuals nationwide.

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