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Mathis v. Broward County School Board

Florida Court of Appeals, First District

August 14, 2017



          Date of Accident: March 2, 2015.

         An appeal from an order of Judge of Compensation Claims. Iliana Forte, Judge.

          Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.

          Kimberly J. Fernandes of Kelley Kronenberg, P.A., Tallahassee, for Appellees.

          KELSEY, J.

         Claimant's foot injury was determined to be non-compensable because she failed to meet her burden of proving that the injury occurred in the course and scope of employment or arose out of her employment. She does not appeal that ruling. Rather, she argues that the Employer/Carrier (E/C) were obligated to pay for her hospitalization that occurred before the E/C denied compensability and after the E/C began providing benefits under the 120-day rule of section 440.20(4), Florida Statutes (2014). The E/C argue that they were not responsible for the hospitalization expenses because they had decided to deny compensability before the hospitalization occurred, even though they did not file a notice of denial until the hospitalization ended. The JCC accepted the E/C's argument, but we reverse on that issue. However, because the hospitalization began and was completed in a span of less than 10 days, and the E/C did not expressly authorize the hospitalization or fail to respond timely to a written request for authorization, we remand for the JCC to address the E/C's defenses and to determine whether the hospitalization was for emergency care within the meaning of the governing statutes.

         Background Facts.

         The background facts are not in dispute. Claimant, a custodian who is diabetic, reported to her Employer on March 5, 2015, that a nail or tack went through her right shoe the previous evening, and that her right foot was swollen and painful. One of the Employer's workers' compensation nurses spoke with Claimant at length on March 5, and referred her to Dr. Kerr, whom Claimant saw that day. The E/C invoked the 120-day rule, asserted causation and other defenses including entitlement to an evidentiary hearing before AHCA to resolve provider reimbursement issues, and continued paying Claimant's salary in lieu of paying temporary compensation benefits.

         Dr. Kerr's notes reflect that on March 5, one day after the alleged foot puncture, Claimant already had an abscess on the foot, which was later confirmed to be a staph infection. Dr. Kerr's opinion was that such an infection takes more than one day to develop and could not have developed from the night before. Within four days, by March 9, the staph infection had grown worse. Dr. Kerr again advised Claimant that she did not think the infection came from the reported incident. She prepared a DWC-25 form requesting consult through the hospital emergency room for IV treatment. Claimant went to the emergency room on March 9. A podiatrist at the hospital operated on the abscess on March 11, delayed closure of the wound until March 15, and discharged Claimant on March 17. The hospital bill was just over $116, 000.

         The claims adjuster had spoken to Claimant on March 5, and concurred with the authorization of Dr. Kerr. The adjuster received Dr. Kerr's written referral to the hospital within ten days prior to denying the claim on March 17, but the adjuster did not authorize the hospitalization and did not find out about it until March 10. Neither the hospital nor the podiatrist notified the E/C or requested prior authorization for treatment. The E/C later asserted that the adjuster had determined on March 5 that the injury was not compensable, although the notice of denial as to compensability was not filed until March 17, the same day Claimant was discharged from the hospital. The notice of denial asserted that Claimant's injury was personal and not causally connected to her employment, based on lack of evidence of causation and Dr. Kerr's office note regarding the presence of a well-developed infection only one day after the alleged accident.

         Pay And Investigate.

         The "pay-and-investigate" rule of Subsection 440.20(4), Florida Statutes (2014), provides as follows (emphasis added):

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 under subsection (2) or s. 440.192(8). 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. Upon commencement of payment as required under subsection (2) or s. 440.192(8), the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A ...

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