A Pair of Cases You Should Know

Wednesday, August 26, 2009 | 0

By Miller, Kagan, Rodriguez and Silver

Herman Parodi v. Florida Contracting Co. Case No. 1Do8-4196, Fla 1st DCA 8/21/09. Unauthorized providers may give opinion testimony in certain circumstances (but there may be more circumstances than the court has foreseen.)

WHAT HAS HAPPENED?  The court holds: where an employer/carrier (E/C) "wrongfully withholds" or denies medical benefits and/or "abandons its obligation to provide appropriate care" it not only "surrenders to the claimant the right to select and receive payment for initially "unauthorized" medical care, but the "unauthorized" physicians providing such care may give opinion testimony in support of both compensability and medical necessity of their care. Bingo. Problem.
 
ANALYSIS:  The court correctly notes two earlier cases held just about the same thing, but frankly, few noticed those cases given the tide of authority suggesting otherwise.  Here the court pronounces a rule, and now everyone will notice. 

The common belief has been that a claimant may establish entitlement to denied treatment and benefits only by way of IMEs, whether the claim involved multiple injuries and a total controvert (on whatever ground, e.g., course and scope, etc.)  or merely an inadvertent denial for just a short period of time in an otherwise compensable case.   This seemed exactly the legislature's plan; it made sense, and for over a decade, it worked.  Ignoring for the time being the soundness of the court's reading of the seemingly plain language of the statute (Miller, Kagan, Rodriguez and Silver, MKRS, does not agree the statutory text can support this arguably strained interpretation), the holding is what MKRS projects will be a "game changer" — for the following reason.
 
WHY WE ARE CONCERNED: The court likely views this outcome as simply an efficient means of allowing a claimant to prove, directly through the "wrongfully" withheld providers, denied portions of a claim for medical benefits — and any indemnity that arguably might flow from the denial.  What the court evidently does not see is a possible "virus" attached, one that will bring back some of the worst features of the pre-1990 law, namely, the ability to spawn litigation on its own.  

A "new" condition or bodily injury (MCC), or, additional modality of treatment (chiropractor, pain clinic), or simply "more" care and indemnity past MMI (according to the E/C) can now be proven via 'stranger' physicians (presumably at least certified for WC by AHCA) who will make the case for the wisdom, necessity and compensability of their own ministrations, i.e., not coincidently: a win-win-win (doctor, claimant, lawyer).   Moreover, where a claim is totally controverted on any grounds; say course and scope, a claimant may now be able to prove up an entire case, soup to nuts (medical, indemnity, impairment, PTD, etc), through personally selected experts in all desired fields (remember; this is our analysis: the Court may act to limit such consequences).  In short: it will be "their" doctors against "our" doctors - and the very doctors who "help" allege new, different, more protracted (etc) needs and entitlements - including responsibility for payment of their bills — will be the ones to help "make it so!" 
 
WHY SHOULDN'T WE PANIC? The court stresses the "new" statutory tools (post 94) for screening claims are all still in tact and must be satisfied: i.e., no presumption favors any claim — and it remains a claimant's burden to go forward with proof and satisfaction of the various burdens such as necessity, MCC, reasonableness, etc, in addition to overcoming any affirmative defenses.  If E/C prevails in any defense such as MCC, "fraud" or statute of limitations, then apparently the JCC will in retrospect deem the "outsider" physicians as incapable of an ultimate opinion on any matter in controversy (the apparent plan is: all such testimony may be received, but only conditionally).    While all these measures which did not exist in previous versions of the law are of some comfort — it remains to be seen how careful everyone will be after the claimant's bar and their newly empowered buddy-experts get revved up.
 
BOTTOM LINE:  Perhaps the claimant's bar will not make more of it than is there, but it is difficult for MKRS not to see this opinion as disturbing (defined not in terms of personal likes or dislikes but as a variant from it's perception of the intent of the legislature vis-a-vis the fairly plain statutory language at issue).  Time will tell.

 
Agustinarreola v. Administrative Concepts, Case No. 1D08-4093, Fla. 1st DCA 8/14/09.   The "false social security number" debate intensifies (but is there any real reason?).
 
ANALYSIS: 'Illegal alien' or not, there is a two part test:  First; whether a Claimant made or caused to be made a false, fraudulent or misleading statement.  Second; whether the statement was "intended" for the purpose of obtaining benefits. Yes/Yes? Claim forfeited!

Important note:  The court reiterated by use of MKRS' own earlier landmark opinion, Village of N. Palm Beach v. McKale ,that S440.105(4)(b)(1) "does not require that the misrepresentation be material in actuality; rather, the relevant inquiry is whether a claimant's misrepresentation" was "thought" by claimant to have a material impact on the case, with the "intent" to secure benefits.  Translated: it is not necessary that claimant misrepresent, for instance, how far he can bend over — even (for example in McKale) the location of his car on a given night may satisfy this unique test for materiality (i.e., if Claimant thought his misleading the Doctor/Carrier/Defense Attorney would do the claim any good, then forfeiture applies even if it turns out the "lie" didn't really matter after all).
 
SPECIAL NOTE:  Large factual discrepancies here were resolved against the Claimant at trial, particularly those dealing with intent, and it is worth noting the court specifically ruled: had Claimant been believed by the JCC when he said he gave false social security numbers to hospital and pharmacy merely as a means of identification and not "in order to obtain" benefits, then Claimant would have prevailed! "It is not axiomatic that providing a false social security number would disqualify a claimant from receiving benefits."  "Illegal aliens are...covered," generally speaking, per another MKRS test case cited, Safe Harbor Employer Services. Inc., v. Velazquez; "However, no special rules apply to undocumented workers. "In order to be self executing, the statute requires everyone to be truthful, responsive and complete."
 
BOTTOM LINE: There seems nothing too remarkable about this holding despite the noise being generated over it.  The JCC made powerful findings of fact hard to duplicate in the average case, and the defense below is to be commended, but the "illegal alien" component of this case can be substituted for "guy from Sopchoppy," and false social security number can be substituted for "concealed prior similar injury" and you get the same result.  In short, not that much to see here folks, move along.

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Miller, Kagan, Rodriguez and Silver is a defense firm with offices throughout Florida. This Landmark Alert is reprinted by permission.
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