Sullivan v. NUC02, LLC

• Decision Date: 09 December 2020
• Docket Number: No. 1D19-3275,1D19-3275
• Parties: Joe SULLIVAN, Appellant/Cross-Appellee, v. NUC02, LLC/BROADSPIRE, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

308 So.3d 659

Joe SULLIVAN, Appellant/Cross-Appellee,

v.NUC02, LLC/BROADSPIRE, Appellees/Cross-Appellants.

No. 1D19-3275

District Court of Appeal of Florida, First District.

Date of Accident: August 29, 2016.

December 9, 2020

Keith C. Warnock of Keith C. Warnock, P.A., Daytona Beach; and Bill McCabe of William J. McCabe, P.A., Longwood, for Appellant/Cross-Appellee.

Daniel Baquerizo, Lauren M. Levy and Adam Levy of Levy & Levy, LLC, Tampa, for Appellees/Cross-Appellants.

Per Curiam.

Claimant appeals the Judge of Compensation Claims’ (JCC's) order apportioning his claim for impairment benefits (IBs) due under section 440.15(3)(c), Florida Statutes (2016), as well as his claim for medical care. The Employer/Carrier (E/C) cross-appeal the JCC's award of IBs based on a total permanent impairment rating (PIR) of 18% and his authorization of Dr. Steen to treat an aggravation of a preexisting shoulder condition. Because we find that the E/C, by operation of the 120-day rule in section 440.20(4), Florida Statutes (2016), waived the right to contest the compensability of the preexisting condition, we reverse the JCC's application of apportionment. At the same time, we affirm the issues on cross-appeal.

I.

In August 2016, Claimant injured his right shoulder in a compensable workplace accident. The initial MRI scan revealed significant preexisting changes and a massive rotator cuff tear

. Dr. Leung, an authorized treating provider, recommended surgery. The E/C subsequently authorized Dr. Steen, an orthopedic surgeon, as Claimant's one-time change of physician under section 440.13(2)(f), Florida Statutes (2016). Dr. Steen performed right shoulder surgery in February 2017.

In January 2018, Dr. Steen placed Claimant at maximum medical improvement with an 18% PIR. In mid-March 2018, Dr. Steen signed a letter prepared by the E/C's attorney stating that the workplace accident aggravated Claimant's preexisting condition and that an apportionment of "60%/40% is reasonable." A few days later, Dr. Steen checked off the E/C's form indicating that the preexisting condition, not the workplace injury, was the major contributing cause (MCC) for any future medical care or work restrictions.¹ The next month, the E/C deauthorized Dr. Steen from providing further care and reduced Claimant's IBs under the apportionment provision of section 440.15(5)(b), Florida Statutes (2016).

Claimant filed petitions for benefits seeking full payment of IBs based on the 18% PIR and authorization of medical care with Dr. Steen for the right shoulder. In their defenses, the E/C asserted that IBs were properly apportioned based on Dr. Steen's opinion, that further orthopedic care was either not due or should be apportioned, and that the compensable workplace injury, which was limited to an aggravation of the preexisting condition, is no longer the MCC of the need for medical care. In response to the MCC defense, Claimant raised waiver under the 120-day rule in section 440.20(4).

II.

During the course of litigation, the JCC appointed Dr. Torres as an expert medical advisor (EMA) to address disagreements in medical opinion on certain issues, including apportionment, among Dr. Steen, Dr. Kollmer (Claimant's independent medical examiner (IME)), and Dr. Friedman (the E/C's IME). See § 440.13(9)(c), Fla. Stat. (2016) (providing that, when there is disagreement in medical opinion, the JCC must appoint an EMA, whose opinion is presumptively correct). Dr. Torres opined that the workplace accident permanently aggravated the preexisting condition and is the MCC of the need for treatment to include palliative care, but not future shoulder replacement surgery. He stated that authorization of either a pain management physician or an orthopedic surgeon would be appropriate to provide palliative care. He attributed 70% of the right shoulder condition to the workplace injury and 30% to the preexisting condition; nevertheless, he opined that 100% of the work restrictions were caused by the workplace injury.

Dr. Torres testified that the objective evidence of the preexisting condition was apparent before surgery was performed and that his "assumption would be that [the carrier was] aware of [Claimant's] pre-existing condition and agreed to provide the treatment based on the opinions of the treating physicians at the time." He indicated he did not know of any preexisting impairment and, in response to the JCC's specific question, would not add any additional PIR for the preexisting condition to the 18% PIR previously assigned by Dr. Steen. Although Dr. Torres assessed a total PIR of 12%, he could not say that Dr. Steen's 18% PIR was incorrect as it was based on the measurements Dr. Steen had at the time.

The JCC accepted Dr. Torres's EMA opinions on apportionment as presumptively correct and awarded IBs based on a 13% PIR (70% of the total 18% PIR). In addition to the apportioned IBs, the JCC awarded the authorization of Dr. Steen, but only to provide palliative care for the aggravation of the preexisting condition. He rejected Claimant's argument that, because the E/C accepted compensability of the preexisting condition, as well as its aggravation, under section 440.20(4), apportionment is not available here.

III.

To the extent an issue turns on resolution of the facts, our review standard is CSE; to the extent it involves an interpretation of law, the standard is de novo. See Benniefield v. City of Lakeland , 109 So. 3d 1288, 1290 (Fla. 1st DCA 2013).

Under section 440.09(1), the "accidental compensable injury must be the major contributing cause [MCC] of any resulting injuries." Paragraph (b) of this section further provides that when a work-related injury combines with a preexisting disease or condition to cause or prolong disability or the need for treatment, the E/C must pay benefits "only to the extent that the injury arising out of and in the course of employment is and remains more than 50 percent responsible for the injury as compared to all other causes combined and thereafter remains the [MCC] of the disability or need for treatment." § 440.09(1)(b), Fla. Stat. (2016). This court has previously recognized that section 440.09(1)(b) applies when the need for treatment or benefits is caused by the combination of an employment accident with a preexisting injury or condition that is unrelated to the accident. E.g., Pizza Hut v. Proctor , 955 So. 2d 637 (Fla. 1st DCA 2007).

Here, the JCC accepted the E/C's defense that the workplace injury was limited to an aggravation of a preexisting condition and was no longer the MCC of the need for benefits. He rejected Claimant's waiver argument based on section 440.20(4), which states:

If the carrier is uncertain of its obligation to provide all benefits or compensation, 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 as required .... Additionally, the carrier shall initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable, without prejudice and without admitting liability. ... A carrier that fails to deny compensability within 120 days after the initial provision of benefits or 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.

According to Claimant, the E/C accepted, not just the aggravation, but also the preexisting condition as compensable, by providing related benefits and failing to deny compensability of the same before the end of the 120-day period.

As this Court previously explained:

Once aware of the need for medical benefits for a particular condition or injury, the carrier has three options: pay, pay and investigate within 120 days, or deny. Bynum Transp., Inc. v. Snyder , 765 So. 2d 752 (Fla. 1st DCA 2000) ; see also Kestel v. City of Cocoa , 840 So. 2d 1141, 1142 (Fla. 1st DCA 2003). A condition or injury may be deemed compensable if the carrier begins payment for that condition or injury and fails to investigate within the 120 days, or fails to deny compensability within that time period. Kestel , 840 So. 2d at 1142.

Teco Energy, Inc., v. Williams , 234 So. 3d 816, 822 (Fla. 1st DCA 2017). The correct analysis for the application of the 120-day rule requires the following findings: (1) the date the E/C first provided the benefits; (2) the specific identity of the injury for which the benefits were provided; and (3) whether the E/C timely denied compensation of that injury within the 120-day period immediately following the first provision of benefits for that injury. Id . (citing Sierra v. Metro. Protective Servs. , 188 So. 3d 863, 867 (Fla. 1st DCA 2015) ).

In this case, the JCC identified the correct analysis and made the following relevant findings:

(1) ... the carrier first provided benefits, in the form of authorized medical treatment, for the aggravation of the pre-existing right shoulder degenerative condition, on September 16, 2016, from Dr. Brien Leung; (2) ... the identity of the condition for which treatment was authorized and provided included a full thickness tear of the supraspinatus tendons with moderate atrophy in both muscles, thickening and diffuse tendinitis

in the subscapularis tendon, arthrosis and spurring on the right acromioclavicular joint, and a torn retracted biceps tendon based on the MRI performed September 26, 2016. The accepted authorized condition in the Pretrial was "aggravation of a pre-existing right shoulder degenerative condition"... [;] (3) The [E/C's] denial following the receipt of Dr. Friedman's IME report of ...