DIANNE MCFARLANE, APPELLANT,
v.
MIAMI-DADE TRANSIT AUTHORITY AND MIAMI-DADE COUNTY RISK MANAGEMENT, APPELLEES

Fla. 1st DCA | 2017-04-11
No. CASE NO. 1D16-2080
ROBERTS, C.J., WOLF and B.L. THOMAS, JJ, CONCUR.
215 So. 3d 658 Florida District Court of Appeal, First District (2017) Positive Treatment
Cited by 3 cases

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Synopsis

In this workers' compensation appeal, the claimant challenged the denial of continued medical care with an originally authorized physician. The court reversed the lower court's decision, holding that the employer/carrier waived an acquiescence defense by failing to properly raise it in the pretrial stipulation as required by Florida Administrative Code Rule 60Q-6.113(2)(a).


Holding

The court held that the employer/carrier waived the acquiescence defense by failing to properly assert it in the pretrial stipulation as required by Florida Administrative Code Rule 60Q-6.113(2)(a). The word 'acquiescence' did not appear in the pretrial stipulation and was only raised in the trial memorandum filed less than a week before the final hearing, without demonstration of good cause for the omission. Therefore, the JCC improperly considered the defense in denying the claim.


Headnotes

[1] A defense not raised in the pretrial stipulation is waived unless the stipulation is amended for good cause shown.

[2] An amendment to a pretrial stipulation cannot be used to raise a new defense that could have been raised initially, absent good cause.

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Key Quotes

“ah available defenses not raised in the pretrial stipulation are waived unless thereafter amended by the judge for good cause shown”

Establishes the controlling procedural rule that defenses must be raised in pretrial stipulation or be waived absent good cause

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Facts & Procedural History

Following a workplace accident on August 6, 2009, Claimant received authorized medical treatment from Dr. Hodor for a right wrist injury and Dr. Bayli…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this workers’ compensation case, Claimant appeals the Judge of Compensation Claims’ (JCC’s) denial of her claim for continued medical care with Dr. Hodor, a previously authorized medical provider. The JCC based his decision on a finding that Claimant acquiesced to the authorization of another provider as her one-time change of physician from Dr. Hodor. Because we find that the JCC improperly considered the E/C’s acquiescence defense, we reverse.

Following her workplace accident on August 6, 2009, Claimant received authorized medical treatment from Dr. Hodor for a right wrist injury and from Dr. Baylis for a right shoulder injury. In 2011, Claimant requested a one-time change of physician from Dr. Baylis in accordance with paragraph 440.13(2)(f). Paragraph 440.13(2)(f) provides that upon the grant of a one-time change, the originally authorized physician shall become deauthorized upon written notification by the E/C. In a timely response, the E/C authorized a change from Dr. Baylis to Dr. Feanny. After receiving treatment from Dr. Feanny for both the right wrist and right shoulder injuries, Claimant filed a petition for benefits (PFB) in 2015, which sought authorization of continued care with Dr. Hodor. Although the claims adjuster had testified only months earlier that Dr. Feanny was the one-time change from Dr. Baylis, that Dr. Baylis was no longer authorized, and that Dr. Hodor remained authorized, the E/C sent a deauthorization letter to Dr. Hodor shortly after the PFB was filed.

Florida Administrative Code Rule 60Q-6.113(2)(a) states, in pertinent part, that “ah available defenses not raised in the pretrial stipulation are waived unless thereafter amended by the judge for good cause shown” and that “[ajbsent an agreement of the parties, in no event shall an amendment or supplement be used to raise a new claim or defense that could, or should have been raised when the initial pretrial stipulation was filed, unless per*660mitted by the judge for good cause shown.” In the pretrial stipulation, the E/C asserted a defense that Claimant had previously requested a one-time from Dr. Ho-dov, who is no longer authorized, and that the authorized physician is Dr. Feanny, who has been treating Claimant since the onetime change. Significantly, the word “acquiescence” does not appear at all in the pretrial stipulation and was not mentioned by the E/C until their trial memorandum was filed less than a week before the final healing. The E/C have not established good cause for this omission. We are unpersuaded by the E/C’s argument that the absence of the word “acquiescence” in the pretrial stipulation is irrelevant because this defense was somehow implicit in the words that were used.

We also find no merit in the E/C’s argument that they were not required to raise acquiescence as a defense because it is not an affirmative defense. It appears self-evident that acquiescence is an affirmative defense under these circumstances; but even if we were to assume otherwise, the pretrial rule applies to all defenses.

In short, by failing to comply with the applicable pretrial rule, the E/C here waived any defense based on acquiescence. We therefore REVERSE and REMAND for entry of an order granting the claimed benefits in accordance with this opinion.

ROBERTS, C.J., WOLF and B.L. THOMAS, JJ, CONCUR.


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Citator

Cited By

  • Teco Energy, Inc. v. Williams, 234 So. 3d 816 (Fla. 1st DCA 2017)
    …ned the “substance” of the waiver defense under section 440.20(4) and, as such, was properly raised. This Court recently rejected an argument that an issue was “implicitly” raised in a pretrial stipulation. See McFarlane v. Miami-Dade Transit Auth., 215 So. 3d 658 (Fla. 1st DCA 2017). But, even assuming in light of McFarlane that Florida Administrative Code Rule 60Q-6.113(2)(h) permits an affirmative defense to be raised “in substance,” there is no such evidence in this case. The E/C specified in the pretrial…
  • Silberman v. Miami Dade Transit, 927 F.3d 1123 (11th Cir. 2019)
    ….” Adding to the intrigue, MDT has been a named defendant in two recent state-court decisions, seemingly without incident. See Melendez v. Miami-Dade Cty. Transit, 217 So. 3d 1138 (Fla. 3d Dist. Ct. App. 2017); McFarlane v. Miami-Dade Transit Auth., 215 So. 3d 658 (Fla. 1st Dist. Ct. App. 2017). Happily, we needn't hazard an Erie guess about whether MDT is sui juris because Silberman doesn't challenge the district court's determination that it isn't. Because, as explained below, a defect in a party's capacity…

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