Esad Babahmetovic v. Scan Design Florida Inc/ Zenith Insurance Company , 176 So. 3d 1006 ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ESAD BABAHMETOVIC,
Appellant,
v. CASE NO. 1D14-2986
SCAN DESIGN FLORIDA INC/
ZENITH INSURANCE
COMPANY,
Appellees.
_____________________________/
Opinion filed October 8, 2015.
An appeal from an order of the Judge of Compensation Claims.
Ellen H. Lorenzen, Judge.
Date of Accident: October 9, 2013.
Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for Appellant.
William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A.,
Winter Park, for Appellees.
ON MOTION FOR REHEARING
PER CURIAM.
This cause is before us on Appellees’ motion for rehearing and rehearing en
banc. We grant the motion for rehearing, withdraw our prior opinion issued May 1,
2015, and substitute this opinion in its place. We deny the motion for rehearing en
banc.
In this workers’ compensation case, Claimant appeals an order of the Judge
of Compensation Claims (JCC) denying him a one-time change in authorized
treating physician, as permitted by section 440.13(2)(f), Florida Statutes (2013). For
the reasons set forth herein, we reverse the ruling.
Background
Claimant lifted a heavy box at work on October 9, 2013. His low back hurt,
so the Employer/Carrier (E/C) sent him to Fast Track Urgent Care and authorized
Fast Track to treat him. The provider at Fast Track diagnosed radiculitis and checked
the boxes on a Uniform Medical Treatment Status Reporting Form (Form DWC-25)
that indicated the “injury/illness for which treatment is sought” was “work-related.”
Fast Track also referred Claimant to Dr. Delgado, who first saw Claimant on
November 15, 2013. Dr. Delgado concluded Claimant had both a resolving lumbar
muscle sprain and, as a condition preexisting the date of the work accident,
degenerative disk disease. Dr. Delgado checked the same “work-related” boxes on
his DWC-25, but the same day he sent a letter to the E/C indicating the cause
“regarding the lumbar spine” was 60% the preexisting condition and only 40% the
“workplace injury.”
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On November 27, 2013, the E/C issued a Notice of Denial (Form DWC-12)
stating, under the heading “denied benefits,” “total claim denied,” and, under the
heading “reason for denial of benefits,” that the “industrial accident” is not the major
contributing cause (MCC) of the need for treatment. Both parties agree that this form
was intended to be a denial of compensability – that is, a statement that there was
never a compensable injury here.
The instant claim
Despite the Notice of Denial, Claimant asked for a one-time change in
authorized treating physician. The E/C denied the one-time change, giving the same
reasoning given in the Notice of Denial: that the industrial accident was not the MCC
of the need for treatment. When the matter came before the JCC, the parties asked
the JCC to consider whether the work accident was the MCC of not only the need
for treatment, but also the “injury” – in other words, to determine compensability.
They also asked the JCC to consider whether Claimant was entitled to the one-time
change despite the E/C’s denial of compensability – in other words, whether a
claimant can receive a one-time change where there was never a compensable injury.
The JCC drew several conclusions. The JCC stated, “[t]here must first be a
compensable accident and injury before an employee is entitled to any benefit
allowed in Chapter 440” – thus rejecting Claimant’s argument that he is entitled to
a one-time change without first having to prove he had suffered a compensable injury
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of any sort. The JCC found that “Dr. Delgado identified an injury from the accident
(a sprain) as well as a pre-existing condition (degenerative disc disease) which
combined to produce the potential need for medical care,” and that Dr. Delgado
opined the sprain was less than half of the cause of the “injury and need for care.”
(Emphasis added). The JCC then found both that “the accident was not the [MCC]
of the injury” and that “the accident was not the [MCC] of claimant’s need for
medical care.” Based on all of this, the JCC denied the one-time change.
Analysis
The JCC is correct that “[t]here must first be a compensable accident and
injury before an employee is entitled to any benefit allowed in Chapter 440” – with
one single exception: an advance payment under section 440.20(12), Florida
Statutes. See Lopez v. Allied Aerofoam/Specialty Risk Servs., 48 So. 3d 888, 889
(Fla. 1st DCA 2010). But the JCC erred in not recognizing the existence of a
compensable injury in this case. This error came about by the JCC’s conflating the
existence and cause of the injury – compensability – with the existence and cause of
the need for treatment. Compensability is a concept used to convey the idea that the
Florida Workers’ Compensation Law applies; it requires the presence of certain
elements described throughout chapter 440 by terms of art such as accident, injury,
arising out of work performed in the course and the scope of employment. See
generally Checkers Rest. v. Wiethoff, 925 So. 2d 348, 350 (Fla. 1st DCA 2006) (en
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banc) (explaining concept of compensability as “the occurrence of an industrial
accident resulting in injury”).
Causation, in workers’ compensation, is established by MCC, and MCC is a
concept that can potentially apply at two different stages of a determination of
entitlement to benefits: work must be the MCC of a compensable injury, and also –
where (as here) there is a preexisting condition – the compensable injury must be the
MCC of the need for treatment. 1 Compare § 440.09(1), Fla. Stat. (2013) (requiring
employer to pay compensation or furnish benefits if employee suffers accidental
compensable injury “arising out of work performed in the course and the scope of
employment”), and § 440.02(36), Fla. Stat. (2013) (defining “arising out of” by
stating that injury “arises out of employment if work performed in the course and
scope of employment is the major contributing cause of the injury”), with
§ 440.09(1)(b), Fla. Stat. (2013) (providing that if compensable work injury
“combines with a preexisting disease or condition to cause or prolong disability or
need for treatment,” employer need provide compensation or benefits only to extent
injury “is and remains more than 50 percent responsible for the injury as compared
1
This is the rationale underlying case law holding that “[o]nce compensability is
established, an E/C can no longer contest that the accident is the MCC of the injuries
at issue. It can only contest 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, 32 (Fla. 1st DCA 2010) (holding E/C must pay for treatment
as long as compensable condition remains MCC of need for treatment).
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to all other causes combined and thereafter remains the major contributing cause of
the disability or need for treatment”). Only the first of these MCC analyses factors
into a determination of compensability of the original injury.
Here, the JCC found the sprain (the workplace injury) and the degenerative
disk disease combined to produce the need for treatment. But such facts do not
preclude compensability – they merely implicate the possible availability of
particular medical and indemnity benefits. See § 440.15(5)(b), Fla. Stat. (2013) (“If
a compensable injury, disability, or need for medical care, or any portion thereof, is
a result of aggravation or acceleration of a preexisting condition, or is the result of
merger with a preexisting condition, only the disabilities and medical treatment
associated with such compensable injury shall be payable under this chapter . . . .”).
On the facts present in this case, it was not disputed that the sprain otherwise met
the requirements of compensability (e.g., an injury by accident arising out of and in
the course of employment). Given these facts, the JCC should not have applied an
MCC analysis to determine the existence of a compensable injury, because there is
no evidence (nor allegation) that the sprain was caused by degenerative disk disease
or anything other than work.
Because Claimant suffered a compensable injury and received treatment
therefor, he is entitled to a one-time change in treating physician as “an absolute
right” if he made a written request for such during the course of
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treatment. Providence Prop. & Cas. v. Wilson, 990 So. 2d 1224, 1225 (Fla. 1st DCA
2008). The E/C concedes that Claimant properly requested a one-time change; thus,
he is entitled to the one-time change he requested. We distinguish Falcon Farms v.
Espinoza, 79 So. 3d 945 (Fla. 1st DCA 2012), where this court reversed the award
of a one-time change, because in Falcon Farms there was no work-related injury at
all, only a finding that the claimant “presented no ‘persuasive medical evidence’ that
an injury arose out of employment,” which was not challenged on appeal. 79 So. 3d
at 946.
For the foregoing reasons, we reverse the order on appeal and remand to the
JCC for the award of a one-time change under section 440.13(2)(f).
REVERSED and REMANDED with instructions.
WOLF and RAY, JJ., CONCUR; BENTON, J., CONCURS WITH OPINION.
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BENTON, J., concurring in the judgment.
“When an E/C becomes aware that a claimant has medical needs [of which a
compensable injury is the purported major contributing cause], it should either pay
for them, pay and investigate under section 440.20(4), or deny
compensability.” Bynum Transp., Inc. v. Snyder, 765 So. 2d 752, 754 (Fla. 1st DCA
2000). In the present case, the employer or its insurance carrier accepted the injury
as compensable, without reservation. This election was binding. The statutory “pay
and investigate rule” requires:
Upon commencement of payment as required under
subsection (2) or s. 440.192(8), the carrier shall provide
written notice to the employee that it has elected to pay the
claim pending further investigation, and that it will advise
the employee of claim acceptance or denial within 120
days.
§ 440.20(4), Fla. Stat. (2013) (emphasis added). In order to invoke the benefits of
the pay and investigate rule, an employer or its carrier must give notice it is relying
on the pay and investigate provision at or before “commencement of payment.” Id.
“A carrier that does not deny compensability in accordance with s. 440.20(4) is
deemed to have accepted the employee’s injuries as compensable . . . .”
§ 440.192(8), Fla. Stat. (2013) (emphasis added).
In short, I join the judgment of the court on grounds the notice of denial
contesting the injury’s compensability came too late.
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