STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGES OF COMPENSATION CLAIMS MIAMI DISTRICT OFFICE FINAL COMPENSATION ORDER

Transcription

1 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS OFFICE OF THE JUDGES OF COMPENSATION CLAIMS MIAMI DISTRICT OFFICE Guillermo Santiago, Employee /Claimant, vs. Florida Highway Patrol/Division of Risk Management, Employer /Carrier /Servicing Agent. / OJCC Case No MAM Accident date: 11/20/2004 Judge: Mark A. Massey FINAL COMPENSATION ORDER This cause came for hearing before the undersigned Judge of Compensation Claims on 03/11/15. Present and representing the claimant was Jesse Casher, Esquire. Present and representing E/C was Andrew Borah, Esquire. The subject of the hearing was the petition for benefits filed 08/15/14. Prior to the hearing, the parties stipulated to the following: 1. Venue properly lies in Miami -Dade County. 2. There was an employer -employee relationship in existence on the claimed date of accident. 3. The employer had workers' compensation insurance coverage in effect on the claimed date of accident. 4. The parties received timely notice of the final hearing. 5. The case is not governed by a managed care arrangement. 6. The undersigned has jurisdiction over the parties and the subject matter. 7. The average weekly wage is not at issue. 8. No medical treatment has been authorized to date, nor have any benefits been paid. CLAIMS 1. Compensability of claimant's hypertension. 2. Authorization of medical care with a cardiologist. 3. Costs and attorney's fees. DEFENSES 1

2 1. Statute of limitations. 2. Untimely notice pursuant to section , F.S. 3. Claimant is not entitled to presumption pursuant to section (1)(b)4., F.S. 4. Misrepresentation defense pursuant to sections (4) and (4), F.S. 5. No costs or attorney's fees due. The following items were marked into evidence. The letter "D" in parentheses followed by a number refers to the OJCC docket number. JUDGE'S EXHIBITS 1. Petition for benefits filed 08/15/14 (D -1) 2. Response to petition filed 09/12/14 (D -7) 3. Uniform Pre -Trial Stipulation, including all amendments thereto (D -14, 16, 17, 18, 21, 22, 26) 4. Claimant's Trial Memorandum, for argument only (D -36) 5. E /C's Trial Memorandum, for argument only (D -30) JOINT EXHIBITS 1. Baptist Hospital records (D -33) 2. Deposition of Lt. Michael Wilfong (D -32) 1. Deposition of Lt. Pajon (D -35) CLAIMANT'S EXHIBITS EMPLOYER/CARRIER'S EXHIBITS 1. Deposition of claimant (D -29) (objection overruled) 2. Notice of Defense (D -23) WITNESSES Claimant testified live on his own behalf. There were no other live witnesses. FINDINGS OF FACT The parties stipulated to the following facts: Claimant last worked for the Florida Highway Patrol on 04/13/08. 2

3 The first time claimant filed a claim requesting treatment for his high blood pressure was 08/15/14 when he filed the petition for benefits. The first time a Notice of Injury (DWC -1) was completed was after the 08/15/14 petition was filed. No workers' compensation informational brochure was mailed to claimant, for the 11/20/04 date of accident, until after the 08/15/14 petition was filed. In addition, the parties stipulated that claimant meets or satisfies all four prongs of section , F.S. Specifically: Claimant was a Florida Highway Patrol officer, which is a position that is protected by section , F.S. Claimant suffered from high blood pressure on 11/20/04, which is a condition that is protected by section , F.S. Claimant's high blood pressure event on 11/20/04 resulted in a disability. Claimant passed a pre -employment physical which failed to reveal evidence of high blood pressure or heart disease. After carefully considering the evidence and testimony presented, after weighing the same and resolving any conflicts therein, after personally observing the candor and demeanor of the claimant who testified before me, and after hearing and considering the arguments of counsel, I hereby make the following findings of fact. Claimant, Guillermo Santiago, began working for the Florida Highway Patrol in He continued working for them until In 1998 he was promoted from trooper to sergeant. He presently works as a police officer for the City of Doral. On 11/20/04 claimant was working as part of a traffic enforcement detail when he began to feel light headed and like everything was "spinning " He radioed dispatch to send fire- rescue, who appeared on the scene a short time later. Some other troopers came to his assistance in the meantime. Once fire -rescue arrived, claimant was transported to Baptist Hospital, where he was admitted overnight, and where he was diagnosed with high blood pressure and referred to a cardiologist for further treatment. Claimant believes that his immediate supervisor, Lt. Michael Wilfong, would have heard the call for fire rescue, because he would have been on the same radio frequency, per FHP protocol. Further, even if Lt. Wilfong did not hear the actual call, claimant believes he would have been notified of the call by dispatch, again per standard protocol. Lt. Wilfong, who testified by deposition, had no recollection of the event one way or the other (nor could he recall if he was even claimant' supervisor on the date of accident), but generally agreed with claimant's description of the protocol. Following his discharge from the hospital, claimant followed up with a cardiologist. He returned to work shortly thereafter, which he says he would not have been able to do without a 3

4 "fit for duty" note from the doctor. It is undisputed that the employer did not complete a Notice of Injury (DWC -1) following the events of 11/20/04. In fact, the parties have stipulated that the first time a Notice of Injury was completed was after the filing of the 08/15/14 petition. Statute of Limitations ANALYSIS E/C argue that claimant's claim is barred by the statute of limitations. It is undisputed that the petition for benefits was filed outside of the two -year limitation period contained in section (1), F.S. (Supp. 2004), and that no benefits have been paid or provided which would have tolled the statute. However, claimant argues that E/C are estopped to assert the statute defense because they never properly notified claimant of his rights and responsibilities. E/C argue that claimant has waived any right he might otherwise have had to raise estoppel. In support of this, E/C argue that estoppel was never formally raised or pled by claimant in the pre -trial stipulation or at any other time prior to trial (except in claimant's Trial Memorandum filed 03/09/15). E/C raised the statute defense in their initial response to the petition filed 09/12/14 (D -7), and again in the pre -trial stipulation filed 12/12/14 (D -14). E/C point out that, effective 11/10/14, the 60Q Rules were amended regarding affirmative defenses and responses thereto. Specifically, Rule 60Q (2)(h) was added, and requires "any affirmative defense" to be raised with specificity, and also requires that "Any objections /responses to the affirmative defenses must be pled with specificity." E/C argue that by failing to specifically plead estoppel or any other response or avoidance to the statute defense, in the pre -trial stipulation or any amendment thereto, claimant has waived his right to argue any such response or avoidance. Initially, I note that 60Q (2)(h) does not specifically contain a waiver provision or otherwise state the consequences of the failure to plead a response or objection. Cf 60Q (2)(a), which has a waiver provision that applies to "claims" and "defenses," but not to avoidances, responses, or objections to defenses. But even assuming that a failure to raise an avoidance, response, or objection in the pre -trial can result in a waiver, I find that it has not been waived in this case. Claimant's counsel averred, as an officer of the court, that he had at least one conversation with defense counsel regarding the statute defense, and made plain his intent to argue estoppel. Even disregarding the existence of such a conversation, however, I find that there has been no showing of any surprise or prejudice to E/C by the formal assertion of the defense at trial. When the petition and the initial response to the petition were filed, the rules had not yet been amended, and it was common practice when a statute defense was asserted, that estoppel would be argued to avoid it, without specifically pleading it. Logically, if E/C were able to establish a prima facie statute defense, there would be no point in going to trial if 4

5 claimant was not going to try and avoid it, through the means established in the statute and case law. Palmer y McKesson Corp., 7 So. 3d 561 (Fla. lst DCA 2009); Crutcher y School Board of 14 Broward Cty., 834 So. 2d 228 (Fla. DCA 2002); Fontanills y Hillsborough Cty. School Board, 913 So. 2d 28 (Fla. 14 DCA 2005). Therefore it is illogical to believe that E/C were truly surprised when the estoppel argument was raised. Absent any actual surprise or demonstrable prejudice (which I do not find here), I find that it would be inappropriate to disallow the estoppel argument. See American Airlines y Hennessey (1D , Opinion filed 02/23/15) and cases cited therein.' As to the merits of the estoppel argument, it is undisputed that the informational brochure required by section (4), F.S. (Supp. 2004) was not mailed or otherwise provided to the claimant until after the petition for benefits was filed. There is no evidence or testimony that the employer ever advised claimant of his potential rights in any other manner. Because the employer had knowledge of claimant's condition equal to that of claimant himself (as discussed below), the employer had a duty to advise claimant of his potential right to workers' compensation benefits, and their failure to do so precludes application of the statute of limitations defense. Timmeny y Tropical Botanicals, 615 So. 2d 811 (Fla. lst DCA 1993); Paulk y Berkeley Florist Supply, 574 So. 2d 238 (Fla. lst DCA 1991); Southern Bell y McDonald, 671 So. 2d 207 (Fla. lst DCA 1996). In the alternative, I find that the petition was filed within two years of when claimant knew or should have known that his heart condition might be covered under workers' compensation, and was therefore timely under section (1) (Supp. 2004). While I find that there is no separate or independent requirement for the employer to furnish notice of the presumption, in addition to the statutorily required informational brochure, I find that claimant had no reason to know or believe that his heart condition might be covered under workers' compensation, until several years later (2014) when he sought legal advice regarding a different episode. Therefore the 08/15/14 petition was filed well within two years of when he might first be imputed with any knowledge. Further, to the extent that claimant might be imputed with knowledge of potential coverage at any earlier date, I again find that the employer had equal knowledge of claimant's condition, and therefore equal (or perhaps even superior) knowledge of its potential work - relatedness. Therefore, any duty on the part of the claimant to file a claim any earlier than he did, would also run concurrently with a duty on the part of the employer to advise claimant of his potential rights. Because the employer failed to fulfill its statutory duty, they cannot be heard to complain that claimant failed to fulfill his. i This should not be construed as encouraging or condoning any failure to follow the applicable rules. Certainly it would be better practice to plead avoidances like estoppel, with specificity and no later than the pre -trial, to remove any doubt and avoid such arguments. It should also not be construed as saying there can never be demonstrable prejudice based on a failure to follow the rules, or that it will always be viewed as a mere "technicality." Rather, the ruling herein is based on the specific facts and circumstances in this particular case. While the rules are designed to avoid "gotcha" type arguments, I find that to bar the estoppel argument under the circumstances presented here would amount to a "reverse -gotcha" situation, which should also be avoided in the interest of fairness and due process. 5

6 For the reasons set forth above, the statute of limitations defense is respectfully rejected. Timely Notice Claimant claims that his immediate supervisor, Lt. Wilfong, would have been aware of claimant's condition, or at least aware of the call for fire /rescue on 11/20/04, either by way of being on the same radio frequency, or by being later advised by dispatch, pursuant to standard protocol. Further, claimant claims he would not have been able to return to work without a doctor's note, which he believes he had from the cardiologist, Dr. Ing. I find claimant's testimony to be credible and logical, and largely unrefuted. To the extent that Lt. Wilfong's testimony could be construed to the contrary (which I do not find to be the case; rather, Lt. Wilfong simply had no memory of it one way or the other), I accept claimant's testimony as being more in accord with logic and reason. I also accept claimant's testimony that Lt. Pajon, who was of a higher rank than claimant, even if not his direct supervisor, visited claimant in the hospital and was specifically aware of the fact claimant was suffering from hypertension. I find this case is distinguishable from Marion County y Futch, 938 So. 2d 689 (Fla. 1st DCA 2008), the case cited by E /C. In Futch, it was undisputed that claimant "neither reported the accident or any injuries to either of the supervisors at the scene nor sought treatment for his injuries until well over a month after the accident." Further, there was no evidence that either supervisor at the scene witnessed the accident (or was otherwise aware of it). Therefore, there was no evidence that the employer had actual knowledge of claimant's condition. In the instant case, I find that claimant's supervisor(s) did have actual knowledge, well within thirty (or ninety) days of 11/20/04, that: claimant called for fire /rescue after feeling light- headed and dizzy on the job; he was transported to the hospital; he suffered from hypertension; and he provided a return to work note from a cardiologist. I find that this qualifies as "direct and clear knowledge or knowledge of such information as would lead a reasonable person to inquire further." (Futch, supra, quoting Black's Law Dictionary). I also note that Lt. Wilfong agreed that an officer calling for fire -rescue after feeling dizzy, and being transported to the hospital, should have generated a Notice of Injury (p ), but one was not generated in this case. Lt. Wilfong further agreed that a doctor's note would have been required for such an officer to have returned to work (p. 16), which is consistent with claimant's testimony. I find that the employer's knowledge of claimant's cardiac condition was sufficient to put the employer on notice, and that said notice was provided timely. The notice defense is respectfully rejected. Misrepresentation /Fraud 6

7 In his deposition taken 01/02/15, claimant testified that he had never been diagnosed with hypertension at any time before 11/20/04 (p. 37, lines 20-25); that he had never seen a cardiologist before 11/20/04 (p. 54); and that he had never seen a doctor for, and had never taken any medication for, hypertension or any other cardiac condition before 11/20/04 (p ). At final hearing, E/C pointed to certain portions of the Baptist Hospital records from 11/20/04 which appear to indicate a past medical history of hypertension times 2 to 3 years, as well as current medications including Lisinopril. E/C assert that these records show claimant's deposition testimony denying any past history of hypertension or medication therefor, to be false. As a result, E/C argue that claimant intentionally misrepresented his past medical history with the intent of obtaining benefits. Claimant was questioned extensively by both sides during the hearing regarding this apparent inconsistency. Claimant consistently and repeatedly responded to such questions by stating that he does "not remember ever taking medication" for hypertension before 11/20/04. This was his response even when the question was phrased as "Were you ever diagnosed with hypertension before 11/20/04?" or "Did you ever see a doctor for hypertension before 11/20/04?" with no mention of medication in the question. The undersigned found these responses to be somewhat curious and very carefully (or selectively) worded. Eventually, however, claimant denied, as he had in deposition, not only taking medication, but also seeing a doctor for or being diagnosed with hypertension before 11/20/04. Or, more accurately, that he did not recall any of these things ever happening before 11/20/04. However, he had no explanation for why the hospital records from 11/20/04 appear to indicate such a past history. I find there is insufficient evidence to support a finding that claimant intentionally made false or misleading statements, or that he did so for the purpose of obtaining benefits. First, it has not been proven that claimant's statements were false. The entries in the medical records are handwritten and somewhat cryptic. Further, although they could reasonably be interpreted as indicating a two to three year history of hypertension, and Lisinopril as a (possibly) current medication, neither of those things are mentioned further or otherwise explained or put in context. The information could have been recorded in error or as a result of a misunderstanding, especially considering that the records were created in an emergency room setting. Neither the emergency room physician nor any of the other emergency personnel were deposed, nor was Dr. Ing, the consulting cardiologist. (I acknowledge that by 2014, the personnel from 2004 may not have been available and even if they were, they would likely not have an independent recollection of the matter. However, claimant continued to treat with Dr. Ing from 2004 to 2012, yet his records, which may have shed additional light on the matter, were not placed into evidence. Even if Dr. Ing was not available for deposition, claimant saw at least one additional cardiologist in or after 2012). Without any additional records or testimony to bolster or corroborate E /C's argument, I find that the isolated, ambiguous entries in the hospital records referred to here are simply too thin of a reed upon which to base a finding of misrepresentation. Further, even if claimant's statements were incomplete or misleading, it is difficult to conceive how claimant would have 7

8 believed it would have benefitted his case, given that he was generally aware of the presumption statute, and that the parties stipulated he met the criteria for the presumption, including the preemployment physical prong. The misrepresentation defense is rejected. Section (1)(b)4. Section (1)(b)4., F.S., as amended in 2010, provides that "A law enforcement officer, correctional officer, or correctional probation officer is not entitled to the presumption provided for in this section unless a claim for benefits is made prior to or within 180 days after leaving the employment of the employing agency." Here, it is undisputed that claimant did not file a petition for benefits within 180 days after leaving employment with FHP. The question, however, is whether (1)(b)4., which became effective as of January 1, 2011, is applicable to this claim and this claimant, i.e., whether it can be applied retroactively or only prospectively. In addition, claimant argues that E/C have either waived their right to assert this defense, or that they are estopped from doing so. I reject claimant's argument that, by stipulating that claimant meets the four prongs of section (1)(a), E/C thereby waived any defense or argument they might otherwise have against application of the presumption, and to allow such an argument would be contrary to the stipulation and agreement of the parties. I find that merely stipulating that a claimant meets the four prongs, does not take away E /C' s ability to either rebut the presumption, or make any other valid argument against application of the presumption (for example, the "reverse presumption" in (1)(b)1.). I also reject claimant's argument that E/C are estopped from asserting claimant is not entitled to the presumption because E/C never properly advised claimant of his rights and duties under the presumption statute. As noted above, while E/C does have a duty to advise claimant of his rights and obligations under Chapter 440, including the general statute of limitations in , there is no requirement to provide detailed (or any) information specifically regarding the presumption statute, in addition to the state - approved brochure. City of North Bay Village v Guevera, 129 So. 2d 1100 (Fla. 1st DCA 2013). (I also reject any contention that the date reference in subsection (1)(b)1. has any bearing or applicability to subsection (1)(b)4. I find that subsection 1. and subsection 4. are separate and distinct provisions which address two separate situations, and one has nothing to do with the other). Claimant does make a compelling argument that (1)(b)4. should not be applied retroactively, in part because there is no clear expression of legislative intent to apply it retroactively; and in part because it substantially alters the claimant's rights and duties under the statute as it existed prior to the 2010 amendments; or at the very least would lead to arguably 2 Fitchner v Lifesouth Community Blood Centers, Inc., 88 So. 3d 269 (Fla. 1st DCA 2012); Menendez v Progressive Express Ins. Co., 35 So. 3d 873 (Fla. 2010). 8

9 absurd results (for instance, a claimant who left employment with the employing agency more than 180 days before January 1, 2011, who would have enjoyed the benefit of the presumption up through December 31, 2010, would suddenly lose that benefit the very first day the amendment went into effect). For the reasons outlined below, however, I find that claimant's arguments, however eloquent and logical they might be, must fail. In Seminole County Sheriff's Office v Johnson, 901 So. 2d 342 (Fla. 14 DCA 2005), the claimant was a sheriff's deputy who suffered from a disabling heart condition prior to the 2002 amendments to section , but filed his claim after the effective date of those amendments. The 2002 amendments expanded the class of employees entitled to the presumption, to include law enforcement officers. The court held that the 2002 amendments were procedural rather than substantive, and therefore applied to Johnson notwithstanding the fact that his accident date occurred before the effective date of the amendments. The court explained that "the 2002 amendment to section (1) changed only the procedure of establishing entitlement to workers' compensation benefits....claimant's substantive right to those benefits, or lack thereof, has remained unchanged since the date of his (accident)." There is a difference in what you need to prove, and how you need to prove it. If no presumption existed at all, claimant would have the burden of proving compensability of his heart condition in the traditional way, subject to the traditional defenses. The presumption, if applicable, takes the place of that burden, and shifts the burden to E/C to disprove occupational causation. Taking away the presumption merely shifts that burden back. However, the burden itself, and the presumption itself, are not substantive rights. Rather, they are procedural rights. They do not change what you have to prove. Rather, they only change how you have to prove it. In Johnson, the court held that bestowing the presumption on an employee who was previously not entitled to it (thereby taking away many defenses E/C might otherwise have had) was a procedural burden of proof change, rather than a substantive change in the parties' rights. It stands to reason, therefore, that taking the presumption away from an employee who was previously entitled to it (thereby restoring the defenses E/C might otherwise not have had) is also a procedural change in the burden of proof, and not a substantive change in the parties' rights. The primary flaw in claimant's argument, therefore, is equating the right to utilize a rebuttable presumption, with the right to file or pursue a claim altogether.3 Taking the 3 Most of the cases which discuss the absence of a clear expression of legislative intent that a statute be applied retroactively, involve either a statute of limitations or some other provision that could wipe out or bar a claim entirely. See, e.g., Foley v Morris, 339 So. 2d 215 (Fla. 1976); Fitchner v Lifesouth Community Blood Centers, Inc., 88 So. 3d 269 (Fla. 1st DCA 2012). The case cited by claimant, Menendez v Progressive Express Ins. Co., 35 So. 3d 873 (Fla. 2010) involved pre -suit notice procedures and timeframes in the PIP context. The court found this to be substantive rather than procedural, not because it could bar a claim entirely, but because it could materially affect the parties' substantive rights. ( "Thus, the statute substantively alters an insurer's obligation to pay and an insured's right to sue under the contract. ") Neither type of scenario applies here, because the amendment in question does not alter either party's substantive rights. Claimant still has the right to bring a claim; the only thing that changes is the 9

10 presumption away from the claimant, does not take away his right to file or pursue a claim for compensability of his heart disease, or to prove up that claim through medical evidence and testimony. Nor does it change or affect the statute of limitations for the filing of such a claim. WHEREFORE it is hereby ORDERED AND ADJUDGED: 1. The claim for compensability of claimant's hypertension is denied. 2. The claim for authorization of a cardiologist is denied. 3. The claim for costs and attorney's fees is denied. DONE AND ORDERED this 27th day of March, 2015, in Miami, Dade County, Florida. COPIES FURNISHED: Division of Risk Management PO Box 8020 Tallahassee, FL DRM.JCCDOCS@myfloridacfo.com Mark A. Massey Judge of Compensation Claims Division of Administrative Hearings Office of the Judges of Compensation Claims Miami District Office 401 Northwest 2nd Avenue, Suite N -918 Miami, Florida (813) Jesse L. Casher, Esquire Law Office of Jesse L. Casher, P.A. 999 Ponce de Leon Blvd., Penthouse Suite 1120 Coral Gables, FL jessecasher@ jcasherlaw.com Andrew R. Borah, Esquire manner and method by which he must prove up that claim (and the manner and method by which E/C may defend it). 10

11 Hurley, Rogner, Miller, Cox, Waranch &Westcott, P.A SW 36th Avenue, Suite 100 Pompano Beach, FL I HEREBY CERTIFY that the foregoing order was posted to the DOAH website