Franklin v. Northwest Airlines

• Decision Date: 02 February 2001
• Docket Number: No. 1D00-0535.,1D00-0535.
• Citation: 778 So.2d 418
• Parties: Lori FRANKLIN, Appellant, v. NORTHWEST AIRLINES and Liberty Mutual, Appellees.
• Court: Florida District Court of Appeals

778 So.2d 418

Lori FRANKLIN, Appellant, v. NORTHWEST AIRLINES and Liberty Mutual, Appellees.

No. 1D00-0535.

District Court of Appeal of Florida, First District.

February 2, 2001.

Christopher J. Smith of Yanger & Smith, P.A., Tampa, for Appellant.

James C. Delesie, Sr., of Smith, Clark, Delesie, Bierley, Mueller & Kadyk, Tampa, for Appellees.

BROWNING, J.

Lori Franklin, the claimant in this workers' compensation case, appeals the denial and dismissal of her claim. She contends that the judge of compensation claims (JCC) reversibly erred in finding that the appellees (the employer/carrier) were not estopped from denying compensability due to their failure to comply with certain statutory procedures and timetables. We reverse the dismissal order and remand with instructions to the JCC to enter an order awarding the benefits claimed at the final hearing.

On or about January 19, 1997, the claimant was a 33 year old reservations agent with over nine years' experience at Northwest Airlines. She allegedly suffered an industrial accident on or around that date when, seated at her work space, she leaned down to retrieve something from her purse and, twisting her body around on the ascent, she felt immediate, fairly severe pain and discomfort rippling through her side and back. Prior to this incident, the claimant had a rather long history of back problems, which had required some hospitalization and other treatment.

The claimant testified that she had not reported the alleged industrial accident at the time; in fact, she continued working and completed her work day. A day later, her pain worsened. On February 15, 1997, she filled out a form for family medical leave. Ultimately, she went to an orthopedic surgeon, Dr. Shim, and reported this essential history to him. An MRI revealed degenerative disc disease. Since then, the claimant has received considerable medical care, including a December 1997 lumbar facet joint rhizotomy, which was intended neurologically to desensitize the facet joint.

On April 1, 1997, or about 2 ½ months after the alleged injury, the claimant finally reported the incident as a compensable accident, but the record demonstrates that she has given various dates as the onset of her problems. The employer provided evidence demonstrating that the claimant was not on the job either on January 19, 1997, or on several of the other dates reported as the date of the injury. The JCC found "[i]t is highly likely that the claimant, at some later date, attempted to recreate the date and events of this onset with some difficulty." The claimant testified that she had waited so long to report the incident to her operations manager, Mr. Bechtold, because she had no knowledge of workers' compensation and the proper channels for notification. On the first day of April 1997, she signed an occupational injury/illness report alleging an unknown injury causing back pain. She indicated "mid-Jan. 97" as the time of the incident. The employer filed a first report of injury or illness on April 7, 1997, indicating a low back injury.

The workers' compensation statute relating to time for payment of compensation, and penalties for late payment, states in pertinent part:

(4) If the carrier is uncertain of its obligation to provide benefits or compensation, it may initiate payment without prejudice and without admitting liability. The carrier shall immediately and in good faith commence investigation of the employee's entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits. Upon commencement of payment, the carrier shall provide written notice to the employee that it has elected to pay all or part of the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120 day period.

§ 440.20(4), Fla. Stat. (1995).

Upon receiving the notice-of-injury form, the employer/carrier authorized medical treatment from early May 1997 at least through March 18, 1998, including authorization of anesthesiologist/pain management specialist Dr. Kabaria, an orthopedic clinic, and a physical therapy center. Compensation benefits for total temporary disability (TTD) or total permanent disability (TPD) were paid from February 4, 1997, through March 17, 1998. Permanent impairment benefits were paid from March 9, 1998, through June 22, 1998, based on Dr. Kabaria's conclusion that the claimant had reached maximum medical improvement on March 18, 1998. Mileage payments were made from February 14, 1997, through January 1999.

As early as April 9, 1997, the carrier's adjustor, Ms. Regan, acknowledged that the claimant had pre-existing back problems. While accepting the injuries as compensable, the adjustor felt there could be some question about compensability. The senior case manager noted that the employer/carrier might have a defense under the statute requiring an injured employee to give timely notice of an industrial accident. The employer/carrier never sent the "120 day letter" contemplated in section 440.20(4), Florida Statutes (1995). Authorization of medical services/treatment was denied as of September 22, 1998, when the employer/carrier announced, for the very first time, their position that the alleged injury was not causally related to employment and was not compensable. September 1998 is well beyond the 120 day period following "the initial provision of compensation or benefits."

On January 22, 1999, the claimant signed a petition for benefits stating that the date of accident was February 4, 1997, which date appeared in subsequent depositions and pleadings until, at the final hearing, the date was amended to January 19, 1997. The petition was filed on March 22, 1999. In this and/or subsequent petitions, claims were made for 1) reimbursement of $60.00 for a lumbar support pillow; 2) medical treatment in the nature of authorization of Dr. Kabaria and another anesthesiologist/pain management specialist, Dr. Derasari; 3)...