CHRISTMAS EVE-EVE SPECIAL:
COURT RE-DECIDES ORTIZ 'SOL' CASE
--28 PAGE OPINION! Something sweet, or lump of coal?
Ortiz v. Winn-Dixie, Inc., Travelers Ins., and Sedgwick CMS, Fla. 1st DCA, No. 1D22021-0885, 12/23/24
After a year and a half of everyone on pins and needles, even though the claimant has now prevailed, in my view the result for industry as whole is sweet.
But, as all are otherwise occupied these precious few days, I'll cut to the chase and leave out some of the side discussion normally found in my Alerts.
THE HOLDING (of greatest concern to WC stakeholders): ORTIZ IS NOT A STATUTE OF LIMITATIONS ‘COMPUTATIONAL’ CASE. It has no impact on ‘measuring’ whether a SOL has run. Yes, it's that simple.
THE HOLDING, SECONDARILY (of greatest concern to the parties): Several recent visits to authorized physician--for indisputably compensable condition--billed to group (at physician’s direction), causing an otherwise qualifying gap in which E/C did not "pay for" care, was held inconsequential vis-à-vis the running of the SOL. The significant event is ‘rendition of remedial (including post MMI) treatment’ before expiration of the SOL period and not payment of a bill: ‘furnishing’--not billing or reporting--tolls the statute, and under ALL the (unique) facts here, care was deemed furnished. With MCC established, only a break in causation could have helped E/C.
WAIT! WHAT ABOUT THE ‘TWO CLOCKS?’ Forget about them. Meaning no disrespect to judge Tannenbaum—who issued a lengthy concurring opinion articulating why he believes the ‘two clocks’ are useful if not controlling, Judge Bilbrey likewise issues a concurring opinion explaining Judge Tanenbaum’s concurring opinion “…is not the opinion of the Court” and “has no precedential value.” This was done in apparent deference to the confusion the original opinion caused among bench, bar, and claims--and astute observation that absent such clarifier, confusion might again result: it is what enables me to stand behind my terse description of “THE HOLDING.”
THEN WHAT DOES IT ALL MEAN? With the JCC’s order below (related solely to ‘provision of medical’)"set aside" and the court’s original Ortiz opinion substituted, it is (largely) as though neither ever existed. This has significant consequences: any JCC order issued since original publication of Ortiz purporting to rest on perceived precedent set by it now rests on vapor, and if those are the sole grounds upholding a determination (which has not become final already, i.e., provided error was preserved via notice of appeal or pending rehearing) such JCC holdings too are now unsupported and must be re-determined based on conventional, pre-Ortiz ‘two years/one year’ SOL law.
In conclusion. Is it conceivable ‘two clocks’ could return one day, if Judge Tanenbaum rallies a majority? Yes, conceivable, but not likely. The momentum of the law as traditionally construed, coupled with confusion seen already, should give another judge pause before signing on to the ‘two clocks’ theory in a later case. (There is also a potentially problematic reference to "annual checkups" re the SOL, but earlier in the opinion the court clearly specified care must be medically necessary, which should help clarify that no one can just pop up and ‘rubber stamp’ another year.)
This outcome is going to help my claims clients in several pending appeals, as I have, from the start, described the entire "two clocks" discussion, indeed any discussion of the statute of limitations computations in Ortiz, as pure dicta and not part of the actual holding, i.e., the ratio decidendi of the case, and it is gratifying to be vindicated in that regard.
Happy holidays to all!