An H.G. Kagan Landmark Alert
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Big Law Day! Court releases one blockbuster on ‘120 day’ rule, and one definitive new ‘limitations’ interpretation, on May 31, 2023.

(Not HGK cases, but a recent opinion in an HGK case not  warranting a free-standing Alert is at least worth mentioning, so, ‘triple header!’).

In order of priority:


  1. The sometimes murky but always potentially fatal “120-day, pay and investigate provision just got a little clearer -- but for Florida employer/carriers -- not necessarily in a good way.


CHURCHILL v. DBI SERVICES, LLC and CORVEL CORP. Prevailing attorney; Michael J. Winer


  1. The Holding: (spoiler alert: this applies to you!)

There is, STARTING NOW, a two-part process for initiating a (viable) 120-day defense, to wit;

(1); provision of benefits (or agreement to do so in response to the PFB) and 

(2); NOW-MANDATORY issuance of a ‘pay and investigate’ commencement letter/notice per §440.20(4) “upon commencement of payment.”

Though the court does not set down an absolute definition of “immediately upon commencement,” in this case, 59 days was deemed “too long” and “not compliant” with the law! The court acknowledges: this is all new, and it specifically repudiates older cases to the contrary.


The notice/letter had, over the years, devolved into a kind of unnecessary add-on --  until now – – emphasis on until now. Tied together chronologically by an elastic “almost immediately” band, one must follow the other in very short succession and if either is missing at or near effectuation of the other, the 120-day defense will not be viable even if the carrier ultimately denies “on-time” (i. e., within the 120 days).


Note: nothing in the above deals with timely denial within 120 days, an entirely separate act required for the viability of an appropriately invoked “pay and investigate” period.


  1. Analysis:

To an outsider, this “dual act” -- nearly simultaneous payment and notice -- may not seem like an onerous burden – i.e., tying the notice/letter to the first payment. However, insiders know that murky, confused, and most important, changing fact patterns and medical opinions often do not reveal themselves in the tight time frame within which initial benefits are due! 


For instance, in catastrophic cases, where potentially staggering hospital bills are being incurred daily [and the legislature years ago added the also-treacherous “as if” clause to §440.20(4), requiring all payments incurred during the 120 days be paid even in successful denial cases -- which represents a Pyrrhic victory for EC even if it prevails] -- this has become some “without prejudice” provision! In short: requiring certainty that you are unsure, almost on day one, is illogical and often impossible! 


But: there is the §440.20(4) provision which gives leeway to prove circumstances precluded timely investigation, toward excusal of a late denial, and maybe this can be harnessed to excuse late “notice” because, even though it stretches statutory nomenclature past the comfort level, it would be illogical for the legislature to exclude excuse for one (late denial) but not the other (late initial notice). But as attorneys will recognize, doing so "adds" an exception to a "list", which goes against ordinary statutory construction.


  1. Take away? Worse, in terms of the smooth functioning of the system, as there is no “prejudice” to a successfully invoked 120-day period where benefits are ultimately deemed due, this may (hint-hint) almost compel ECs to file “pay and investigate” notices almost invariably, which would not be a system-helper but e-paperwork boondoggle that obscures rather than clarifies.


  1. P.S., still murky after all these years: An editorial aside: though the Court appears to touch on the question, it does not seem to clarify (in the short time the author has had the opinion), the wrong-headed (author’s view) line of cases that departed from the useful and logical “one 120-day pay and investigate period per accident claim” to the apparent current state of affairs that may permit multiple ‘120 day periods’ popping up like Whack-a-Moles with each new PFB for any new benefit.


  1. Same case: different holding; another ‘EC beware!’

The court also reiterates: Florida Rules of Civil Procedure ARE the rules for deposing corporate representatives of a party, and the Court reminds bench, bar, and litigants it will not tolerate sending someone who, like Sgt. Schultz, knows ‘nothing, nooothing!’ Rather, the rules require that the corporation must;

“…reasonably prepare its representative to testify on the specified subject matters through documents, past employees, or other sources to enable the witness to “give complete, knowledgeable, and binding answers on behalf of the corporation.”

EC beware!


  1. EC fares better in our second 5/31/23 case, one dealing with the statute of limitations


Ortiz v. Winn-Dixie, Inc., Travelers, and Sedgwick CMS; prevailing attorney: William H Rogner 


  1. First this: the Court has introduced a new “figurative” way of calculating relevant times in a “limitations” case, utilizing a conceptual ‘two timer’ clock approach, the upshot being that the so-called initial two years under §440.19(2) can continue over several years, to be paused during interruptions, not a straight two-year run from the date of accident. By this method the court allowed it was possible Claimant could have shown the “two-year” clock did not yet run even though the accident occurred in 2003. Analysis of this computational method bears more careful study than the quick release of this Alert allowed and so we will move to the holding of greatest, most accessible interest, namely: what qualifies as a doctor’s visit that tolls the statute? The news is better here.


  1. The holding: a visit to even an authorized physician is not, standing alone, sufficient to toll the running of the statute, i.e., the required showing that EC has “furnished” care, per §440.19(2).

Claimant must show; 


(1); actual proof the authorized provider administered care or treatment,

 (2); “causally related to a compensable injury,” and

 (3); that such care was “reasonably necessary.”



  1. Analysis: In other words, no free spot on the bingo board if claimant proves only that she appeared in the authorized physician’s office on a certain date. Though EC allowed as to how the doctor had remained authorized, and that Claimant went in: that is not proof of “furnishing.” (And to be fair, there was a lot of evidence Claimant was seen for a personal condition: as they say, bad cases make bad law, in this case working against the claimant).


The court reasoned that authorization “just means that the provider will be reimbursed upon treating the employee for workplace injury, i.e., the same provider could also provide personal/non-injury-related care which would not be reimbursed.” Claimant here simply failed to connect the dots. 


The undersigned can think of a currently pending appeal in which this holding will be useful; for example, a claimant who returns to an authorized physician only to “punch” the limitations clock for another year. That will no longer cut it in a limitations defense. The court has already ruled claimant has no generic right to petition for a return visit to an authorized physician where EC objects absent proof of a medically necessary, causally related need. This area of the law continues to be tidied up!


  1. A successful HGK ‘notice defense’ outcome/opinion on February 22 of this year:


Lange v. Cleveland Clinic Martin Health Systems Inc et al, and Commercial Risk Management, Inc. Prevailing attorney, H. George Kagan


Your undersigned was quite pleased to have prevailed in the above-captioned complex and difficult matter on behalf of the Cleveland Clinic - a matter successfully defended at the trial level by esteemed Alison Schefer, and though the court issued an actual "written" opinion and not a “PCA,” because that opinion articulated only affirmance on grounds Claimant failed to establish timely ‘notice of injury’ to her employer under §440.185(1)(c), it was decided the case did not warrant issuing an Alert. 


But now that I have your attention…….


The case was extraordinary; notice was a side issue (point V in Claimant’s appeal), but it took center stage in the short opinion! Claimant alleged an adverse reaction to a flu vaccine led to Guillain-Barré Syndrome (GBS), and issues ranged from causation to MCC, however, the ‘notice’ issue had two interesting wrinkles. 


First, E/C contended claimant had contrived a “second accident” solely to cover the failure to give timely notice initially. Even so, however, Claimant had alternative theories; first, though she may have suspected a connection between inoculation and her GBS, she claimed not to recognize it as a potential “Workers’ Compensation claim” until advised by her attorney, which then resulted in a PFB within 30 days.

Esteemed JCC Keef F. Owens correctly recognized the statutory triggering event requires action within 30 days of a “medical opinion” not “legal opinion,” and also that the viability of a workers’ compensation claim is beside the direct point. Where statutory language is specific, it is all-inclusive, thereby excluding Claimant’s proposed additional “source” of information (attorney vs. physician). Outcome now final.


Remember, the two new cases are not yet final: I will issue a follow-up only if something changes in a material way. And as usual, any questions or concerns (at least those I have the power to address): don’t hesitate.


  1. George Kagan P.A. will continue to keep its esteemed industry and claims clients abreast of developments while proudly also defending their interests exclusively.
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