Wednesday, June 11, 2014

Case Law You Might have Missed

Some cases worth reading came out of the Florida First District Court of Appeal ("DCA") this week. A couple were noted in the workers' compensation newswires, but an interesting one was not. The first two were "per curium" decisions. According to Wikipedia*, this means that they are decisions of "the court (or at least, a majority of the court)" and are anonymous. 

In Brevard County School Board v. Acosta, the  Court elucidated on the "hindrance to recovery" doctrine. The injured worker had a right shoulder injury. She sought care for that, and for treatment to her left shoulder. There was no dispute that the left shoulder was unrelated to the work accident. She alleged however, that the "result from the left shoulder repair will be better if the left shoulder surgery is performed first." The medical expert testified consistently with that, but agreed that the "ultimate result from the right shoulder surgery would be unaffected by the order" in which the surgeries are performed. 

The trial judge concluded that the left shoulder procedure, or lack of it, was a hindrance to the recovery of the work injury, that is the right shoulder, and ordered that the Employer pay for the left shoulder surgery first. The DCA reversed and explained the "hindrance to recovery" doctrine, stating "The relevant inquiry is not whether the left shoulder surgery is medically necessary, but rather why it is medically necessary." 

The medical evidence supported that the need for left shoulder surgery was to avoid further injury to the left shoulder. Thus, the DCA reminded, the doctrine was not applicable here; "unless the purpose is to remove a hindrance to treating the compensable right shoulder injury, the doctrine does not apply." Had the testimony been that the "result from the right shoulder repair will be better if the left shoulder surgery is performed first" the outcome might have been different.

In Kroll v. United Parcel Service, the injured worker was denied temporary total disability benefits (TTD). The trial judge cited the limitation in Fla. Stat. 440.15(3)(c), which says that the eligibility for temporary benefits "terminates on the expiration of 401 weeks after the date of injury." The injured worker argued that the term "temporary benefits" as used in this section do not apply to TTD benefits. 

The Court concedes that Fla. Stat. 440.15(3)(c) is labelled "permanent impairment and wage loss benefits." Thus, arguably applicable to those benefits and not the commonly thought of temporary indemnity benefits found in Fla. Stat. 440.15(2)(TTD) and Fla. Stat. 440.15(4)(temporary partial disability, or TPD). On that note, the Court agreed that the limitation on temporary benefits might be "somewhat out of place" in the statute, but concluded that "the Legislature's intent that (eligibility to) such benefits be limited to 401 weeks" cannot be ignored.

Neither of these are unanimous decisions, and the dissenting opinions are likewise interesting reading.

The same day, the Court rendered F.T.M.I. Operator v. Limith. This case did not show up on the workers' compensation news wires. Here the Employer filed an extraordinary writ, called certiorari, with the Court. This asked that the Court intervene regarding a non-final order of the Judge of Compensation Claims, denying a motion to dismiss for failure to prosecute and a motion to compel Claimant to file a verified motion for fees. 

In most instances, parties are able to seek review by Florida's appellate courts only after a final order has been rendered by the trial judge. Then, the appellate court can determine if there was error and correct any such error. The term "extraordinary" is instructional. These writs will only be effective when the party seeking relief can demonstrate why it is critical for the appellate court to intervene in a situation before it reaches a final order. 

The Employer argues in Limith that denial of its motions caused irreparable harm because the Employer thereby is “forever stripped of its right to assert the statute of limitations" as a defense. Essentially this argument is that with no adjudication of fees, and the issue of fees having been reserved, the statute cannot run under the Court's analysis in Longley v. Miami Dade School Board in 2013. 

The Court recognized the "conundrum faced by the E/C," but stated that the "solution to this problem (assuming one is needed) lies not with an expansion of this court’s certiorari jurisdiction but rather with an amendment to chapter 440 or the 60Q rules to establish deadlines for the adjudication of fee claims." 

The Petition for Writ of Certiorari was denied by the Court. It stated that the harm alleged could be "reviewed on subsequent plenary appeal" and that therefore the record did not demonstrate "irreparable harm" to the Employer that would justify the Court granting certiorari. This third case is interesting reading as regards the process of extraordinary writs.

* Wikipedia is accepted as a definitive authority by the Florida First District Court of Appeal, see Truje-Perez v. Arry's Roofing.

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