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Tuesday, December 24, 2024

Ortiz is Decided Again

An opinion was issued on December 23, 2024, in Ortiz v. Winn Dixie, Inc., 1D2021-0885. This Christmas 2024 opinion replaces the court's previous opinion in the case on May 31, 2023 (mandate issued on June 19, 2023). It is fair to say that the 2023 opinion was a resounding moment in Florida workers' compensation. As noted,
"In this, Ortiz disagreed with earlier interpretations, such as Orange Cnty. Sch. Bd. v. Best, 728 So. 2d 1186 (Fla. 1st DCA 1999); Claims Mgmt., Inc. v. Philip, 746 So. 2d 1180 (Fla. 1st DCA 1999)." David W. Langham, Fla. Work. Comp.; History, Evolution, and Function, 2023.
The new interpretation of the statute in 2023 was markedly different from previous court interpretations. That is neither untoward nor unprecedented. The law is persistently re-examined and evolving. There were, however, those who found it interesting that the May 31, 2023 opinion would depart from these precedents without citing or discussing them. 

Procedurally, there was a Motion for Rehearing regarding the May 2023 decision. It was not filed in the correct case (1D2021-0885) but in a second case involving the same parties (1D2021-3577). The court later spontaneously transferred that erroneously filed Motion to 1D2021-0885 and "recalled that mandate on September 1, 2023." 

One lesson for the reader is that a Mandate is not a permanent outcome, and remains subject to recall for at least a period of months.

A chronology is perhaps pertinent. In this case, the following dates are clear:
  • 08.26.20 petition for benefits filed (PFB)
  • 02.25.21 Final Compensation Order entered
  • 03.24.21 Notice of Appeal filed (NOA)
  • 05.31.23 First opinion (798 days, 2 years, since notice NOA)
  • 06.19.23 Mandate issued
  • 09.01.23 Mandate recalled
  • 12.23.24 present opinion issued (1,580 days since PFB filed, 479 days, 1.3 years, since Mandate recalled)
Suffice it to say that litigation is likely not the most rapid or expeditious method of resolving disputes. The period from PFB to final order in the OJCC was 183 days. The remaining 1,397 days were required to bring the matter back to the trial judge. 

This comes back to the trial judge by the Court's order to "set aside" the JCC order of February 2021. This, according to the opinion (page 15, note 7), has "the same meaning as "vacate." And, this is used "rather than 'reversed,' to reflect (the Court's) separate authority to review orders of JCCs." This appellate explanation of the use of these terms is likely welcomed by many. 

The opinion explains that this "set aside" is used because the court is reviewing the final order of an Executive agency (OJCC), distinct in some manner from the "authority to review judgments and other final orders of trial courts within" the judicial branch. There is a suggestion there that the synonyms "set aside" and "vacate" are thus significantly similar in effect to "reversed," and perhaps effectively the same albeit in a difference regarding the branches of government.   

The December 2024 decision again addresses a workplace injury in 2003 that resulted in trauma to the workers' kidney. The result was "nephrectomy," or removal of a kidney. The Employer/Carrier provided that trauma care and thereafter "follow-up care through doctors at Cleveland Clinic." At some point, the care "switched to Dr. Marvin Young" sometime in 2015.

Dr. Young provided care, for which he billed the Employer/Carrier, and for which he was duly paid. The Court found significance in its conclusion(s) that while "the reason for each visit varied slightly," those reasons were for treatment associated with her urinary tract (of which the kidney is part. The opinion relies upon Dorland's Illustrated Medical Dictionary, 943, 1860 (29th ed. 2000) for points apparently not adequately developed in the trial record by the parties.

The Court "inferred from Ortiz's testimony (and Sedgewick's willingness to consistently pay for her medical care with a urologist over the years) that she was under continuous long-term medical monitoring ..." In August 2019, after an office visit for urinary concerns, Dr. Young decided to "sen(d) the bill this time to Ortiz's personal health insurance." Ortiz engaged in conversations as to why the billing would not continue to Sedgewick. She was told simply that the care "has to go through private insurance" and that "the doctor had instructed that."

Thus, there occurred a lapse of billing to Sedgewick, and a resulting lack of payments for care, which extended for more than a year. This gap in payment was noticed by Sedgwick, and the adjuster began an inquiry into the status of care. The adjuster requested office notes for "any recent dates of service" and was provided with an April 2020 record. That date was "more than a year following the" last appointment for which Sedgewick had been billed and had paid.

The doctor also advised that there were two other appointments, in August 2019. The Court was critical of the carrier for not "ask(ing) Dr. Young for his notes of Ortiz's visits in August." The physician having directed his billing elsewhere, by intent or neglect, was not sufficient evidence regarding his opinion(s) as to the compensability of this care. A forensic review of all treatment provided is therefore perhaps a predicate worthy of consideration. 

This reference to the provision of care is consistent with various prior precedents that hold the provision of care, not the payment for care, is the critical question in most statute of limitation discussions. Whether those decisions comport with the statute is left to the reader, and to future statute of limitations litigation. 

The Court emphasized that it was the Carrier's obligation to obtain the physician's notes for these other visits. Had the Carrier done so, the Court concluded, the adjuster would have readily "seen the same treatment that the E/C had been paying since 2015." 

Thus, while the 2023 decision would have placed the burden on an injured worker to establish the causal connection between injury and instances of medical care, the 2024 decision clarifies that it is the Employer/Carrier's burden to investigate such connectivity. It also seems reasonably clear that the E/C is obligated to look beyond any conclusion reached by the medical provider as regards responsibility or billing. 

The Court decision includes one concurrence "to emphasize that, ... concurring opinion(s) (are) ...not the opinion of this court." 

And, there is a "specially concurring opinion" that returns to the analysis of the statute of limitations and the calculation of time discussed in the May 2023 decision. The special concurrence notes that calculation analysis was not reached in the 2024 decision because it was not raised by the parties in the litigation before the JCC. 

That is, the calculation of time under section 440.19 was not raised or argued by the parties at trial. This is an important reminder for all litigators. Raising and preserving arguments is a critical role for trial counsel. Failure to raise an argument may be viewed as a waiver, and lead the appellate court to decline to address it in further review. 

The Special Concurrence cites and discusses Orange Cnty. Sch. Bd. v. Best, 728 So. 2d 1186 (Fla. 1st DCA 1999) and Sanchez v. Am. Airlines, 169 So. 3d 1197, 1197 (Fla. 1st DCA 2015). There is the suggestion made that these decisions are not correctly decided. Perhaps future decisions will lead to further discussion and review? 

The Concurrence nonetheless concludes that judicial interpretation of the section 440.19 provisions has been from "common practice (or preference) among counsel and JCCs," rather than from these precedents. However, it is the JCC's obligation to adhere to precedent from the District Courts. As explained by the Court in Andrews v. McKim & Creed, 355 So. 3d 957, 963 (Fla. 1st DCA 2023):
"a JCC's disagreement, respectful or otherwise, with a decision of this Court does not usurp its precedential value nor does it relieve a lower tribunal of its duty to apply its holding."

Simply stated, It is the trial judge's role to follow the precedent from the appellate courts.  

In the end, the 2024 decision is worthy of careful reading. There are multiple reminders and explanations for the litigator and beyond.