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Workers' Compensation

What's Hot in Workers' Comp

Treatment with authorized provider tolls statute of limitations, although treatment occurred without employer/carrier’s knowledge and was billed to private health insurance, as it was similar in nature to previously authorized treatment.

Ortiz v. Winn-Dixie, Inc., No. 1D2021-0885, Fla. 1st DCA 2024, DCA#: 1D2021-0885, Decision date: Dec. 23, 2024

February 1, 2025

by Blake J. Hood

The First District Court of Appeal issued another opinion in the ongoing statute of limitations saga triggered by the 2023 opinion in Ortiz v. Winn-Dixie, Inc., 361 So. 3d 889 (Fla. 1st DCA 2023) (Ortiz I). The new opinion, also written by Judge Tanenbaum, in Ortiz v. Winn-Dixie, Inc., No. 1D2021-0885, (Fla. 1st DCA 2024) (Ortiz II), supersedes the original. Far from clarifying the issue, Ortiz II leaves many questions unanswered. 

Ortiz I introduced the “two-year master countdown timer” and “tolling timer” concepts in explaining how to construe the time bars for filing petitions for benefits as set forth in section 440.19, Florida Statutes. In so doing, Ortiz I held the one-year tolling provision in section 440.19(2)—prompted by furnishing medical care or paying compensation—does, in fact, apply within the first two years following an accident, something prior case law held otherwise. Thus, under Ortiz I, if an employer/carrier provided benefits immediately following an accident, the initial two-year master timer would never even start ticking, and claimants could effectively “bank” that time. 

By contrast, Ortiz II makes no mention whatsoever of the master countdown/tolling timers. Rather, the new majority opinion focuses only on whether the specific treatment the claimant received qualified as medical care “furnished” by the employer/carrier and was sufficient for the one-year tolling provision in section 440.19(2). Ortiz I held it did not qualify and upheld the judge of compensation claim’s dismissal of the claim. Ortiz II now holds it did qualify and, thus, allowed the claimant’s claims to proceed.

Following the claimant’s accident, the employer/carrier authorized treatment, ultimately requiring the removal of her right kidney. The employer/carrier then authorized and paid for care over many years in the form of annual “kidney follow-ups” with a urologist. At one point in 2019, however, the authorized doctor began sending his medical bills to the claimant’s personal health insurance. The claimant testified she used her health insurance because someone at her doctor’s front desk told her to do so. When the employer/carrier reached out to this doctor’s office after not having received any bills for quite some time, they were advised of the billing situation. Because one year had elapsed from the last visit it paid for, the employer/carrier asserted a statute of limitations defense and denied further care.

The Ortiz II majority noted, the employer/carrier had entered into a broad stipulation accepting compensability of the injury and had not limited their acceptance of compensability for the kidney to any set of symptoms or diagnoses. Since the claimant presented evidence showing that the nature of the treatment both before and after the billing switch was essentially the same, the employer/carrier had to show “a break in causation” such that the treatment of the urological condition was no longer related to the loss of her kidney. In the court’s opinion, the disputed visits were of a piece with the care the employer/carrier had authorized for years. The court further stated the doctor’s decision to bill the claimant’s personal insurance for the contested visits did not alter the analysis. It was not for the doctor to decide whether the visits fit within the employer/carrier’s authorization. It noted, the court repeatedly held that “who gets billed has no legal bearing on the tolling question.” 

Because the question of whether the “two-year master countdown timer” ever started ticking was not squarely before the court and not raised by the parties, Ortiz II removed that discussion from the majority opinion. Left unanswered, then, for the parties and practitioners is the effect of providing benefits at the beginning of a claim and whether claimants can carry that time forward. Judge Tanenbaum wrote a lengthy, separate and concurring opinion, arguing in detail why his calculation methodology in Ortiz I is the correct reading of the statute. Judge Bilbrey’s short and concurring opinion clarifies that Judge Tanenbaum’s concurring opinion has no precedential value and, if the question arises again, “his reasoning may be found to be persuasive or may be discarded.”

Superficially, Ortiz II is not a groundbreaking case. It simply holds that employers/carriers cannot present “Get Out of Jail Free” cards and then deny further care by showing that claimants treated with authorized providers unbeknownst to the employers/carriers or that the visits were not billed to the employers/carriers for over one year, so long as the visits were of a piece with previously authorized care. 

The real significance of Ortiz II is what it leaves unsaid. For now, parties, practitioners and, of course, judges are left wondering if we once again live in the simple “two-year/one-year” calculation method of pre-Ortiz I or whether the court will ultimately adopt the more complicated Ortiz II methodology at some point in the future after all. 

 

What’s Hot in Workers’ Comp, Vol. 29, No. 2, February 2025, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

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WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

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In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.