TECO ENERGY, INC. and TECO SERVICES, INC., Appellants,
MICHAEL K. WILLIAMS, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
of Accident: April 25, 2013.
appeal from an order of the Judge of Compensation Claims.
Ellen H. Lorenzen, Judge.
G. Jacobs of Bennett, Jacobs, & Adams, P.A., Tampa, for
Thrower Miles of Miles and Parrish, P.A., Lakeland, and Wendy
S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for
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.
& Procedural History
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.
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.
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.
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.
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
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 ...