Tuesday, April 5, 2016

An Interesting Analysis of Compensability

In the 1985 board game-inspired movie Clue, we are treated to a summation of the crimes by Wadsworth (Tim Curry, who may or may not have been the butler). The movie is known for its four alternative endings, each as plausible, and ridiculous, as the last. In one, Wadsworth notes "communism was just a red herring," a line similarly uttered by Ms. Scarlett (Leslie Ann Warren) in an alternate ending. 

The Florida First District Court of Appeal last year rendered Esad Babahmetovic v. Scan Design Florida Inc. The Court's original opinion was published last May, but a motion for rehearing was filed. The Court denied a motion for the entire Court to hear the case (called en banc), but the panel of three judges did rehear the case, releasing the revised opinion on October 8, 2015. 

The case delineates distinctions between "compensability" and the need for "treatment." Compensability is a conclusion(s) regarding the "existence and cause of the injury." The Court explained that "compensability is a concept used to convey the idea that the Florida Workers' Compensation Law applies." Compensability "requires the presence of certain elements described throughout chapter 440" by various terms of art. If an injury is not compensable, according to the court, the workers' compensation law does not apply. 

But, the court noted, the "existence and cause of the need for treatment" is not the same analysis. Whether there is a need for treatment and whether that is "caused by work" is not dependent upon whether there has been a "compensable" accident/injury. That is, the court explains, the analysis of the need for medical care and treatment is independent of whether "the Florida Workers' Compensation Law applies." 

Some may see that analysis as confusing. Some might have erroneously concluded that the care and treatment provisions of Fla. Stat. 440.13 would only apply if "the Florida Workers' Compensation Law applies." The Babahmetovic decision seems to suggest a clarification to some. They suggest that this case seems to indicate that the law applies in some instances in which the law does not apply. 

The Court noted that "there must first be a compensable accident and injury before an employee is entitled to any benefit allowed in Chapter 440." The Court then clarifies, that there is "one single exception" to this rule. That is, people are entitled to an advance payment "under section 440.20(12)" regardless of whether there was a compensable accident and injury. Florida appears to be alone in providing advance payments to whomever asks for them, regardless of whether they were an employee, had an accident, or suffered an injury. 

Despite the characterization that the advance is the "one single exception" to a requirement that "there must first be a compensable accident and injury before an employee is entitled to any benefit allowed in Chapter 440," the Court explains in Babahmetovic that the employee is entitled to a one-time change of physician (arguably one-time change is a benefit afforded by Chapter 440), regardless of whether "compensability" has been established. Some have expressed confusion at this point, asking if that is a "second single exception," perhaps a fair question perhaps in light of the "one single exception" preface. 

In part, that is because the Court opinion recitation of the "compensability" analysis and its discussion of the trial Judge "conflating the existence and cause of the injury - compensability - with the existence and cause of the need for treatment" itself creates confusion for some. 

The issue in Babahmetovic is far simpler, and perhaps deceptively so. The worker did suffer an injury at work. Everyone in the case agreed with that. The result was a sprain to the back. The worker also had a pre-existing "degenerative disc disease" in the back. The question for the Judge and then for the court was deceptively simple: "was the work accident the major contributing cause of the need for treatment of the back sprain?" The answer to this was yes. As such, the workers was entitled to medical care for the back sprain. As such, the worker was entitled to a "one time change" in physicians for the back sprain. It seems that simple. 

The discussion of the "compensability" analysis, the inclusion of the curious precedent that an advance is appropriate regardless of employment or any other provision of Chapter 440, the "conflating the existence and cause of the injury" and the "existence and cause of the need for treatment (in broad context)" led to confusion in the opinion, and that seems to have lingered since. To some, the resulting discussion that the need for medical care and treatment is a question somehow independent of whether "the Florida Workers' Compensation Law applies" is also confusing. 

As Tim Curry and Leslie Ann Warren might say, "compensability was just a red herring." 

The confusion arguably results from terminology. Different wording, more specific wording, might help resolve the conflict. This is not about compensability of a "back injury" in its broadest context (within which there might be analysis of various factors, elements, and causes). The question here is about the compensability of the “back sprain,” which everyone in the case conceded is work-related and compensable. Once this distinction is drawn, some feel the issues is clarified. 

They suggest that the appropriate question was not “was the work accident the major contributing cause of the need for treatment of the back?" Instead, perhaps it would better have been: "what is the major contributing cause of the back sprain." When such a case reaches a point of determining indemnity benefits, there may be questions as to whether the back sprain or the disc disease is the major contributing cause of the disability. But that discussion would be for another day. In a medical care claim like this, the sprain admittedly occurred at work, the injured worker is therefore entitled to treatment for that sprain. That includes the change of physician for that sprain. This is because that sprain is compensable, and not because care is appropriate through some route (second single exception) alternative to compensability. 

There are those who suggest that the references to the advance statute, the "one single exception," or second "single exception," are simply confusing. What say you?

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