MARK BRAUN, APPELLANT,
v.
BREVARD COUNTY, APPELLEE

Fla. 1st DCA | 2010-09-30
No. 1D10-1544
THOMAS and ROWE, JJ„ concur.
44 So. 3d 1216 Florida District Court of Appeal, First District (2010) Positive Treatment
Cited by 2 cases

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Synopsis

In this workers' compensation appeal, the court reversed a judge's denial of benefits for a 1993 workplace cervical spine injury, holding that medical treatment attributable to the earlier accident remains the employer's responsibility even when a subsequent 2005 accident complicates treatment, because the substantive law applicable to the 1993 accident did not permit apportionment of medical benefits.


Holding

The court held that under the law in force at the time of the 1993 accident, medical bills were not subject to apportionment, and Brevard County was responsible for the full cost of Dr. Golovac's treatment for the 1993 accident even if the treatment incidentally ameliorated injuries from a later accident, because the date of accident determines the applicable substantive law.


Headnotes

[1] The date of a workers' compensation accident determines the substantive law applicable to the claim.

[2] Workers' compensation medical benefits incurred at the time of a 1993 accident were not subject to apportionment under Florida law.

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Key Quotes

“The date of accident determines the substantive law applicable in workers' compensation cases.”

Establishes the controlling legal principle that statutory law in effect at the time of injury governs the claim

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Facts & Procedural History

Mark Braun suffered two compensable cervical spine injuries during employment with Brevard County: one at the C5-6 level in 1993 and another at the ad…

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Opinion of the Court
BENTON, J.

BENTON, J.

In this workers’ compensation case, Mark Braun argues the judge of compensation claims erred in denying his request that his former employer (and its servicing agent) be held 100% responsible for medical benefits attributable to a 1993 accident, notwithstanding a subsequent accident that complicated the picture. Applying *1217the statute in force at the time of the accident, we reverse.

Mr. Braun suffered two compensable injuries to his cervical spine in the course and scope of his employment with Brevard County, one in 199B and one in 2005. On uncontroverted medical evidence, the order under review finds “that the January 8, 1993 neck injury involved the C5-6 level and the August 24, 2005 neck injury involved the adjacent C4-5 level.”

Mr. Braun sustained the later work injury in a motor vehicle accident, on account of which he received $15,000 from a third-party tortfeasor. Under the Workers’ Compensation Law,: Brevard County had subrogation rights in these settlement proceeds, § 440.39, Fla. Stat. (2005), the precise extent of which the parties fixed by agreement. Insofar as pertinent here, the agreement called for Mr. Braun to bear 25% of the cost of future remedial care incurred on account of the 2005 accident. For purposes of appeal — no party having raised the question — we assume the validity of this agreement. But see § 440.39(2), Fla. Stat. (2005) (“the amount recovered from the tortfeasor shall be set off against any compensation benefits other than for remedial care”).

Dr. Golovac, the authorized physician who had been treating Mr. Braun for the 1993 accident, was originally authorized to treat him for the 2005 accident, as well. Later, in connection with his 2005 accident only, Mr. Braun sought and obtained a one-time change in physician, pursuant to section 440.13(2)(f), Florida Statutes (2005). Still later, when he again visited Dr. Golovac, by then again authorized to provide treatment only for the 1993 injuries, Brevard County asserted it was entitled to apportion or allocate the charges for the treatment Mr. Braun received (and medications Dr. Golovac prescribed) between the two accidents because, Dr. Golo-vac had opined, 50% of his treatment was related to the 1993 accident and 50% was related to the 2005 accident.1

The order under review rejected appellant’s contention below, reiterated here, that he has a legal right to elect to seek all the benefits to which he was entitled because of the 1993 accident, even though he was later injured in another industrial accident. The judge of compensation claims wrote, “Practically speaking, I do not see an[y] evidence on how Dr. Golovac can prescribe medication only for the C5-6, level without treating the C4-5 level as well.” Purportedly relying on section 440.42(4), Florida Statutes (2005), and citing Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007), the order under review “denied and dismissed with prejudice” all of Mr. Braun’s claims.

Because we are reviewing the application of the law to undisputed facts, our review is de novo. See Gilbreth v. Genesis Eldercare, 821 So.2d 1226, 1228 (Fla. 1st DCA 2002). The claims in the petition for benefits before the judge of compensation claims related only to the 1993 accident. “The date of accident determines the substantive law applicable in workers’ compensation cases. See, e.g., Ace Disposal v. Holley, 668 So.2d 645, 646 (Fla. 1st DCA 1996); Paulk v. Sch. Bd., 615 So.2d 260, 261 (Fla. 1st DCA 1993).” Styles v. Broward County Sch. Bd., 831 So.2d 212, 213 (Fla. 1st DCA 2002). At *1218the time of the 1993 accident, medical bills were not subject to apportionment. See § 440.15(5)(a), Fla. Stat. (1991) (“Compensation for ... medical benefits ... shall not be subject to apportionment.”). Section 440.42 and Pearson have no application here.2

In 1993, the current “major contributing cause” standard had not been adopted. See Turner v. G. Pierce Wood Mem’l Hosp., 600 So.2d 1153, 1156 (Fla. 1st DCA 1992) (“In establishing causation, it is not necessary for the claimant to show that the industrial accident is the sole cause of the injury or condition, but only that it is either a competent, precipitating or accelerating cause of the injury.”). Dr. Golovac, who was authorized to provide treatment for the 1993 accident, opined— and the judge of compensation claims accepted his opinion — that the treatment he provided was necessitated, at least in part, by the injuries the 1993 accident caused.3 Under the law in force at the time of the accident, Brevard County was responsible for the full cost of Dr. Golovac’s treatment for the 1993 accident, even if the treatment incidentally ameliorated the injury Mr. Braun suffered in a later industrial accident.

Reversed and remanded.

THOMAS and ROWE, JJ„ concur.


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    …times and was denied each time. The E/C sua sponte ceased paying PTD supplemental benefits when Claimant was 66 years of age. “Because we are reviewing the application of the law to undisputed facts, our review is de novo.” Braun v. Brevard Cnty., 44 So. 3d 1216, 1217 (Fla. 1st DCA 2010). In construing a statute, courts must first look to its plain language. See Perez v. Rooms To Go, 997 So. 2d 511, 512 (Fla. 1st DCA 2008). Section 440.15(l)(e)l., Florida Statutes (Supp.1992), which provides for PTD supplem…

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