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Workers ’ Compensation Section Chairs : AnthonyV . Cortese – AnthonyV . Cortese , AttorneyatLaw , IreneRodriguez – IreneM . Rodriguez , PA & Ya ’ SheakaWilliams – Quintairos , Prieto , Wood & Boyer
iurgeany practitionerto carefullyread thisdecision .
Attorneys who practice in the worker ’ s compensation field should carefully read the decision in Churchill v . DBI Services and Corvel , No . 1D21-3199 ( 1st DCA May 31 , 2023 ). It is an important and complex ruling .
The claimant in the case was a cleaning person who mixed some chemicals that exploded into a vapor that enveloped her face on November 1 , 2020 . She immediately began choking and having other symptoms . She was taken by ambulance to the hospital and admitted for 5 days for conditions including toxic effects of fumes and chemicals , and respiratory distress . The worker ’ s compensation insurance carrier accepted the claim as compensable on November 13 , 2020 , paid for prescriptions , and began paying indemnity on the same day . Treatment was authorized and indemnity paid until February 7 , 2021 .
On January 8 , 2021 , the employer / carrier sent a 120-day pay and investigate letter , and on February 24 , 2021 , the employer / carrier issued a denial , refusing to pay certain medical bills and contending that the claimant could not prove compensability of
this as a toxic exposure because the claimant could not prove the specific chemical exposures involved or the quantity the claimant was exposed to , as required under F . S . 440.02 ( 1 ). At the pretrial , the employer / carrier agreed to pay all medical bills incurred before February 24 , 2021 . In discovery , the claimant asked for a deposition of the corporate representative of the employer , but the Judge of Compensation denied the request and granted a protective order against it .
After a final hearing , the Judge held that the claimant had not proven the specific chemicals involved nor the quantity of the exposure , and so , under the rule requiring this specific proof for a toxic exposure injury , the claimant had not established compensability . The Judge also denied the claim for attorney ’ s fees for the medical bills that the employer / carrier had first denied and then at the pretrial agreed to pay .
The denial of the award of attorney ’ s fees to the claimant ’ s counsel for medical bills that were denied and paid after litigation was reversed and remanded by the First District Court of Appeal without much fanfare , holding it was an error not to award fees based on successful litigation for benefits , even though the success was only for part of the benefits at issue .
The denial of the request for a corporate representative deposition was also reversed and remanded . The workers ’ compensation rules of procedure , at F . S . 440.30 , incorporate the civil rules of procedure , which expressly allow such a deposition . It was noted that the deposition of the employer would be meaningful on the issues in a toxic exposure case .
The more complex ruling involved the 120-day notice to pay and investigate rule . There was a 120-day letter issued within 120 days of the injury , and there was a final denial within 120 days of the injury . However , because there had been 59 days between the commencement of payment of benefits and the issuance of a 120-day written notice , the First District held that the employer / carrier waived the right to deny compensability , making the issue of proof of toxic exposure moot . I urge all worker ’ s compensation practitioners to carefully read this decision . n
Author : Anthony V . Cortese - Anthony V . Cortese , Attorney at Law
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