Teco Energy, Inc. v. Williams, CASE NO. 1D17–0233

• Citation: 234 So.3d 816
• Decision Date: 19 December 2017
• Docket Number: CASE NO. 1D17–0233
• Parties: TECO ENERGY, INC. and Teco Services, Inc., Appellants, v. Michael K. WILLIAMS, Appellee.
• Court: Court of Appeal of Florida (US)

234 So.3d 816

TECO ENERGY, INC. and Teco Services, Inc., Appellants,

v.Michael K. WILLIAMS, Appellee.

CASE NO. 1D17–0233

District Court of Appeal of Florida, First District.

Opinion filed December 19, 2017

Rehearing Denied February 5, 2018

Gwen G. Jacobs of Bennett, Jacobs, & Adams, P.A., Tampa, for Appellants.

Laurie Thrower Miles of Miles and Parrish, P.A., Lakeland, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellee.

M.K. THOMAS, J.

Teco Energy, Inc. and Teco Services, Inc. ("E/C"), appeal a final order awarding compensability of a total knee replacement for Michael Williams ("Claimant") and related attorney fees and costs. The E/C argues the Judge of Compensation Claims ("JCC") erred by, 1) barring, as a matter of law, its defense of major contributing cause ("MCC"); and 2) applying, sua sponte , the "120–Day Rule" pursuant to section 440.20(4), Florida Statutes, as a limitation of available defenses. We agree and reverse.

Factual & Procedural History

On April 25, 2013, Claimant, a journeyman electrician, experienced pain in his left knee after slipping on the step of a pick-up truck at work. The E/C accepted compensability of the left knee injury and authorized medical care with Dr. Morse, an orthopedic surgeon. In February of 2011, Dr. Morse treated Claimant for a non-work related injury to the right knee, which required surgery. During that treatment, the doctor also examined the Claimant's left knee. Dr. Morse noted Claimant's left knee symptoms in 2011 included significant medial compartment pain, suggestive of either arthritis or a preexisting tear, but the doctor saw no need for treatment of the left knee at that time.

When Dr. Morse examined Claimant after the April 25, 2013, workplace injury to the left knee, he reported significant preexisting left knee arthritis as confirmed by X-rays and an MRI. When compared to the 2011 examination, Claimant demonstrated more symptoms for grinding and pain behind the left kneecap. However, Claimant's symptoms were concentrated in the medial joint line which correlated with an acute injury of a medial meniscal tear. Dr. Morse recommended left knee surgical repair, and indicated seventy percent of the need for surgery was related to an aggravation from Claimant's underlying work injury, and thirty percent was related to preexisting left knee arthritis.

The E/C authorized the left knee surgery. According to Dr. Morse, the surgery revealed minimal arthritis in the medial joint line and moderate arthritis behind the kneecap. Following the surgery, Dr. Morse placed Claimant at maximum medical improvement ("MMI") effective March 20, 2014, and assigned a three percent permanent impairment rating. As of the MMI date, Claimant's left knee was asymptomatic regarding the medial joint line with minimal symptoms of mild achiness associated with the arthritis.

At the next office visit, almost a year later, Dr. Morse administered an injection to Claimant's left knee due to complaints of occasional aches and pain. In the medical record documenting the visit, Dr. Morse detailed the complaints were associated with Claimant's arthritis and activity level. In the Uniform Medical Treatment/Status Reporting Form (DWC–25) completed on March 12, 2015, Dr. Morse noted that a steroid injection was performed with no other change in status.

Subsequently, Claimant advised of pain and stiffness on the inside of the left knee, which Dr. Morse reported as typically associated with arthritis. In an April 9, 2015 clinical note, Dr. Morse detailed:

Currently, he has signs and symptoms consistent with degenerative arthrosis... At this period of time, we recommend that the patient proceed with conservative management consisting of viscosupplementation and providing medial unloader brace. The treatment will be for the degenerative arthrosis and is not intended to treat the initial work injury. The patient will maintain his current maximal medical improvement status and does not need any limitation at work.

In the DWC–25 form for that visit, Dr. Morse again documented no change with regard to the prior responses to causation questions, but commented that the complaints for which Claimant sought treatment were not work-related and that Claimant remained at MMI with the same impairment rating. After office visits in May and June, Dr. Morse confirmed no change in status on the DWC–25 forms, and the carrier approved an injection to the left knee.

By October 1, 2015, Claimant was complaining of constant aching pain in the left knee with occasional feelings of instability. Dr. Morse diagnosed tri-compartmental primary osteoarthritis of the left knee and left knee medial meniscus tear, post-surgery. Dr. Morse recommended a left total knee replacement. At deposition, he opined that Claimant's preexisting condition, not the workplace injury, was the MCC of the need for the recommended surgery.

Claimant filed a Petition for Benefits requesting authorization of the left total knee replacement. The E/C filed a timely response denying compensability and asserting that the work place accident was not the MCC of the need for the surgery. In the Pre–Trial Stipulations, the E/C stipulated to the compensability of the left knee meniscus tear only "so long as it is and remains MCC," and denied responsibility for the preexisting arthritis, among other defenses. Claimant nor the E/C asserted any "affirmative claims or defenses" in the Pre–Trial Stipulation.¹

Claimant obtained an IME with Dr. Fiore, who opined that the MCC of the need for the left total knee replacement was the work accident even though Claimant had pre-existing degenerative arthritis, as the continued pain was the factor necessitating surgery. Due to the conflict in medical experts, the E/C requested, and the JCC appointed, an expert medical advisor ("EMA") pursuant to section 440.13(9), Florida Statutes. The EMA, Dr. Horan, noted Claimant's similar history of knee problems on the right side and indicated it was "very likely that his left knee and right knee are following the exact same progression of osteoarthritis," but that the recent exacerbation, which was accepted as an acute meniscal tear, "just accelerated his [left] knee for the total knee arthroplasty [replacement]." The EMA concluded that he would "place the majority of the causation... on the pre-existing osteoarthritis." In his deposition, Dr. Horan testified that the viscosupplementation injection performed by Dr. Morse, as well as the recommended use of a brace, were treatments for degenerative joint disease, not a meniscal tear. Dr. Horan predicted Claimant would also require a right total knee replacement in the future, due to the osteoarthritic condition.

Prior to the merits hearing, pre-trial memoranda were filed by the parties setting out the claims and defenses. Claimant's memorandum did not raise the "120–Day Rule" under section 440.20(4) or attach case law concerning its application or any mention of waiver. At the merits hearing, Claimant introduced the deposition of the claims adjuster. The adjuster testified that the E/C authorized Dr. Morse to treat Claimant "for his left knee injury." When asked whether there was "any determination made as to what specific condition was compensable," she responded "[w]e authorized his left knee to get treated." She stated further that all treatment provided by Dr. Morse had been authorized, and that all submitted bills had been paid. The adjuster testified that Dr. Morse's October 1, 2015, report was the first information she received indicating some percentage of Claimant's left knee problem was related to a preexisting condition. She later confirmed she received the April 9, 2015, medical report and that she subsequently authorized the viscosupplementation injection recommended in that report.

In closing argument at the final hearing, Claimant specifically argued that the E/C accepted his left knee condition, including the preexisting arthritis, as a compensable workplace injury pursuant to section 440.13(1)(b), Florida Statutes. Citing the definition of "compensable" under this subsection, Claimant relied, in part, on the evidence that the E/C authorized the treatment expressly recommended by Dr. Morse to treat the degenerative arthritis, not the workplace injury of a medial meniscal tear. Based on the E/C's authorization for treatment of the arthritis, Claimant asserted that the E/C had accepted compensability of the arthritis and had the burden of showing a break in causation, which they failed to do. In the alternative, Claimant argued the arthritis could not be considered a contributing cause in any MCC analysis because the condition did not qualify as a "preexisting condition" under section 440.09(1)(b), Florida Statutes.

In response, the E/C asserted that Claimant failed to satisfy his burden regarding MCC with respect to ongoing medical care. Further, regarding section 440.13(1)(b), a break in the causal chain occurred when the E/C's liability fell below fifty percent. In the final order, the JCC unequivocally accepted the EMA's medical opinion that Claimant's preexisting arthritis —not the accidental compensable injury of a meniscal tear —was the MCC of the need for the requested left total knee replacement. Nevertheless, the JCC ultimately concluded that, as a matter of law, the E/C was precluded from raising MCC related defenses because: 1) Claimant's prior arthritic knee condition could not be considered a contributing cause, as it did not qualify as a "preexisting condition" in accordance with case law; and 2) pursuant to "120–Day Rule" of section 440.20(4), the E/C waived the right to deny compensability of the preexisting arthritic condition. This appeal followed.

Legal Analysis

To the extent an issue turns on resolution of the facts, the standard of review is competent substantial evidence ("CSE"); to the extent it involves an interpretation of law, the standard is de novo . Benniefield v. City of Lakeland, 109...