Kelley Kronenberg - In The Know - Workers' Compensation - August 2023

EDITOR’S LETTER

WELCOME

Joshua T. Higgins, Esq. Editor, and Business Unit Leader/Partner

as a prosecutor, and having not the slightest clue as to what workers’ compensation law entailed. Through his tutelage, I was able to progress rather quickly, and my success is largely attributable to the mentorship that I had from him.

In any profession, mentorship is essential to growth for young employees. Certainly, this is especially true for the legal profession, where much of what a lawyer knows is based upon experience gleaned from more experienced associates and partners at the respective firm. For me, one of the great joys of what I do is the platform I’m given to impart wisdom on younger attorneys or law students. I was very fortunate to have had (and still have) a great mentor in Heath Eskalyo, a principal partner and the CFO of Kelley Kronenberg. Heath took a chance on me when I was only a few years removed from law school, having only had legal experience

As such, when I became a Partner and Business Unit Leader, I knew that I wanted to hire an associate who was fresh out of law school. That’s what I did in January 2020 when I hired Brandon Haas, who as this issue will highlight, has recently been promoted to a Practice Group Partner. There are few things I’m more proud of in my career than the growth that I’ve seen with Brandon over the past few years. As Steven Spielberg made clear in his above quote, what is important with mentorship is that you provide a platform for someone younger or less experienced to succeed. It is not about creating a clone of yourself (because really, do we need another one of me?), but about giving someone the tools to succeed and watching them flourish in a very individualized way. That is what mentorship is all about, that’s what I was fortunate enough to have, and that’s what I hopefully can continue to do throughout my career.

The delicate balance of mentoring someone is not creating them in your own image , but giving them the opportunity to create themselves .

–Steven Spielberg

Churchill v. DBI Services, LLC

No. 1D21-3199

2023 WL 3734607 (Fla. 1st DCA 2023)

KK TAKEAWAY:

Florida Statute §440.20(4) requires employer/carriers to send a 120-day “pay and investigate” letter in order to avoid waiving the right to deny compensability.

KK TAKEAWAY:

Employer/carriers who have furnished benefits are deemed to have accepted an injured employee’s injuries as compensable when a 120-day “pay and investigate” letter is not issued to the employee.

KK TAKEAWAY:

A 120-day “pay and investigate” letter is due either at the time of the initial payment of benefits or soon thereafter as reasonably practicable.

KK TAKEAWAY:

The letter does not start the 120-day period, the initial provision of compensation or benefits does.

KK TAKEAWAY:

It is a burden on the employer/carrier to prove that the claimant was provided with a 120day letter in accordance with §440.20(4).

BACKGROUND:

The Employee/Claimant appealed a workers’ compensation order claiming the JCC erred in denying compensability of her injuries.

By way of background, the Claimant claimed she was injured on November 1, 2020 when a mixture of toilet bowl cleaner and bleach exploded, causing a chemical reaction to foam up and envelop her face. She immediately began to choke, cough, and experience burning sensations in her nose and eyes. She complained of coughing, wheezing, and shortness of breath upon her arrival at a hospital where she was admitted for five (5) days. The Claimant was diagnosed with a toxic effect of chlorinated hydrocarbon solvent and acute respiratory failure with hypoxia. She then came under the care of Dr. Luck, a provider authorized by the Employer/Carrier.

The Employer reported the claim to the Carrier and the initial adjuster accepted the claim as compensable on November 13, 2020. The Carrier paid for the Claimant’s prescription medications and commenced payment of indemnity benefits the day the claim was accepted. The Claimant was then authorized to follow-up for treatment with a pulmonologist and ophthalmologist.

On January 8, 2021, over two (2) months after the accident, the Employer/Carrier sent a 120-day “pay and investigate” letter to the Claimant to advise that the claim’s acceptance was conditional. The Employer/Carrier then sent a Notice of Denial on January 25, 2021. However, it was later stated that the Notice of Denial was issued in error on February 22, 2021, and the Employer/Carrier authorized testing and follow-up medical treatment. A Notice of Denial was subsequently filed on February 24, 2021.

The Claimant then filed a Petition for Benefits seeking compensability of the claim along with continued medical care, and a response was filed denying the claim in its entirety. In his Final Compensation Order, the JCC found that the Claimant did not meet her burden of proof

supported by clear and convincing evidence as required for toxic exposure cases.

On appeal, the First DCA applied a de novo standard of review, which concerns’ the JCC’s application of the law. The Court turned its attention to the provisions of §440.09(1) and §440.20, which covers the Employer/Carrier’s obligations to pay compensation or furnish benefits, and the 120-day pay and investigate rule’s effect on this obligation.

Florida Statute §440.20(4) states that “[i]f the carrier is uncertain of its obligation to provide all benefits or compensation, the carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits. Upon commencement of payment, [] the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days.”

Upon receipt of a Petition for Benefits, the legislature gives employer/carriers two (2) weeks to either accept or deny the request. It then allows carriers uncertain of their position to accept the request, follow §440.20(4), and begin investigating the claim. However, these uncertain carriers have another obligation imposed on them under §440.20(4), which is to send a 120-day letter to the claimant. This letter provides notice to the injured worker to preserve evidence for potential litigation of entitlement to benefits. Employer/carriers that have not sent a 120-day letter are deemed

to have accepted the claimant’s injuries as compensable and have “waived any right to deny compensability of the claim unless they can establish material facts relevant to the issue of compensability that they could not have discovered through reasonable investigation within the 120-day period.”

Based upon the foregoing, the First DCA held that an Employer/Carrier’s election to delay their decision about compensability by “paying and investigating” requires written notice per subsection 440.20(4). Although the letter does not start the 120-day period, as the initial provision of compensation benefits does, the letter does invoke the right to rely on this “pay and investigate” provision.

The Court then took it a step further to determine what constitutes timeliness of a 120-day letter. It held that the language “upon commencement of payment” as laid out in §440.20(4) means either “at the time of making the payment or soon thereafter a reasonably practicable.” Should this letter not be timely sent by the employer/carrier, it will not suffice, and it is a burden on the employer/ carrier to prove that the claimant was given this written notice in accordance with the statute.

Applying this law to the facts of the case, the First DCA held that the Employer/Carrier did not provide the Claimant with written

notice “upon commencement of payment” as is required by §440.20(4). The accident occurred on November 1, 2020, and the Employer/Carrier made their first payment for prescription medications on November 10, 2020. Thus, payment commenced on November 10, 2020, and the Employer/Carrier did not provide written notice that they would be utilizing the “pay and investigate” rule until January 8, 2021. The Court ruled that this delay was not timely in compliance with §440.20(4)’s requirements.

The First DCA ultimately reversed the JCC’s decision and remanded the case for further proceedings consistent with this opinion.

Tips For A Successful Vocational Evaluation

What comprises a thorough vocational assessment that will withstand cross examination?

Firstly, the expert needs all the records. This includes the First Report of Injury, employment records, records of all medical providers, any vocational evaluations and labor market surveys and any depositions taken.

Next, a comprehensive interview with the claimant is required. The interview should include, but not necessarily be limited to the following: Personal History, Education, Medical Status, Residual Physical Capabilities, and Employment History. After the interview, the vocational expert will assess whether or not vocational testing is warranted and, if so, what tests should be employed.

Whether or not testing is performed, a Transferable Skills Analysis must be performed as part of the evaluation. The purpose of the TSA is to identify alternative positions the client could obtain given their post work and residual physical capabilities. The TSA should include a review of information from sources such as the Dictionary of Occupational Titles, The Guide for Occupational Exploration, the Occupational Outlook Handbook and the Classification of Jobs. Each source provides information the vocational expert can utilize to evaluate what skills and abilities the injured worker has developed through their

experiences.

The final component of a complete vocational assessment is a labor market survey. Once the vocational expert has identified appropriate alternative occupations the client could perform, a labor market survey should be completed, utilizing these findings. Each job presented should include a description of the specific physical tasks required to successfully perform the job (including but not limited to sitting, standing, walking, lifting, bending, etc.) which can be determined from speaking with employers. Documentation of earnings, experience requirements and educational requirements must also be contained in an assessment of each job. The specific information found regarding the labor market, must be within a fifty mile radius of the claimants residence. Experts should produce at least 2-3 labor market surveys in order to show consistent hiring in 50 mile radius.

Lastly, it is essential to provide your expert with sufficient lead time to complete each step. Therefore, it is crucial to not only select your expert as soon as possible, but provide him/her with the relevant medicals, current means of communication with the injured worker, and an expected timeline for an evaluation and report to be submitted.

With the above information, thoroughly researched, the opinion of your vocational expert will be supported by factual, accurate information.

Randy Sullivan, M. Ed., C.D.M.S.

Jim Sullivan, M. Ed., CRC, CVE, OWCP DRS Registry Services, Inc.

Interview with Practice Group Partner Brandon Haas

What do you attribute to your success at Kelley Kronenberg?

I attribute much of my success as an attorney at Kelley Kronenberg to the guidance and mentorship provided by the firm since my first week as a practicing attorney. This is the firm where I began my legal career, and I was immediately exposed to litigation events, such as mediations, depositions, and hearings which allowed me to foster growth and utilize the skills I learned throughout law school in a meaningful and practical way. Josh continued to bring me along to all litigation events until I eventually progressed and began covering many depositions, mediations, and hearings myself after a few months. The ability to observe such an effective and experienced attorney like Josh and so early in my career was invaluable and is the reason I was able to pick the practice of workers’ compensation up quickly and flourish as a litigator.

In addition to Josh’s mentorship, Kelley Kronenberg’s support and resources provided contributed to the immense growth and success of not only my career, but the workers compensation unit as a whole. This not only includes the technology, office supplies, and research tools that are provided, but it also encompasses networking programs, mentorship programs, assistance with business development, seminars on novel legal topics, and the ability to create my own brand as an attorney.

Without a doubt, I would not be the attorney

I am today without the support of my unit’s extremely hardworking staff that provide support and assist me every day. Coupled with mentorship of Josh, who I continued to learn from, I believe I have become a very effective and skilled attorney.

Lastly, I attribute the love and unwavering support from both my wife, Talya Van Embden, and our dog, Tano, who have been essential in helping me advance and refine my knowledge and skills.

What qualities do you bring to the table as a workers’ compensation defense attorney?

Certain qualities I bring to the table as a workers’ compensation attorney include my work ethic, communicative skills, organization, and the ability to strategize, problem solve, evaluate exposure, and effectively negotiate. I utilize these qualities with a focus on efficiency to mitigate exposure for my clientele and reach the best potential outcome in each claim. I also emphasize and value candor and professionalism when communicating and working with colleagues, clientele, and opposing counsels. I have always found these qualities most effective when attempting to come to a resolution on issues or settle a claim. Such as in the event of settlement, much of our field involves compromise, so I believe engaging in contentious or argumentative practice will only hinder the ability to accomplish a goal.

What do you enjoy most about the practice of workers’ compensation?

The aspects of the workers’ compensation practice I enjoy most are the ability to negotiate, strategize, problem solve. Whether it be at a formal mediation or informally with opposing counsel, I love to formulate a strategy to negotiate a resolution of issues or settlement the claim at a reduced amount. I enjoy the back-and-forth aspect of negotiating and communicating my position in the most effective way possible to come to an agreement while reducing exposure to the client.

I also enjoy problem solving and tend to think of a workers’ compensation case as a puzzle to complete/resolve, as there is an opportunity for multiple issues (or puzzle pieces) to be litigated in just one case. Although the overarching issues are similar case to case, all fact patterns are different and present problems that need to be solved. My passion lies in taking “deep dives” into the minutia and technicalities to craft sophisticated arguments and provide my client the best chance to be successful at a Final Hearing.

“Seeing Brandon grow from a brand-new attorney, fresh out of law school, to the exceptional attorney he is today has been of great pride to me. Make no mistake about it; Brandon’s success is due to his own hard work, internal drive, and desire to learn and be taught. I feel very fortunate to have Brandon by my side, and the days I enjoy the most are those that involve Brandon and I discussing litigation strategy on the claims we handle. He makes me a better attorney, and I greatly look forward to what’s to come from him in the future.”

- Josh Higgins, Esq. Partner/Business Unit Leader

CONTRIBUTORS

Joshua T. Higgins, Esq. Editor and Business Unit Leader/Partner

Email Joshua T. Higgins

Joshua Higgins is a Business Unit Leader and Partner at Kelley Kronenberg where he focuses his practice on Workers’ Compensation defense. He has previous experience handling employment law matters, OSHA, Police Professional Litigation, Correctional Healthcare, and Civil Rights claims.

The team that Joshua leads comprises of nine (9) people (attorneys, paralegals, and legal assistants), which collectively have over 90 years’ experience handling workers’ compensation matters in Florida. Joshua handles workers’ compensation claims for a wide array of industries, for a clientele that ranges from multi-billion companies to small employers.

One of the primary industries Joshua handles workers’ compensation claims for is the construction industry. He represents general contractors and subcontractors of all sizes, and is enmeshed in the construction industry of South Florida. He is an active member of the Construction Association of South Florida (CASF), where he has been on the Young Leaders Committee for several years (and the firm is the legal advisor to), he is involved in the Associated General Contractors (AGC), for which he was instrumental in having the Fort Lauderdale office

of Kelley Kronenberg designated as the host for the meetings in South Florida, and he is the legal advisor to the Safety Alliance for Excellence (SAFE) since its inception. He assists his clients daily in all aspects of claims handling, both prior to and after litigation has begun, and has handled complex matters through trial on numerous occasions, with a high percentage of success.

Joshua is a popular and frequent writer and presenter on various workers’ compensation issues, both in Florida and on a national level. • For his success and reputation, he has been named a Florida Super Lawyers Rising Star for 2020, 2021, and 2022 (bestowed on less than 2.5% of attorneys in Florida), was named a Top Lawyer in workers’ compensation by Fort Lauderdale Illustrated for 2020, 2021, and 2022 (one of only two defense attorneys on the list), and was named a 2022 and 2023 Best Lawyers in America: Ones to Watch by U.S. News & World Report.

Joshua is also rated AV Preeminent by MartindaleHubbell, based upon peer reviews, which indicates that he has achieved the highest professional and ethical standards and is the highest rating a lawyer can receive.

Prior to joining the firm, Joshua worked as an Assistant State Attorney at the State Attorney’s Office, 17th Judicial Circuit, in both the felony trial unit and county court division. While there, Joshua tried more than 30 bench trials and 22 jury trials, with his last trial featured on local Fox news.

During law school at Nova Southeastern University, Joshua served for two years as the Chairperson of Administration for the Moot Court Honor Society, a Staff Member for the Inter-American Center for Human Rights, and the Secretary for the National Security and Law Society. He received a perfect score from the Chief Justice in the first round of the ABA National Appellate Advocacy Competition, and placed in the top 8 out of more than 125 students in the Feinrider Moot Court Competition. Further, Joshua was one of 40 law students selected nationwide as a

summer fellow for the Florida Bar Foundation, which resulted in him working at Coast to Coast Legal Aid of South Florida doing foreclosure defense for indigent elderly citizens.

Prior to entering law school, Joshua obtained his undergraduate degree magna cum laude from the State University of New York at Buffalo, where he was selected for induction into the Phi Beta Kappa Society, received English Departmental Honors, and was listed in Who’s Who Among American College Students. Additionally, Joshua was chosen as a Renaissance Scholar, an award bestowed on less than 4% of graduates that year (only 82 students out of a class size of more than 2500), for those exhibiting scholarly excellence in at least two widely disparate areas of study.

Brandon T. Haas, Esq. Practice Group Partner

Email Brandon Haas

Brandon Haas is a Practice Group Partner in the firm’s Fort Lauderdale office where he assists in handling matters related to Workers’ Compensation. Prior to joining the firm, he gained experience in Insurance Defense Litigation while working as a Law Clerk for a boutique Fort Lauderdale firm.

Brandon received his Bachelor of Science degree from the University of Central Florida and went on to earn his Juris Doctor degree, summa cum laude,

from Nova Southeastern University Shepard Broad College of Law where he regularly made the Dean’s List and was both a Junior Associate and Executive Editor for Nova Law Review. While in law school, he was a Legal Intern for the Broward County Environmental and Consumer Protection Division and served as a Teaching Assistant.

STAY AHEAD

BLOGS

Business Workplace Health & Safety Checklist: What Should Employers Expect with New Delta Variant Cases Rising?

By: Meg Bentley. As the number of COVID-19 cases declined last spring, Illinois businesses reopened their doors […] CLICK

Mental Health in the Workplace – Post Pandemic Panic

By: Amy Siegel Oran Florida workers’ compensation law does not cover purely psychological trauma; the emotional condition must be brought […] CLICK

Movies Speak to Me in Legalese

By: Amy Siegel Oran. We all have our favorite movies, a top-five list of films you’ve seen so many times you […]

20 Years of Wisdom in 5 Bullets: Tips for Law Graduates

By: Amy Siegel Oran. On this day, 20 years ago, I was worrying about law school finals and the upcoming […] CLICK

6 Key Points to Defend, Manage, and Settle Catastrophic Claims

By Amy Siegel Oran I recently had the pleasure of presenting on the topic of defending, managing, […]

WEBINARS

COVID-19 in 2021

Kelley Kronenberg Partners Adam Kemper and Joshua Higgins present COVID-19 in 2021 with Principal Partner/ Chief Financial Officer, Heath Eskalyo as the moderator. The webinar, COVID-19 in 2021, provides updates on the latest applicable workplace guidelines and for practice.

PUBLICATIONS

Don’t Be A Discovery Dinosaur

HR Florida Newswire

Amy Siegel Oran

Guest column:

Florida’s minimum wage increase raises workers’ compensation cost

Tampa Bay Business Journal

Amy Siegel Oran

Yes, employees required to get vaccinated for COVID-19 can file a workers’ compensation claim for vaccine adverse effects

Verify

Joshua Higgins

Telecommuting Employees and the Potential for Workers’ Compensation Claims

HR Florida Newswire

Indira Marin

What The Telecommuting Trend Could Mean for Florida Workers’ Comp Claims Insurance Journal

Indira Marin

Does Workers’ Comp Cover an Employee’s Reaction to a COVID-19 Vaccine?

SHRM

Joshua Higgins

ACCOLADES AWARDS AND FIRM AWARDS

Kelley Kronenberg has been the recipient of numerous awards and honors both firm-wide and for a number of our practices, including individual accolades. Below is a select list of recognition and awards:

WC ATTORNEY AWARDS

Martindale Hubbell AV Preeminent Rating

Karen M. Gilmartin

Joshua T. Higgins

Amy Siegel Oran

Florida Super Lawyers “Rising Stars”

Joshua T. Higgins

Fort Lauderdale Illustrated “Top Lawyer”

Joshua T. Higgins

WOMEN IN THE LAW

Best Lawyers “Women in the Law”

Amy Siegel Oran

Best Lawyers in America: Ones to Watch

Joshua T. Higgins

Amy Siegel Oran

South Florida Legal Guide “Top Lawyers”

Amy Siegel Oran

Karen Gilmartin

Executive Women of the Palm Beaches Foundation Women in Leadership

Amy Siegel Oran

Girl Scouts of Southeast Florida, Emerald Award, “Risk Taker”

Amy Siegel Oran

A Firm Built on Relationships

KELLEY

KRONENBERG IS A MULTI-PRACTICE BUSINESS LAW FIRM.

with over the convenience of more than 400 15 200 Employees Attorneys Locations

Founded in 1980, the firm is one of the fastest-growing law firms in Florida and amongst the largest in the U.S. The firm serves all types and sizes of public and private companies, including small businesses and individuals nationwide.